Gitau & 2 others v Wandai & 5 others

High Court, at Nairobi

 1989

Tanui J

Civil Case No 2100 of 1987

Succession – intermeddling with property – whether a contract for sale of shares in land which eventually becomes void amounts to intermeddling – Law of Succession Act (cap 160) section 45.

Succession – letters of administration - grant of letters of administration to take effect from the date of grant.

Consent – consent judgment – advocates entering into a consent on behalf of their clients without ascertaining whether clients had capacity to enter into a consent – whether such consent can be invalidated.

Civil Practice and Procedure – consent – invalidation of consent – whether party aggrieved to apply in the same suit or file a fresh suit.

The plaintiffs, who were administrators of the estate of one Daniel Gitau Mute, brought this suit seeking to nullify proceedings in a previous suit in which the defendants purported to sell a piece of land which they held in common shares with the deceased.

Although the sale did not take place as the purchaser failed to pay the balance of the purchase price within six months as stipulated in the agreement, a consent was entered into by the parties to the previous suit.

The plaintiffs in the present suit contended that the plaintiffs in the previous suit not having obtained letters of administration in respect of Mr Gitau’s estate, they had no legal capacity to enter into any consent and their entry into a sale agreement amounted to intermeddling with the affairs of the deceased.

Held

1. Intermeddling with property of a dead person consists of taking possession, disposing or otherwise intermeddling with any free property.

2. In the instant case the act of intermeddling which could be considered was the fact that Jermiah Kamau Gitau signed the sale agreement. This agreement became void hence the deceased’s share remained intact.

3. An administrator of an estate derives his title from the grant of letters of administration and the deceased’s property rests on him only as from the date of grant.

4. The title of an administrator unlike that of an executor does not relate back so as to cure an invalidity of a suit purported to have been filed by an administrator in a representative capacity before a grant is made to him.

5. A consent judgment can be interfered with if given without sufficient material facts or in misapprehension or in ignorance of material facts.

6. The consent judgment could be challenged in the suit itself but that did not rule out the bringing of a separate suit.

Cases

1.Wasike v Wamboko [1988] KLR 429

2. Ingall v Moran [1944] 1 KB 160; 60 TLR 120; 113 LJKB 298; [1944] 1 All ER 97

3. Hilton v Sutton Steam Laundry [1946] KB 65; 115 LJKB 33; [1945] 2 All ER 425

4. Finnegan v Cementation Co Ltd [1953] 1 QB 688

5. Bowler v John Mowlem & Co [1954] 3 All ER 556

6. Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266

Texts

Mitter, RC, (1953) Mulla on the Code of Civil Procedure Bombay: NM Tripathi Private Ltd 12th Edn vol II p937

Statutes

1. Law of Succession Act (cap 160) section 45

2. Civil Procedure Rules (cap 21 Sub Leg) Order VII rule 4(1)

Whispering Palms Hotel Ltd v Computech East Africa Ltd

High Court, at Nairobi December 16, 1987

Aluoch J

Civil Case No 1108 of 1982

Contract - law of contract – consideration failure of – plaintiff paying to the defendant money on account purchase of computer – contract of sale unsuccessful due to failure by the defendant to secure a financier – whether deposit paid by plaintiff is refundable.

The plaintiff sued the defendant for refund of a sum of Kshs 158,445 being money had and received by the defendant on an agreement whose consideration totally failed.

The plaintiff who wished to purchase a computer to set up a computer services bureau met one Mr Schukla who represented that he was doing freelance work for the defendant which had better computers known as “Wang” computers.

Mr Schukla also represented that the defendant company could finance the purchase of the computers. After negotiations a 30% deposit being Kshs 158,500 was paid by the plaintiff to the defendant on behalf of Coast Computer Company (in incorporation).

It was at this stage agreed that the defendant company would arrange to finance the whole deal on a lease purchase basis. The Managing Director of the defendant company assured Mr Pandya (a representative of the plaintiff) that he would get the finance arranged since he had good business relations with Diamond Trust of Kenya.

A provisional agreement was therefore signed in which the leasing company was named as Diamond Trust Company Ltd. Diamond Trust Company Ltd were quite happy to finance the project if either the plaintiff was the one buying the computer or in the case of a new company with no known financial backing, a letter of guarantee from a known reputable company.

The plaintiff furnished the said letter of guarantee to Diamond Trust Ltd who despite this declined to finance a new company. Detailed facts are contained in the judgment of Aluoch J.

Held:

1. The responsibility of finding a financier for the purchase of the computer with Diamond Trust of Kenya or any other financier for that matter, lay with the defendant company and not the plaintiff.

2. The fact that Diamond Trust of Kenya Ltd which was named as the leasing Company did not finance the deal meant the defendant did not discharge his obligation and in these circumstances the deal for the purchase of the computer failed.

