Imbusi Luvonga v Pamba Luvonga

Court of Appeal, at Kisumu

December 2, 1988

Nyarangi, Masime JJA & Kwach Ag JA

Civil Appeal No 90 of 1987

(Appeal from the High Court at Kakamega, Aganyanya J)

Appeal – appeals from the High Court to the Court of Appeal – High Court sitting in appeal from a decision made by Resident Magistrate’s court on appeal from a District Magistrate’s Court – whether appeal against the decision of the High Court to the Court of Appeal competent - Civil Procedure Act (cap 21) section 71A

The appellant was a defendant in a land case filed in the then Lurambi African Court. The case was taken over, heard and determined by a District Magistrate’s Court of the third class which found in favour of the appellant.

The respondent appealed against that decision to a Resident Magistrate’s Court, which upheld the decision of the District Magistrate and dismissed the appeal.

The issue for decision was whether an appeal lay against the decision of the High Court to the Court of Appeal.

Held:

1. The appeal to the High Court being an appeal from decree passed by the Resident Magistrate’s Court on an appeal on a point of law from a court of a District Magistrate of the third class, it was final by virtue of the Civil Procedure Act (cap 21) section 71A (1) and (2).

2. The appeal before the Court of Appeal was therefore incompetent.

Appeal struck out.

Cases

No cases referred to.

Statutes

Civil Procedure Code (cap 21) section 71A(1), (2)

Elijah Shamalla Benjamin Momo v Gerry Chibeu

Court of Appeal, at Kisumu

December 1, 1988

Nyarangi, Masime JJA & Kwach Ag JA

Civil Appeal No 169 of 1986

(Appeal from a judgment of the High Court at Kakamega, Aganyanya J)

Land law – controlled transaction – sale of agricultural land – party applying for consent of land control board more than six months after the transaction – whether application valid –Land Control Act (cap 302) sections 6, 8, 9.

The respondent entered into an agreement to sell a piece of agricultural land to the appellant. The respondent later reneged on his commitment to this sale by entering into another sale agreement for the same land to a third party. The appellant lodged a caution against the title and took possession of the land.

The respondent filed a plaint seeking the removal of the caution and for the eviction of the appellant in which the latter gave evidence that the original agreement had been signed on February 6, 1982 and the consent forms had been sent to the District Officer on 4th February, 1983.

The High Court held that the parties had entered into a controlled transaction which required the consent of the Land Control Board and that as no consent had been obtained, the agreement was void.

The appellant appealed.

Held:

1. Since the purported application for consent was submitted long after the expiry of a period of six months and was made without seeking an order from the High Court for extension of time as required by the Land Control Act (cap 302), there was no valid application pending before the Board.

2. It followed that the agreement for sale was void for all purposes for lack of consent under section 6 of the Land Control Act.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Land Control Act (cap 302) sections 2; 6, 6(1)(a); 8, 8(1); 9, 9(2); 11; 13

Advocates

Mr Kagucia for the Appellant

Mr Azangalala for the Respondent

Nzoia Sugar Company Limited v Fungututi

Court of Appeal, at Kisumu

July 29, 1988

Platt, Apaloo JJA & Masime Ag JA

Civil Appeal No 7 of 1987

(Appeal from the Judgments of the High Court at Kakamega, Gicheru & Aganyanya JJ)

Tort – malicious prosecution – how malicious prosecution proved – whether acquittal of accused person per se sufficient basis for a claim for malicious prosecution – relevance of malice and ill-will – how malice may be imputed against an artificial person.

Employment law – wrongful dismissal – failure of claimant to lead evidence on terms of employment, his entitlement to notice before termination and reason for dismissal – claimant awarded damages for wrongful dismissal–– whether award proper.

Following a report made to the police by a security officer employed by the appellant, the respondent, who was also an employee of the appellant, was arrested and charged with the offence of stealing by servant. However, the court found that the respondent had no case to answer and discharged him under the Criminal Procedure Code (cap 75) section 210.

The respondent filed a suit in the High Court claiming that as a result of the prosecution, he had been injured in his reputation and suffered pain of body and mind and that he had been dismissed from employment.

