Kabocha & 2 others v Kamau & another

Court of Appeal, at Nairobi December 8, 1987

Apaloo JA

Civil Application No NAI 37 of 1987

(In an intended appeal from a ruling of the High Court at Nairobi, Shields J)

Extension of time – extension of time for filing appeal – Court of Appeal Rules rule 4 – nature of court’s discretion in extending time.

Appeal – parties to appeals – effect of death of party – respondent to appeal dying after lodging of notice of appeal – whether appeal rendered incompetent – Court of Appeal Rules rule 83

The applicants sought extension of time to file an appeal on the ground that copies of proceedings and judgment were received after the expiry of the time prescribed for filing an appeal.

The applicants, however, had not copied the letter requesting for the record of the proceedings to the respondent.

It transpired during the hearing of the application that the first respondent had died after the lodging of the notice of appeal and in that regard, it was argued that the application was incompetent as it sought orders against a dead person.

Held:

1. The Court of Appeal Rules rule 4, which empowers this Court to enlarge time on any grounds it deems just, confers an unlimited discretion to extend time subject only to the requirement of justice.

2. As the applicants had not copied the letter requesting for copies of the record of the proceedings to the respondent, they were precluded by the proviso to rule 81 of the Court of Appeal Rules from excluding from the prescribed time the time required for the preparation and delivery of the copies.

3. The Court of Appeal Rules evinced a clear intent that an appeal by or against a party should not be negated by the fortuitous circumstance of the death of either party. Under rule 83(2), this application could be served on the legal representative of the deceased respondent once he was duly appointed.

Application stood down sine die pending a Registrar’s certificate and service of application on a legal representative of the first respondent.

Cases

1. Najeno v Serwanga [1974] EA 322

2. Dawson v Dove [1971] 1 All ER 554

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 4, 74(1), 77, 81, 83(2)

2. Civil Procedure Act (cap 21) section 2

Advocates

Mr Khanna for the Respondents.

Gabriel Kamau Njoroge v Republic

Court of Appeal, at Nairobi December 7, 1987

Platt, Apaloo JJA & Masime Ag JA

Criminal Appeal No 149 of 1986

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

Criminal Practice and Procedure – appeal – first appeal – duty of first appellate court to weigh evidence and make its own findings on issues of fact and law – whether failure to perform that duty may give rise to matter

of law for a second appeal - when misdirections on material points become matters of law.

Evidence – identification – dock identification–– whether dock identification reliable where no previous identification parade was conducted.

The appellant was convicted in a magistrate’s court for robbery contrary to section 296(1) of the Penal Code (cap 63). Evidence had been given of a robbery at a golf club in which the complainant was robbed of his vehicle,

a firearm and some personal effects. Nine days later, the appellant was arrested with the stolen firearm by a police officer who had pursued him from the scene of a second robbery at a bank.

 No identification parade was conducted but the complainant purported to identify the appellant in court as one of the persons who had taken part in the first robbery. The appellant denied his involvement and stated that during the second robbery, he was only a bystander and had been falsely arrested.

On the first appeal, the High Court made short findings and concluded that though the identity of the appellant was somewhat doubtful, his conviction would be upheld on the doctrine of recent possession the stolen firearm. The appellant filed a second appeal.

Held:

1. It is the duty of the first appellate court to remember that the parties are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions. The court should however bear in mind that it has neither seen nor heard the witnesses and it should make due allowance in that respect.

2. If the first appellate court fails to carry out that duty, it becomes a matter of law on second appeal whether there was any evidence to support the conviction. Misdirections and non-directions on material points are matters of law.

3. A dock identification is worthless and a court should not rely on such an identification unless it has been preceded by a properly conducted identification parade. A witness should be asked to give a description of the accused and then a fair identification parade should be arranged.

4. There was evidence, though not overwhelming, that the appellant was found in recent possession of the complainant’s firearm and, accordingly, the Court of Appeal would not interfere with the findings of the lower courts in that regard.

5. The inference to be drawn from the appellant’s possession of the firearm was a matter of law. The High Court had properly drawn the inference that the appellant was in recent possession of the stolen firearm and that he had participated in the first robbery. He was therefore rightly convicted.

Appeal dismissed.

Cases

1. Pandya v R [1957] EA 336

2. Ruwalla v R [1957] EA 570

3. Kiarie v Republic [1984] KLR 739

4. Gidamebanya v R (1953) 20 EACA 318

5. Roria v R [1967] EA 583

6. R v Mohammed bin Allui (1942) 9 EACA 72

7. R v Shabani bin Donald (1940) 7 EACA 60

8. R v Turnbull [1976] 3 All ER 549; [1976] Crim LR 56; [1976] 3 WLR 445

Texts

1. Rachhodas, R & Thakore, DK (1958) The Law of Evidence (The Indian Evidence Act) Bombay: The Bombay Law Reporter Office 13th Edn p 151

2. Mitchell, SC (1970) Archbold Criminal Pleading, Evidence and Practice London: Sweet & Maxwell 40th Edn para 1348

Statutes

Penal Code (cap 63) section 296(1)

Advocates

Appellant unrepresented

N Harwood, Senior State Counsel, for the Republic

J K Industries v Kenya Commercial Bank Ltd & another

Court of Appeal, at Nairobi November 20, 1987

Nyarangi, Platt and Apaloo JJA

Civil Application No 130 of 1987

(In an intended appeal from a ruling of the High Court at Nairobi,

Dugdale J)

Civil Practice and Procedure – injunction – application for interim injunction against receiver manager pending appeal against refusal of such injunction by High Court–– matters the court will consider–– whether status quo should be maintained - Court of Appeal Rules rule 5(2)(b).

