Njoki v Republic

High Court at Nairobi

December 2, 1988

Mbito Ag J, Shah CA

Criminal Appeal No 687 of 1987

(Appeal from conviction and sentence of the Resident Magistrate’s Court at Kiambu, R K Mwangi Esq)

Minor – evidence of a minor–– child aged 12 years testifying as a complainant in criminal trial – whether complainant a child of tender years under the Evidence Act (cap 80) section 124 – whether complainant’s evidence requiring corroboration – meaning of child of tender years -Penal Code (cap 63) section 14(1).

The appellant was tried in a magistrate’s court, convicted and sentenced to imprisonment for two and a half years’ with 6 strokes of the cane for committing an unnatural offence contrary to section 162 of the Penal Code (cap 63).

The prosecution evidence involved the testimony of the complainant, a young boy aged 12 years, the evidence of a doctor regarding injuries and spermatozoa in the complainant’s anus and that of the complainant’s brother who testified that he had seen the appellant go in the direction of the complainant on the material day.

The Evidence Act (cap 80) section 124 provided that an accused person shall not be liable to be convicted on the uncorroborated evidence of a child of tender age.

Among the issues that the High Court had to consider on the appellant’s appeal was whether the complainant was a child of tender years whose evidence needed corroboration.

Held:

1. Within the meaning of section 124 of the Evidence Act (cap 80), a child of tender years seemed to be a child who is legally immature and incapable of being responsible for his own actions and they include children under the age of eight years who under section 14(1) of the Penal Code (cap 63) are not criminally responsible for any acts or omissions.

2. The Evidence Act (cap 80) section 124 only applied to children under the age of eight years upon whose uncorroborated evidence no conviction could be based.

3. The complainant in this case was aged 12 years. He was therefore not a child of tender years whose evidence required corroboration as a matter of law.

4. However, as the complainant was not over the age of 14 years, his evidence still needed corroboration as a matter of practice and the court had to caution itself of the dangers of convicting on the uncorroborated evidence of such a child before acting on such evidence.

5. The trial magistrate had found the complainant to be an intelligent child who knew why he should speak the truth and allowed him to take an oath. He was a truthful witness and his evidence was safe for basing a conviction even though it was uncorroborated in a material particular.

6. The appellant’s appeal had no merit and his sentence of two and a half years’ imprisonment was not manifestly excessive or harsh in the light of the offence.

Appeal dismissed.

Cases

No cases referred to.

Texts

Concise Oxford Dictionary (1979) Oxford: Oxford University Press

Statutes

1. Penal Code (cap 63) sections 14(1), 162

2. Children and Young Persons Act (cap 141)

3. Evidence Act (cap 80) section 124

Advocates

Appellant unrepresented.

P N Mugo, State Counsel, for the Respondent.

Joseph Muthusi & 2 others v William Gathogo & 2 others

High Court, at Nairobi November 28, 1988

Mbito J

Civil Case No 3432 of 1988

Trade Union – Trade Union rule- whether court can interfere with decisions made by majority of members according to the rules - court not to involve itself in day to day running of a union.

Injunctions - interlocutory injunctions - principles on which injunctions are granted - the principles in the case of Giella v Cassman Brown - extension and manifestation of the principles.

The plaintiffs filed a suit against the defendants and concurrently therewith sought an injunction restraining them from conducting elections of a Trade Union known as Kenya Engineering Workers Union until the determination of the suit.

The suit was occasioned by a letter written by the Union’s General Secretary informing Emco Steel Works Ltd that there would be a meeting of the Union members working for the said company at which shop stewards would be checked to represent the workers within the company in the Union.

The plaintiff disputed the validity of the notice convening the meeting alleging that the meeting would be in contravention of the Union rules. They alleged that the plaintiffs who had since been elected to represent the workers in the industry were unlikely to attend the meeting which would be to the detriment of workers.

Held:

1. The Union has its own rules, the observance of which can be enforced by a majority of the membership insisting on their observance. If wrong decisions are made then the members must be deemed to have so agreed where the rules permit the majority to make decisions.

2. In such cases it would be futile for the court to interfere where the irregularity is a breach of a regulation which can be regularized by a majority of the membership and does not affect a member’s membership directly.

3. It would be futile for the court to involve itself in the day to day running of a union such as the current one which has its own rules governing itself.

4. Although it cannot be said that the principles of granting injunctions have been settled it can however be stated that in Kenya the principles have been broadly indicated in the case of Giella v Cassman Brown.

5. Recent decisions appear to have modified the requirement regarding the existence of a triable issue. They also stress the need for maintenance of status quo rather than monetary compensation.

Application dismissed.

Cases

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

2. Otieno v Ougo & another (No 2) [1987] KLR 400

3. Gheewala, Maheschandra Shamjibhai v Aruna B Gheewala & others Civil Application No NAI 27 of 1986

Statutes

Trade Unions Act (cap 233)

Advocates

Mr Geda for Applicants

Mr Jaffer for Respondents

Ahmed & 3 others v Magugu

High Court, at Nairobi November 17, 1988

Akiwumi J

Civil Case No 2632 of 1988

Civil Practice and Procedure – summary judgment - leave to defend – court to grant leave to defend unless the defence is bogus.

Civil Practice and Procedure – affidavit evidence – where there are many disputed issues – whether such issues can be resolved by affidavit evidence.

The plaintiff sought summary judgment against the defendant in the sum of Kshs 9,500,000/= which he claimed was the balance of the purchase price due from the defendant for the purchase of 85% of the shares in Kamiti Tanners (Kenya) Limited owned by the plaintiff.

