Khayigila v Gigi & Co Ltd & another

Court of Appeal, at Mombasa November 26, 1987

Nyarangi, Gachuhi & Apaloo JJA

Civil Appeal No 119 of 1986

(Appeal from the High Court at Mombasa, Bhandari J)

Vicarious liability – master and servant – distinction between servant and independent contractor – when owner of a car may be liable for the negligence of its driver – vehicle driven by repair man against express instructions of owner – vehicle involved in accident – whether owner vicariously liable for accident - whether repair man an agent of owner or an independent contractor.

The 1st respondent firm was the owner of a motor-vehicle of which one Zainul was employed as the driver. When Zainul noticed some dents on the vehicle’s bodywork, he entrusted the repair work to the 2nd respondent who agreed to undertake the work for a consideration. Zainul drove the 2nd respondent to a place where the repairs were to be carried out and handed the ignition keys to him so that he could put the car in a nearby garage for the night. Zainul expressly instructed the 2nd respondent not to drive the vehicle except for that purpose. That night, however, the 2^nd respondent drove the vehicle to a place about two miles away where he knocked down and injured the appellant, a pedestrian.

The appellant sued the 2nd respondent as the tortfeasor and the 1^st respondent as the person vicariously liable for the accident. The 2^nd respondent’s liability was not contested but the High Court absolved the 1st respondent from liability.

Among the submissions made by the appellant on his appeal against the decision of the High Court was that the distinction between a servant and an independent contractor was too technical and that where a vehicle is insured, vicarious liability should be imposed as a matter of equity and public policy.

Held:

1. In order to fix liability on the owner of a car for the negligence of its driver, it was necessary to show either that the driver was the owner’s servant, or that at the material time the driver was acting on the owner’s behalf as his agent.

2. To establish the existence of the agency relationship, it is necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.

3. At the time of the accident, the 2nd respondent was not using the car at the 1st respondent’s request but he was using it furtively against its instructions. He was not an agent of the 1st respondent but an independent contractor.

4. Therefore, no liability attached to the 1st respondent on the well-known principle of respondeat superior and the High Court’s conclusion in that regard could not be faulted.

5. The legal rule for imposing vicarious liability should be the same whether the person sought to be affixed with responsibility for the wrong-doing of another is insured or not and there was no sound reason of equity or public policy compelling the Court to conclude otherwise.

Appeal dismissed.

Cases

1. Morgans v Launchbury [1971] 2 All ER 606

2. Anyanzwa v Gasperis [1981] KLR 10

3. Bachu v Wanaina [1982] KLR 108

4. Nakuru Automobile House Ltd v N Ziaudin [1987] KLR 317

Statutes

No statutes referred.

Advocates

Mr Jiwaji for the Appellant.

Mr Satchu for the 1st Respondent.

Securicor (Kenya) Limited v EA Drapers Limited & another

Court of Appeal at Mombasa September 28, 1987

Platt, Apaloo JJA & Masime Ag JA

Civil Appeal No 67 of 1985

(Appeal from the High Court at Mombasa, Bhandari J)

Appeal – Court of Appeal – application for leave to amend the memorandum of appeal–– hearing by single judge–– right of reference to a full bench.

Appeal – Court of Appeal – jurisdiction of – duty of to hear and decide a new point or question of law at appeal – exercise of discretion – guiding principles – factors that must be taken into account.

The appellant made an application for leave to amend its memorandum of appeal. The application was disallowed by a single judge of the appellate court prompting the reference to a full court.

Held:

1. A formal application for leave to amend under rule 44 of the Court of Appeal Rules should be heard first by a single judge, as provided by Rule 52, without prejudice to the full bench’s right to give leave to amend on an informal application during the hearing of an appeal under rule 44 (2) of the rules. The full bench may vary, discharge or reverse the decision of the single judge after rehearing the matter.

2. Whenever a question of law is raised upon the construction of a document for the first time at appeal the Court of Appeal has a duty to entertain the plea and decide upon it provided it is satisfied that it is established beyond doubt that the supporting evidence if fully investigated would support the plea.

3. The court of appeal has a discretion to admit a new point at appeal. However the discretion must be exercised sparingly, the evidence must all be on the record, the new point must not raise disputes of fact and it must not be at variance with the facts or case decided by the court below.

4. (Obiter) It is wrong for the court of appeal to leave undisturbed an incorrect statement of the law or a misunderstanding of the law merely because it is unchallenged. The court has a duty to correct the uncertainty.

Reference dismissed, amendments allowed.