3. The plaintiff had proved on a balance of probabilities that it was entitled to the refund of a sum of Kshs 158,445 from the defendant company as this was money received by the defendant upon a total failure of consideration.

Judgment for the plaintiff.

Cases

No cases referred to.

Statutes

No statutes referred.

Enock Owiti Okanja v Billy Onyango & another

High Court, at Nairobi December 14, 1987

Butler-Sloss J

Civil Case No 3642 of 1987

Burial dispute – person entitled to bury a deceased person – two parties claming right to bury on account of being married to the deceased under customary law – determination of who was the lawful husband of the deceased – matters the court will consider in such determination.

Customary law – Luo Customary law - marriage – essentials of a Luo customary marriage - two parties claiming right to bury deceased person on account of being married to her – plaintiff co-habiting with deceased without paying pride price – deceased living with the first defendant after estrangement with the plaintiff – whether deceased the lawful wife of the first defendant.

The plaintiff filed a suit against the defendants seeking an order permitting him to bury the remains of one Christine who he claimed was his wife.

The first defendant however asserted that the deceased was his wife at the time of her death and he counterclaimed against the plaintiff asking to be allowed to bury the remains of the deceased.

The second defendant was the officer in charge of the mortuary in which the deceased’s body was preserved but he took no part in the proceedings.

Held:

1. On the evidence, the plaintiff had not paid any dowry or bride price for his alleged marriage to the deceased.

2. At the time of the marriage between the first defendant and the deceased, the deceased was not married to the plaintiff or anybody else and was capable of contracting a marriage with the defendant.

3. The marriage of the deceased to the first defendant complied with Luo custom in the matter of consent, payment of agreement money and payment of bride price.

4. The Court had considered not only the question of bride price but also the fact that the plaintiff and the deceased had been on bad terms for many years so that the deceased left him for the first defendant, who then became the de facto husband, and later the de jure husband of the deceased.

Judgment for the First Defendant.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Mr Ger for the Plaintiff

Mr Ombogo for the for the First Defendant

Second Defendant absent, unrepresented.

Njuki v Commissioner of Lands & 4 others

High Court, at Nairobi December 8, 1987

Owuor J

Cause No 3225 of 1982

Civil Practice and Procedure – striking out pleadings – circumstances when courts may order - Civil Procedure Rules order VI rule 13.

The applicants brought an application by way of chamber summons under order VI rule 13(1) seeking an order to strike out proceedings earlier filed by way of originating summons.

The reasons upon which the applicants sought an order for striking out the originating summons were that the four respondents were not entitled to any compensation in respect of the suit premises under the Land

Acquisition Act (cap 295) because the agreement for sale between the respondents and the applicant’s father under which the respondents were claiming did not obtain consent of Land Control Board.

They contended further that the respondents were not entitled to any compensation because even if the agreement were held valid the respondents were only entitled to a refund of money paid under the agreement in the event that it fails.

The applicants also contended the respondents were not “persons interested” within section 2 of the Land Acquisition Act and Section 6 of the Land Control Board Act.

Held:

1. The practice in our courts which is now well established is that the court will only exercise its discretion under order VI rule 13 when it is satisfied that the defence on record or in this particular case the replying affidavit does not raise any triable issues at all.

2. The fact that the consent lists to whom the land was to go would indicate that this is an issue that would have been dealt with in a full hearing where evidence would be called.

3. If the legislature wished to restrict interest only to a legal interest, it would have done so by clearly stating that compensation would only be given to proprietors or trustees or legal owners of the land in issue.

4. Whether or not the applicants can establish an interest as indicated in the Act would be a matter of evidence and would only be resolved after a full hearing.

Application refused

Cases

No cases referred to.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 13(1)(a), 13(3)

2. Land Acquisition Act (cap 295) sections 2, 8, 10, 13

3. Land Control Act (cap 302) sections 6, 7

4. Registered Land Act (cap 300) section 3

Ndabi v Republic

High Court at Nairobi November 25, 1987

Porter & Bhandari JJ

Criminal Appeal No 875 of 1986

(Appeal from the Chief Magistrate’s Court at Nairobi, Buch Esq)

Sentencing – evidence in sentencing - evidence relative to sentencing – matters the court may consider in sentencing - whether proper for court to consider evidence of offences other than the offence charged and evidence of accused person’s bad character – stage at which such evidence may be given – Evidence Act (cap 80) section 57 – Criminal Procedure Code (cap 75) sections 207, 216

Criminal Practice and Procedure – charge – giving of the facts of the charge by the prosecution – whether proper for prosecution to state matters extraneous to the charge – stage at which the court may consider evidence of offences other than the offence charged – Criminal Procedure Code (cap 75) sections 207, 216

Criminal Practice and Procedure – pleas – plea of guilty – appeal against conviction on plea of guilty – whether such appeal competent where the plea is unequivocal.