The respondent’s pleadings did not set out the specific reliefs sought but the court nevertheless found in his favour and assessed damages for unlawful dismissal and bodily injury as they had been suggested in evidence.

The appellant appealed.

Held:

1. The respondent had not given any clear evidence that the appellant company had dismissed him from employment. The damages awarded to the respondent on the basis that he had established a case of wrongful dismissal could therefore not be supported.

2. Not only was no evidence given of the respondent’s terms of employment, his reason for dismissal and the length of notice he was entitled to be given before his employment could be terminated, there was evidence that the respondent had tendered his resignation before his arrest and prosecution.

3. The respondent appeared to claim damages for both defamation and malicious prosecution. He could not have been properly awarded damages for defamation because at the time he brought the suit, his cause of action for defamation had expired - Defamation Act (cap 36) section 20.

4. Acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor. The mental element of ill-will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company.

5. The respondent gave no evidence from which it could be reasonably inferred that the security officer of the appellant company made his report to the police on account of hatred or spite.

6. The damages awarded to the appellant, whether in defamation, wrongful dismissal or malicious prosecution, could not be supported.

Appeal allowed.

Cases

No cases referred.

Statutes

1. Defamation Act (cap 36) section 20

2. Criminal Procedure Code (cap 75) section 210

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

4. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 6,7

Owuor v Kenya Medical Research Institute, Malaria and Other Protozol Diseases Research Center

Court of Appeal, at Kisumu

 June 27, 1988

Gachuhi, Apaloo & Masime JJA

Civil Appeal No 25 of 1987

(Appeal from a judgment and decree of the High Court at Kisumu, Butler-Sloss J)

Landlord and Tenant – tenancy – determination of tenancy – whether landlord can refuse to accept possession because tenant breached the covenant to do repairs.

The issue on this appeal was on the appellant’s/landlord’s refusal to accept possession of the premises on the determination of the tenancy for the reason that the tenant had committed a breach of the covenant to repair.

Held:

1. As a matter of law, on the determination of a tenancy, a landlord cannot refuse to accept possession of the premises for the reason that the tenant committed a breach of the covenant to repair. The tenant only incurs an obligation to repair.

2. In this case, such repairs as there were had been done by the tenant and the only compensation that the landlord could receive would be mesne profits for any period that the tenant could be shown to have held over.

3. No special damages were proved and no general damages were proved beyond the cost of repairs which the tenant had met.

Appeal dismissed.

Republic thro’ Olum v Angungo & 5 others

Court of Appeal at Kisumu

June 23, 1988

Platt, Apaloo JJA & Masime Ag JA

Criminal Appeal No 168 of 1987

(Appeal from an Order of the High court at Kisumu, Omolo J)

Appeal – right of appeal - how such right conferred – whether such right may be implied where it is not expressly provided by statute – decision of the High court refusing to admit an appeal out of time – High court dismissing application in the absence of the applicant - whether an appeal can lie against such decision to the Court of Appeal – whether Court of Appeal having supervisory jurisdiction - Criminal Procedure Code (cap 75) section 361(8).

Statutes – Interpretation of statutes – Criminal Procedure Code (cap 75) section 361(8) – statute providing that certain decisions of the High court shall be final – High court making such decision without hearing one party – whether an appeal can lay against such decision – whether statute intended to deny right of appeal in such cases.

Natural justice - right to be heard - audi alteram partem - High Court dismissing application in the absence of applicant - statute law providing that such decision shall be final - whether the principles of natural justice violated - whether High Court’s decision appellable to the Court of Appeal- whether Court of Appeal having supervisory jurisdiction over the High Court.

The appellant applied to the High court to extend the time in which to file an appeal against the decision of a magistrate’s court dismissing his private prosecution case against the respondents.

The court fixed the hearing date for the application and wrote to the advocates for the parties to inform them. The appellant’s advocate’s letter was misaddressed, so that it did not reach the advocate and he did not attend the hearing. The application was therefore heard ex parte and dismissed.

The Criminal Procedure Code (cap 75) section 361(8) provided that a refusal by the High court to admit an appeal out of time under section 349 was final.