Cases

1. United Marketing Co v Hasham Kara [1963] EA 276

2. Amarshi Madhavji c Sardarilal Ltd [1977] KLR 8

3. The Connecticut Fire Insurance Co v Kavanagh (1882) 61 LJ PC 6

4. North Staffordshire Railway Co v Edge [1920] AC 254

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 44(1),(2); 52, 54

2. Penal Code (cap 63) section 306A

3. Evidence Act (cap 80) section 47A

Advocates

Mr Gautama for the Applicant.

Mr Inamdar for the Second Respondent.

Stephens & 6 others v Stephens & another

Court of Appeal, at Mombasa July 24, 1987

Nyarangi, Apaloo JJA & Masime Ag JA

Civil Appeal No 18 of 1987

(Appeal from the High Court at Mombasa, Bhandari J)

Succession – intestate succession – duties and functions of a personal representative of an estate – when trustee is guilty of breach of trust – consequences of breach.

Limitation of Actions – application of - actions against trustee by beneficiary – when cause of action begins to accrue – application of limitation period on actions for recovery of trust property – when the beneficiaries can be said to be guilty of laches – cause of action.

The 1st respondent was the administrator of the deceased’s estate as trustee for the appellants who were beneficiaries of the estate. The respondent transferred the property he held as trustee to himself and the 2nd respondent to own jointly. The appellant upon discovering this instituted a suit in the High Court seeking a court order asking the 1st respondent to account and distribute the rest of the assets to the beneficiaries and to declare the appellants the beneficial owners of the suit property. The respondents argued in the High Court that the appellants lost interest in the plot and their claim was time barred. The judge found in the respondent’s favour hence this appeal.

Held:

1. A personal representative of a deceased is under a duty to pay all debts of the intestate and thereafter distribute the rest of the estate to his beneficiaries.

2. A trustee is liable for a breach of trust if he fails to do what his duty as a trustee requires; or if he does what as trustee he is not entitled to do.

In this instance the respondent as trustee in transferring the trust property to himself was guilty of breach of trust.

3. The appellants did not acquiese to the breach of trust and no laches could be alleged as they took steps to lodge the caveat against the title as soon as they learnt of the breach.

4. The period of limitation as prescribed in the Limitation of Actions Act

(Cap 22) section 20(1)(b), do not apply to actions by a beneficiary under a trust which is an action to recover from the trustee trust property or proceeds thereof converted by the trustee for his own use.

Appeal allowed.

Cases

No cases referred to.

Texts

Nathan JA, Marshall RO, (1975) Cases and Commentary on the Law of

Trusts London: Stevens & Sons p 662

Statutes

1. Limitation Ordinance (cap 11)

2. Limitation Act 1939 [UK] section 19(1)

3. Limitation of Actions Act (cap 22) section 20(1)(b)

Nakuru Automobile House Ltd v Ziaudin

Court of Appeal at Mombasa July 24, 1987

Nyarangi, Platt & Gachuhi JJA

Civil Appeal No 63 of 1986

(Appeal from a judgment of the High Court at Mombasa, Kneller J)

Vicarious liability – master and servant – when vehicle owner may be held liable for the negligence of its driver – company vehicle lent to four persons by managing director – company not involved in decision to lend vehicle – vehicle used to assist a director of the company participating in racing competition – vehicle involved in accident – whether company liable.

A car belonging to the appellants was involved in a collision with the respondent’s lorry. Three occupants of the appellant’s car died. The respondent sued the appellants in the High Court for damages and compensation for the loss of his lorry which was written-off as a result of the collision.

Evidence was given that the appellant company owned the car which was used by its directors for business trips. The managing director lent it to four persons who would use it to enjoy the 1975 Safari Rally. The appellant company did not participate in the rally but the car could be used to assist one of its directors who was taking part in it.

The High Court found in favour of the respondent/plaintiff and awarded him damages.

The appellant appealed against the decision arguing, among other things, that the judge erred in holding that its car was being driven in the course of its employment.

The respondent’s advocate argued that as the appellant was a dealer in motor spares and stood to gain from its director’s participation in the rally, it should be held liable.

Held:

1. In order to fix liability on the owner of a car for the negligence of its driver, it is necessary to show either that the driver was the owner’s servant or that at the material time, the driver was acting on the owner’s behalf as his agent.

2. To establish the agency relationship, it is necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions and was doing so in performance of a task or duty delegated to him by the owner.

3. The appellant company did not participate in the decision to lend its vehicle to the four persons as it was kept out of the decision by the managing director who lent the vehicle. The company had nothing to benefit from the use of the vehicle by the four.

4. The managing director did not on behalf of the appellant company delegate a task or duty to be performed by the four persons to whom he lent the vehicle.