Company law – receivership – right of debenture holder to appoint receiver and manager - reluctance of court to interfere with that right where it is properly exercised.

The applicant company obtained monies from the two respondent banks which were secured by debentures entitling the banks to appoint receivers and managers with power to sell, let or concur in the selling or letting of any charged property.

After the applicant company failed to comply with a demand for repayment made by the first respondent, the latter appointed a receiver and manager over the company’s assets. This it did jointly with the second respondent or with its approval.

The applicant instituted a suit and obtained an interim injunction ex parte restraining the disposition of its assets by the receiver manager. When the application for injunction was heard inter partes, the court declined it and the ex parte injunction was discharged. The applicant appealed against the decision and filed this application under rule 5(2)(b) of the Court of Appeal Rules urging the Court to restrain the receivers and managers from disposing its assets pending the determination of the appeal.

Held:

1. The issue that this Court was required to consider was whether the status quo should be maintained pending the hearing of the appeal. In order to attract the Court’s discretion, the applicant must show that a reasonable argument can be put forward in support of the appeal.

2. Where a debenture holder’s right to appoint a receiver to manage a company’s affairs accrues, it is a matter for the judgment of business when that right should be exercised and it is not the business of courts. Indeed, the courts have held that a debenture holder is under no duty to refrain from exercising its rights because doing so might cause loss to the company or its unsecured creditors.

3. The applicant had failed to present a reasonable case that the first respondent bank was estopped from exercising its contractual right to appoint a receiver or that the second respondent bank was precluded by law from appointing a receiver without making a formal demand for repayment of its debt.

4. The directors of the applicant company had not shown that they could provide an acceptable undertaking in damages and there was little doubt that the two respondent banks were in a position to pay any damages that the company may suffer in the unlikely event of the latter being successful in its suit.

5. Greater hardship would be caused in granting this application than in refusing it.

Application dismissed.

Cases

1. Giella v Cassman Brown & Co Ltd [1973] EA 358

2. Salim v Okong’o [1976] KLR 42

3. Jethabhai v Fischer Civil Appeal No 5 of 1980 (unreported)

4. Butt v Rent Restriction Tribunal [1982] KLR 417

5. Madhupaper International Ltd v Kerr [1985] KLR 846

6. Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] 2 All ER 633

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(b)

Advocates

Mr Mutula Kilonzo for the Applicant.

Mr George Oraro for the First Respondent.

Mr K A Fraser for the Second Respondent

Mundiar t/a Kabarak Development Services v Tradewheel Kenya Ltd

Court of Appeal, at Nairobi

 November 17, 1987

Platt, Apaloo JJA & Masime Ag JA

Civil Appeal No 120 of 1987

(Appeal from a Ruling and Decree of the High Court at Nairobi, Butler-Sloss J)

Landlord and Tenant – agreement to lease - party claiming possession

of premises on account of agreement to lease made with the owner – whether agreement giving party any interest in the premises – whether party entitled to evict occupier of the premises.

Injunctions – interlocutory injunction - circumstances in which it may be proper to refuse injunction and order status quo to be maintained – applicant relying on agreement to lease made with owner of premises – occupier claiming similar right of occupation – parties in pari materia – whether proper to grant injunction restraining one party from occupying the premises.

The appellant brought a suit for a declaration that the respondent was not entitled to enter or use certain premises and he sought an injunction to restrain it from continuing its occupation of the premises.

The claim was based on an alleged agreement the plaintiff had made with the owners of the premises to lease it to him. He averred that he was handed vacant possession of the premises but the respondent had entered into the premises wrongfully and in his absence. The respondent, on its part, argued that it had rightfully taken possession and occupation of the premises.

The judge refused to grant an injunction, observing that it would be proper to leave things as they stood. The appellant filed his application for an injunction in the Court of Appeal.

Held:

1. An agreement for a lease does not in itself give a party any interest in land due to the provisions for registration. In this case, neither party had a concluded agreement upon which to rely and it followed that neither party had any interest in the land.

2. However, the respondent was in possession and the appellant could only attack the position of the respondent on the strength of some title of his own, not by pleading that the land belonged to the owner.

3. Both parties having at one time been given the right to use the land by its owner, they were in pari materia. The judge exercised his discretion in a reasonable manner and this Court would not interfere with his decision.

Appeal dismissed.

Cases

1. Berry (HC) Ltd v Brighton and Sussex Building Society [1939] 3 All ER 217

2. Spottiswoode Ballantyne & Co Ltd v Doreen Appliances Ltd and Barclay (London) Ltd [1942] 2 All ER 65

Texts

Megarry, R., Wade, HWR (1975) The Law of Real Property London: Stevens & Sons Limited 4th Edn pp 1005 -1009

Statutes

No statutes referred.

Advocates

Mr. Makecha for the Appellant

Mr. Wambeyu for the Respondent