Evidence – -character evidence – evidence of offences other than the offence charged – evidence of accused person’s bad character – when such evidence may be given – test to apply in considering the admission of such evidence - Evidence Act (cap 80) section 57 – Criminal Procedure Code (cap 75) sections 207, 216.

The appellant was convicted on his own plea of guilty for distribution of seditious publications under section 57(1)(c) of the Penal Code (cap 63) and he was sentenced to imprisonment for 7 years.

As to the offence charged, the facts given were that the appellant had distributed 100 copies of seditious publications in Kiambu Township. When the prosecutor gave the facts to the court, his comments included matters which were not contained in the charge and which amounted to allegations that the appellant had committed the offences of being a member of an unlawful society and taking and administering unlawful oaths.

The appellant appealed and sought leave to amend his petition of appeal so as to include grounds of appeal against conviction but that leave was refused.

Held:

1. The appellant’s plea was unequivocal and he had been properly convicted. No appeal against such conviction could be allowed by virtue of section 348 of the Criminal Procedure Code (cap 75).

2. The Constitution in section 72(1) and the Criminal Procedure Code (cap 75) section 207 enjoin a trial court to sentence an accused person only for the offence with which he is charged, and that the facts to be given are to be facts relating to the case.

3. If the prosecution wishes to have the accused dealt with for other offences which are not charged, then the accused can be charged with those offences or, if in the High Court but not in the subordinate court, that accused may ask the Court to take other offences into consideration. This is a basic principle to which section 216 of the Criminal Procedure Code is subject.

4. It is improper for a prosecutor, after conviction and before sentence, to make any statement to the court against the convict which if challenged he would be unable to prove by legally admissible evidence. The prosecutor is restricted by section 207 of the Criminal Procedure Code to the facts upon which the charge is founded.

5. It is important to understand what fact is in issue at the time that the prosecutor is giving the facts of the alleged offence since under the Evidence Act (cap 80) section 57(1), this will determine whether to admit evidence that the accused person has committed or been convicted of or charged with an offence other than the one with which he is then charged or evidence that he is of bad character.

6. Under the universally followed procedure in Adan v Republic [1973] EA 446, the facts of the charge are given after plea of guilty and before conviction. The matter in issue at that time is the question of conviction and is the procedure by which the trial magistrate establishes that the plea is unequivocal. It is after conviction that the magistrate can turn to evidence relevant to sentencing in section 216 of the Criminal Procedure Code.

7. Since the matter at issue at that stage is the question of conviction, and since the respondent submitted that the plea was unequivocal, and this Court agreed, it followed that other offences alleged to have been committed were not relevant as to the matter in issue, that is, conviction.

8. In consideration of the matter of conviction, the mere allegation that other offences have been committed, even if admissible under the Evidence Act, would be more prejudicial to the accused than probative and should have been excluded by the trial magistrate on that basis.

9. Having been satisfied that to convict is proper, and having entered a conviction, the trial magistrate then turns to sentence, at which stage the fact in issue most often is the accused person’s involvement in the offence charged, and the seriousness of the offence vis-a-vis the society. There is no procedure by which the prosecutor can relate the evidence of other offences to the court at this stage, and the test to apply is whether admitting such evidence will be more prejudicial than probative.

10. Prejudice lay in the danger that the trial magistrate may, when considering sentence, deal with the accused not only for the offence before him, but also for the other offences, which is what happened in this case.

Appeal against conviction dismissed. Appeal against sentence allowed, sentence of three and a half years substituted.

Cases

1. R v Gulam Hussein (1946) EACA 167

2. R v Ghulamhussein [1959] EA 743

3. Adan v Republic [1973] EA 445

4. Shiani v Republic [1972] EA 557

5. R v Malakwen Arap Kogo[1933] KLR 115

6. R v Seguja (1935) EACA 85

7. R v Robinson [1969] CLR 207

8. Ogalo s/o Owuora v Republic (1954) 21 EACA 270

9. Nilsson v Republic [1970] EA 599

10. Wanjema v Republic [1971] EA 493

11. Wanyoni v Republic [1980] KLR 116

Statutes

1. Penal Code (cap 63) section 57(1)(c)

2. Criminal Procedure Code (cap 75) sections 207, 216, 248

3. Constitution of Kenya section 72(1)

4. Evidence Act (cap 80) section 57(1)

Advocates

Mr B Chunga for the Republic.

Company Law-winding-up- petition to wind up the respondent East African Publishing House-where the respondent was indebted to the petitioner under an arbitration award made – where the petitioner submitted that the said amount was duly demanded from the respondent and in the circumstances it was deemed that the Respondent was unable to pay its debt –where the petition was supported by other creditors-where the Industrial Commercial Development Corporation who were the debenture Holders of the company opposed the petition- where the Receiver had not yet filed a Statement of Affairs- whether it was in the greater interest of justice that the petition be stood over to enable the Receivers to submit their Statement of Affairs- Sec. 220 Companies Act (Cap 486)