5. The appellant company’s vehicle was not being used wholly or partly for the appellant company’s business or purpose and the company could not be liable for any negligence on the part of the driver.

Appeal allowed.

Cases

1. Selle and another v Associated Motor Boat Company Ltd and others [1968] EA 123

2. Omrod and another v Crosville Motor Services and another [1953] 2 All ER 753

3. Morgans v Launchbury [1972] 2 All ER 606

4. Anyanzwa v Gasperis [1981] KLR 10

Statutes

No statutes referred.

Advocates

Mr A B Shah for the Appellant.

Mr Suchak for the Respondent.

Hamisi Bakari & another v Republic

Court of Appeal, at Mombasa July 21, 1987

Platt, Gachuhi & Apaloo JJA

Criminal Appeal No 217 of 1986

(Appeal from the High Court at Mombasa, Bhandari J)

Criminal law – handling stolen property contrary to Penal Code (cap 63) section 322(2)–– ingredients of the offence – difference between handling goods by dishonestly receiving them and handling by dishonestly retaining them – meaning of “suspicion”, “knowledge” and”“reason to believe” that the goods are stolen.

Evidence – evidence of a co-accused – uncorroborated evidence of one accused person against his co-accused – need for court to warn itself of the danger of such evidence.

Sentencing – severity of sentence – caution the court should apply where there is a severe minimum sentence prescribed.

The appellants were charged with burglary and theft but were convicted on an alternative charge of handling stolen property contrary to section 322(2) of the Penal Code (cap 63). The charge on that count stated that they had, otherwise than in the course of stealing, dishonestly received certain property knowingly or having reason to believe it to have been stolen or unlawfully obtained.

In convicting the appellants, the trial magistrate had observed that they had dishonestly undertaken or assisted in the retention of the stolen items despite the knowledge that they had been dishonestly obtained. As the appellants’ appeals to the High Court were unsuccessful, they appealed further to the Court of Appeal.

Held:

1. In a charge of handling stolen goods under the Penal Code (cap 63) section 322(1), the prosecution after having proved that the goods are stolen, it is necessary to prove that the accused handled them either by receiving, by undertaking to assist in their retention, removal disposal, realisation or for the benefit of another person or that he arranged to do so.

2. The appellants had been convicted for an offence not charged; they were convicted for handling stolen property by way of dishonestly retaining it whereas they had been charged with handling the property by way of dishonestly receiving it.

3. Receiving stolen goods is not the same thing as retaining stolen goods.

The importance of the distinction is that where the charge is for handling the goods by way of receiving them, the accused must know or have reason to believe that they were stolen at the time he received them whereas on a charge of handling by way of retaining the goods, the accused must have such knowledge at the time he retained them.

4. The other distinction in the two offences is that the accused must have possession where the charge is for handling by way of receiving the goods while possession is not necessary in a charge of retaining the goods as he may be undertaking or assisting to retain the goods.

5. “Suspicion”, “knowledge” and”“reason to believe” that something is stolen do not mean the same thing. “Suspicion” is an inchoate state of mind inclining to, or entertaining the impression, that a certain conclusion may yet be reached. “Knowledge” is the mature stage of that process when the conclusion has been reached. “Reason to believe” is an objective evaluation of the facts upon which a mature conclusion should be reached, but which the individual has failed to reach, because he has shut his eyes to the facts before him.

6. If the uncorroborated evidence of the first appellant was to be taken against the second appellant who was his co-accused, then it would have been desirable for the lower courts to warn themselves of the danger of acting on such evidence, similar to the warning given in cases of accomplices, because of the danger of a co-accused seeking to serve some purpose of his own. No such warning was resorted to in this case.

7. There was no evidence on the record by which a charge of jointly receiving of the allegedly stolen items by the appellants could be sustained.

8. Where there is a heavy minimum sentence prescribed for an offence, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.

Appeals allowed.

Cases

1. R v Pitchley (1972) 57 Cr App R 30

2. R v Shears [1969] Crim LR 319

3. R v Nicklin (1977) 64 Cr App R 205; [1977] 2 All ER 444

4. R v Prater (1960) 44 Cr App R 83; [1960] 1 All ER 298;(1960) 2 QB

464; [1960] 2 WLR 343

5. R v Russell (1968) 52 Cr App R 147

Texts

Mitchell, S.G et al. (1976) Archbold: Pleading, Evidence and Practice in Criminal Cases London: Sweet & Maxwell 39th Edn

Statutes

1. Penal Code (cap 63) sections 279(b); 304(2); 322; 322(1),(2); 323

2. Criminal Procedure Code (cap 75) sections 26, 188, 354

3. Theft Act 1968 [UK] section 22 (1)

Advocates

Appellants unrepresented.