The appellant nevertheless appealed to the Court of Appeal. He argued that the section did not operate to bar an appeal where, like in his case, a party has been shut out from a hearing through no fault of his own. He argued that the order of the High court was ultra vires because it did not comply with the rule of natural justice audi alteram partem (hear the other side).

Held:

1. A right of appeal from one tribunal to another cannot arise unless such right has been conferred by statute.

2. The Court of Appeal enjoyed only that jurisdiction which was conferred on it by statute and it had no general supervisory role over the judicial process.

3. Not only was a right to appeal to the Court of Appeal in a case like the present one not conferred, but it was expressly barred by the Criminal Procedure Code (cap 75) section 361(8).

Appeal dismissed.

Cases

1. Magon v Ottoman Bank [1968] EA 156

2. Craig v Kanseen [1943] 1 All ER 108; 1 KB 256

3. Mulindwa, Yusufu v R (1950) 17 EACA 131

4. Nyakinyua & Kang’ei Farmers Co Ltd v Kariuki & Gathecha Resources Ltd (No 2) [1984] KLR 110

5. Kabulu v R (No 2) [1985] KLR 220

6. Wamburu v R (1953) 20 EACA 339

7. Ngua v R [1983] KLR 539

8. Kariuki & Another v R [1988] KLR 76

9. Wasike v Wamboko [1988] KLR 429

10. Anarita Karimi Njeru v R (No 2) [1979] KLR 162

11. Re Racal Communications [1981] AC 374; [1980] 2 All ER 634

12. R v Nealon (1950) 17 EACA 120

13. Ralph v R [1960] EA 310

14. Mudavadi v R

15. Munene v R [1978] KLR 105

16. Cozens v North Devon Hospital Management Committee & another

[1966] All ER 799

Texts

Wade, HWR (1971) Administrative Law Oxford:Clarendon Press 3rd Edn

Statutes

1. Criminal Procedure Code (cap 75) sections 202, 347, 347(1), 361,

361(1), 361(8), 349, 379(3)

2. Civil Procedure Rules (cap 21 Sub Leg) order IX rule 10

3. Civil Procedure Act (cap 21) section 67(2)

4. Court of Appeal Rules (cap 9 Sub Leg ) rule 32(2)

5. Constitution of Kenya section 64(1)

6. Appellate Jurisdiction Act (cap 9) section 3(1)

Advocates

Mr. O Opiyo for the appellant

Mr. Gumba-Onywera for the Respondents

Okong’o v Attorney-General & another

Court of Appeal, at Kisumu

May 11, 1988

Platt, Apaloo JJA & Masime Ag JA

Civil Appeal No 170 of 1986

(Appeal from the Judgment and Decree of the High Court at Kisumu, Butler-Sloss J)

Employment Law – employment contract – civil servant interdicted and dismissed from employment with loss of terminal benefits after conviction for theft – whether employee entitled to be reinstated - whether a court can order reinstatement in respect of a dismissed employee.

Contract – contract of service - employment law – employee convicted of theft by servant – whether such conviction is a disability or disqualification for purposes of section 9 of the Probation of Offenders Act (cap 64).

The appellant, who had been an employee of the Ministry of Labour, was convicted of theft of money and placed on probation for two years. The appellant was interdicted by his employer and dismissed with the loss of all terminal benefits.

The appellant sued the Attorney-General claiming that although he had been interdicted and finally dismissed, he had never been reinstated. He asked the court for an order of reinstatement and in the alternative, the payment of his full terminal benefits.

The Attorney-General admitted these facts but argued that the Minister had been justified in refusing to reinstate the appellant. The High Court found in favour of the Minister and observed that the appellant, by having been convicted of theft, had forfeited his terminal benefits.

The appellant appealed.

Held:

1. The Service Commissions Act (cap 185) or its Regulations does not declare that on conviction for theft, a public servant is disqualified from holding office. His contract is simply terminated if that is desired by the employer and that is a different type of action to the one where a court or body concerned declares a disqualification on conviction under the Probation of Offenders Act (cap 64).

2. At common law, by which this Court was guided on contract, specific performance of a contract of service has never been ordered because the Court has felt it impossible to force the services of an employee onto an employer, when the latter has lost all confidence and trust in the employee.