Hemedi Suleiman v Republic

Court of Appeal, at Mombasa July 21, 1987

Platt, Gachuhi & Apaloo JJA

Criminal Appeal No 201 of 1986

(Appeal from the High Court at Mombasa, Rauf J)

Criminal Practice and Procedure – appeal – first appeal – duty of first appellate court - duty to consider and scrutinise the evidence as a whole and to give a decision thereon–– whether failure to perform duty giving rise to error of law.

Criminal Practice and Procedure – charge – reducing of a charge – reducing charge of capital robbery to simple robbery – circumstances in which court may reduce such a charge - Penal Code (cap 63) section 296(1), (2).

Criminal law–– intent – common intent – mere possession of item stolen by co-accused in a separate incident - whether sufficient to show common intent to rob.

The appellant was convicted and sentenced in a magistrate’s court on two counts of robbery under section 296(1) of the Penal Code (cap 63). On his first appeal, the High Court summed up the matter in about three lines and upheld the decision of the trial court. The appellant filed a second appeal in which he argued that he had not been properly identified as one of the robbers and that the High Court had not scrutinised some of the evidence.

At appeal, the opinion of the court was sought on the practice by trial courts of finding accused persons guilty of the lesser type of robbery under section 296(1) though charged with aggravated robbery under section 296(2).

Held:

1. A first appellate court should subject the evidence of the case as a whole to fresh and exhaustive scrutiny. The appellant was in his first appeal entitled to the court’s own consideration and views of the evidence as a whole and its own decision thereon.

2. There was a failure by the first appellate court to give a fresh and exhaustive treatment of the evidence was a whole which gave rise to an error of law.

3. There was sufficient evidence, including evidence of identification, on which the appellant’s conviction on the first count was based.

4. In the absence of a finding of common intent or joint possession, it was wrong for the lower courts to find the appellant to have been in possession of an item allegedly stolen by his co-accused in a separate

robbery. It would therefore be unsafe to uphold the appellant’s conviction on the second count.

5. Obiter: Where capital robbery is charged under section 296(2) of the Penal Code, and the evidence supports the charge, it is the duty of the trial court to uphold the law and not to reduce the charge to one of simple robbery under subsection (1) for so-called humanitarian reasons.

6. Obiter: In the present case, the charge was correctly reduced because the robbers had threatened to use violence and they did not wound, beat, strike or use any other personal violence, and the alleged pistol was not a real weapon but a toy.

Appeal against conviction on count 1 dismissed and sentence upheld, conviction on count 2 quashed and sentence set aside.

Cases

1. Pandya v R [1957] EA 336

Statutes

1. Penal Code (cap 63) section 296(1), (2)

2. Criminal Procedure Code (cap 75) section 361

Aloyce Mariera v Kenya Bus Services (Msa) Ltd

Court of Appeal, at Mombasa April 30, 1987

Miller CJ, Nyarangi & Platt JJ A

Civil Appeal No 92 of 1986

(Appeal from the High Court at Mombasa, Bhandari J)

Appeal - jurisdiction – to consider evidence – appreciation and evaluation of evidence – jurisdiction of court of appeal to reconsider and reach its own conclusions on evidence adduced at trial court – principles upon which the appellate court may proceed.

Employment – wrongful dismissal – damages for wrongful dismissal – justification for dismissal – Employment Act (cap 226) section 14 (1) – whether party relying on a statute needs to plead the provision specifically – whether one can rely on a statutory provision which is not pleaded.

Civil Practice and Procedure – pleadings - matters that must be pleaded – whether statutory provisions must be pleaded - failure to plead contract upon which the statutory provisions apply – reliance on documents not pleaded and statutory provisions – Civil Procedure Rules Order VI Rules 3(1) and (2).

Evidence- evaluation of – by trial judge – duty of court to consider all relevant evidence – failure to take evidence into account – consequences thereof.

The appellant instituted a suit in the High Court against the respondent for wrongful dismissal from employment. The High Court dismissed the claim with costs. The appeal was on two main grounds, namely the trial court admitted irrelevant evidence and secondly that the judge erred in not allowing the appellant to produce the employment contract and documents so as to prove that he lost by the wrongful dismissal.

Held:

1. In first appeals from a trial the Court of Appeal must reconsider the evidence, evaluate it and make its own conclusion, bearing in mind that it has neither seen nor heard the witnesses and appropriately allowing for that. However if the trial court failed on some relevant point to consider some particular circumstances, the court would not feel bound to accept the judge’s findings of fact.

2. Where a party seeks to rely on relevant statutory provisions, the same need not be pleaded. The provisions of the Employment Act that the employees sought to rely on were statutory provisions that applied to the contract. The fact that the contract was not pleaded was irrelevant.

Dissenting opinion of Platt JA:

1. An employer in defence of an action for wrongful dismissal may rely on a different fact from that relied on at the time of dismissal, provided that the good ground existed infact, it is immaterial whether or not it was known to the employer at the time of the dismissal.

2. It is necessary for a party to plead the terms of contract fully. The Civil Procedure Rules Order VI Rule 3(1) and (2) requires the substance of a document to be relied on to be set out and pleaded.

Appeal allowed.

Cases

1. Selle and another v Associated Motor Boat Co Ltd [1968] EA 123

2. Peters v Sunday Post Limited [1958] EA 424

3. Ombanya v Gailey & Roberts Ltd [1974] EA 552

4. Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339

5. Baillie v Kell (1838) 4 Bing NC 638

Texts

1. Hailsham Lord et al. (Eds) (1976) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XVI para 647

2. Batt, FR (1967) Law of Master and Servant London: Pitman 4th Edn p76

Statutes

1. Employment Act (cap 226) sections 5(3),14,14(1),14(6),17(g)

2. Penal Code (cap 63) section 330

3. Civil Procedure Rules (cap 21 Sub leg) order VI rules 3(1),3(2); order VII rule 6

Advocates

Mr Juma for the Appellant

Mr Satchu for the Respondent

Savings & Loan Kenya Ltd v Odongo

Court of Appeal, at Mombasa April 30, 1987

Nyarangi, Platt & Gachuhi JJA

Civil Appeal No 6 of 1987

(Appeal from the High Court at Mombasa, Aragon J)

Civil Practice and Procedure - hearing - right of parties to be heard - duty of the court to hear all parties.

Jurisdiction - of Court of Appeal - to hear appeals from the High Court emanating form the Rent Restriction Tribunal - Rent Restriction Act (cap 296) sections 8,(1),(2),(4), (2) & (3) - whether the court has inherent jurisdiction to grant a stay of execution of an order of eviction – different aspects and purposes of inherent powers.

Execution - stay of execution - application for stay of execution – whether court can order stay in exercise of its inherent powers.

The appellants sued the respondents in the Rent Restriction Tribunal, which held that the case had no merit and dismissed it. They appealed to the High Court against the judgment of the Rent Restriction Tribunal and the appeal was allowed. The respondents applied for stay of execution of the decree pending the hearing of the application for review of the judgment. The order for stay of execution was granted, without the appellants being heard. The appellants appealed arguing that they were denied the opportunity to be heard and secondly that the legal approach was misconceived.

Held:

1. The very foundation upon which any judicial system rests is that a party who comes to court shall be heard fairly and fully. The court is duty bound to hear all parties to a case and failure to do so is an error.

2. There is no appeal allowed to the Court of Appeal from the High Court’s Order for eviction because the Rent Restriction Act (cap 296) does not permit such an appeal.

3. The court has the inherent jurisdiction to stay execution in the alternative to Civil Procedure Rules XLI Rule 4.

4. The Civil Procedure Act (cap 21) section 3A preserves the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

5. The courts, in cases of this nature, should exercise its inherent power in a fit case, so that the appeal may not be rendered nugatory.

6. A court may stay in exercise of its inherent powers execution of proceedings, execution and or operation of an order if the necessities of justice so require.

Appeal allowed.

Cases

1. Singh, Ujagar v Runda Coffee Estates Ltd [1966] EA 263

2. Msst Brij Coomaree v Ramnick Das [1901] 5 Case WN 781

3. State of Uttar Pradesh v Mukhtar Singh (1957) AA 505

4. Sarat Kumar v Official Assignee [1971] 31 AC 79

5. Ramendra Nath Roy v Bibhaati Deuf (1942) 42 AC 488

6. Mohamed Alli v Dharamsey (1931) 55 Bom 801

7. Wilson v Church (1879) 11 Ch D 576

Texts

Venkatarama, TL, (1967) Mulla on the Code of Civil Procedure Bombay: NM Tripathi Private Ltd 13th Edn Vol 1 p 578

Statutes

1. Civil Procedure Act (cap 21) sections 3,3A,80

2. Civil Procedure Rules (cap 21 Sub Leg) order XXI rule 22; order XLIV rule 1; order XLI rule 4

3. Rent Restriction Act (cap 296) section 8

4. Rent Restriction (Amendment) Act of 1981 sections 8(1), 8(2), 8(3), 8(4)

5. Civil Procedure Code [India] section 151

Advocates

Mr Khanna for the Appellants.

Mr Aboo for the Respondents.