3. It followed that once an employee has been dismissed, whether rightly or wrongly, the dismissal stands, and if the contract has been broken by the employer, damages for breach of contract is the remedy to which the employee is entitled.

4. This Court needed not consider the alternative prayer that the appellant be given his terminal benefits.

Appeal dismissed.

Cases

1. Lulume v Coffee Marketing Board [1970] EA 155

2. Kyobe v East African Airways [1972] EA 403

3. R v Akan [1972] 3 All ER 285; 56 Cr. App. R 716; [1973] 1 QB 491; [1972]3 WLR 866; 116 SJ 902

Texts

Hailsham, Lord et al (Eds) (1976) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XI para 570

Statutes

1. Probation of Offenders Act (cap 64) sections 4, 9(1)

2. Public Service Regulations (cap 185 Sub Leg) regulation 25, 25(3), 25(1), 25(2), 24

3. Law of Contract Act (cap 23) generally

4. Employment Act (cap 226) section 17(g)

5. Powers of the Criminal Courts Act 1973 [UK] section 13

6. Criminal Justice Act 1948 (UK) section 12

7. Service Commissions Act (cap 185)

Advocates

F E Wasuna for the Appellant

J M Bwonwonga for the Respondent

Khayadi v Herbert Aganda

Court of Appeal, at Kisumu

April 29, 1988

Hancox, Gachuhi JJA & Masime Ag JA

Civil Appeal No 167 of 1986

(Appeal from the Judgment and Order of the High Court at Kakamega, Aganyanya J)

Land law – land dispute – reference of dispute to panel of elders – how panel of elders derives its jurisdiction – elders determining dispute and entering award without a reference from court – party later applying to court to adopt the award – whether procedure proper – whether elders having jurisdiction – Magistrates’ Courts Act (cap 10) section 9A.

Arbitration – reference to arbitration by court – reference of land dispute to a panel of elders under the Magistrates’ Courts Act (cap 10) – how jurisdiction conferred on panel of elders – whether elders having jurisdiction where dispute has been referred to them by the parties without a pre-existing suit – whether elders’ award capable of being adopted by a court.

The appellant complained to a District Officer against the respondent in respect of a piece of land which the respondent was said to have purchased from the appellant’s father. The complaint was registered as a land dispute and was heard by a panel of elders who thereafter made an award.

The respondent thereafter made an application to a Resident Magistrate’s Court for the adoption of the award and for judgment to be entered in its terms. The appellant applied to the same court for the setting aside of the award. The court granted the respondent’s application, declaring him the legal owner of the disputed land.

The appellant’s appeal to the High Court in which he challenged the jurisdiction of the elders was dismissed.

The appellant appealed to the Court of Appeal.

Held:

1. Under the Magistrates’ Courts Act (cap 10) as amended by the Magistrates’ Jurisdiction (Amendment) Act No 14 of 1981, panels of elders derive their jurisdiction to deal with land disputes from references by the Courts (section 9A).

2. A suit has to be filed in court for the magistrate to determine the issues involved and then be referred to the elders who should file their award in court. The elders cannot of their own deal with such disputes merely because parties submit to them.

3. There was no valid suit in existence at the time this matter was purportedly referred to the elders, or when they delivered their award.

4. That being the case, there were no proceedings in being in which there could be a valid reference to arbitration, by the elders or by anyone else, under the Civil Procedure Rules order XLV rules 1 to 3.

5. Though there appeared to have been a valid land dispute at the District Officer’s office, the proceedings thereat did not purport to be under any statutory provision, for instance, Land Adjudication Act (cap 284) section 12.

6. In those circumstances, the ruling of the magistrate adopting the elders’ award was made without jurisdiction. The matter was therefore not properly before this Court.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Land Control Act (cap 302) generally

2. Civil Procedure Rules (cap 21 Sub leg) order XLV rules 13, 14, 15, 17(2)

3. Arbitration Act (cap 49)

4. Land Adjudication Act (cap 284) sections 12, 29

5. Magistrates’ Courts Act (cap 10) section 9A

6. Magistrates’ Jurisdiction (Amendment) Act 1981

Advocates

Appellant in person.

Respondent in person.