The agreement for sale stated that the defendant had made a down payment of Kshs 2,500,000 the receipt of which the plaintiff acknowledged hence the defendant contended that the claim for Kshs 9,500,000 was incorrect.

The defendant further showed in his affidavit that upon execution of the agreement for sale of shares he was credited with the sum of Kshs 1,490,000 being the value of certain vehicles which did not to form part of the assets of Kamiti Tanners.

Held:

1. The general rule is that unconditional leave to defend should be given unless there is reasonable ground for holding that the defence put forward is bogus.

2. The various payments which the defendant claims he made are issues that cannot be resolved on the affidavit evidence.

3. There were triable issues disclosed in this case which had to go for trial.

Application refused.

Cases

1. Kenya Properties Ltd v Abhay Kumar Sharma Civil Appeal No 76 of 1983

2. Jones v Stone [1894] AC 122

3. Giciem Construction Company v Amalgamated Trades & Services [1983] KLR 156; [1982-88] 1 KAR 309

4. Camille v Merali [1966] EA 411

5. City Printing Works (Kenya) Ltd v Bailey [1977] KLR 85

6. Gupta v Continental Builders Ltd [1978] KLR 83

Statutes

No statutes referred.

Njoroge & 104 others (suing in representative

capacity for Kariobangi South Civil Servants

Estate tenant Purchasers) v Savings & Loan

Kenya Ltd & another

High Court, at Nairobi November 16, 1988

Tanui J

Civil Case No 2236 of 1988

Civil Practice and Procedure – review – distinction between review and appeal - review on grounds of error apparent on the face of the record - what constitutes the record - when such a review may be granted.

Civil Practice and Procedure – record of the court - what constitutes the record - Civil Procedure Rules order XLIV rule 1(a).

Civil Practice and Procedure – error on the face of the record – court making an order affecting a larger number of parties than contained in the amended pleadings – whether an error on face of the record.

The 1st defendant applicant sought review of an earlier court order whereby an injunction was granted to restrain the applicant from disposing of the plaintiffs’ houses until the final determination of the suit.

The review was sought on the ground that there was an error apparent on the face of the record.

At the hearing of the initial application an objection was taken by the applicant application challenging the plaintiffs’ authority to bring an action on behalf of 309 other members.

A ruling was given thereon allowing amendment to reduce the other members represented to 104. The application for injunction thus proceeded and a ruling was given granting the plaintiffs’ prayer for injunction. That ruling became the subject matter of the application for review.

Held:

1. A point which may be good ground of appeal may not be a ground for an application for review. Thus an errorneous view of evidence or law is no ground for a review though it may be a good ground for an appeal.

2. An application for review should not be taken as a form of appeal. To warrant a review of an error alleged to be on the face of a record, such an error ought to be so clear as to be without dispute.

3. Applying the above test to the instant case, it was clear that almost all the grounds advanced and canvassed by the applicant were not proper grounds for review.

4. A record includes documents which are the basis of the decision as well as the statement of the decision itself.

5. The order for injunction affected 309 houses whereas the court earlier on reduced the number to 104. This was an error apparent on the face of the record. This court had jurisdiction and duty to correct this error on a review.

Review allowed.

Cases

1. Balinda v Kangwamu [1963] EA 557

2. Regina v Patents Appeal Tribunal ex parte Swift & Co [1962] 2 QB 647; [1962] 1 All ER 610

Texts

Venkataraman, TLA (Ed) (1967) Mulla on the Code of Civil Procedure Bombay: NM Tripathi Private Ltd 13th Edn

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 2, 3; order XLIV rules 1, 1(a), 4; order L rule 16

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

3. Code of Civil Procedure [India] order XLIV rule 1

Advocates

Mr C Bakhoya for the Plaintiffs

John Ambani Muhani & another v National Bank of Kenya Ltd

High Court, at Nairobi November 10, 1988

Pall J

Civil Case No 2280 of 1988

Mortgages and Charges – statutory power of sale - when courts will interfere with the mortgagee’s power of sale - whether mortgage can be restrained merely because the amount owing is in dispute - need for morgagor to show fraud or improper exercise of the power of sale.

The plaintiffs brought an application seeking an order that the defendant, its servants and agents be restrained from selling or otherwise alienating land parcel No South Kabras/ Bushu/ 570 belonging to the first plaintiff and land parcel No South Kabras/ Chesero/ 51 belonging to the 2^nd plaintiff.

The 1st plaintiff, although not stating how much he owed the defendant averred that the defendant’s failure to advance him a further loan of Shs 65,000/- as capital had led him not to be able to keep up the repayments of a previous loan for which the defendant held a charge over his land. It was however contended on behalf of the defendant that the omission to grant the 1st plaintiff a further overdraft to provide working capital for his bakery business could not prejudice the defendant’s right to enforce its earlier security given in respect of a loan already disbursed.

The 2nd plaintiff on his part contended that although the defendant had agreed to advance him Kshs 65,000 on the faith of which he signed a charge in favour of the defendant, no loan was disbursed to him. He therefore contended that the charge was void. It transpired, however, that the charge document was duly executed by the plaintiff and registered against their title. Moreover, neither of the plaintiffs seriously disputed the amounts claimed by the defendant.

Held:

1. An injunction will not issue to restrain a mortgagee from exercising his statutory powers of sale merely because the amount is in dispute.

2. The very object of legislation granting a chargee a statutory power of sale would be negated if the courts interfere with his statutory or contractual powers unless of course there is an allegation of fraud or improper exercise of the power of sale.

Injunction granted on terms.

Cases

1. Jagjivan v Shridhan (1893) 17 Bom 711

2. Ramakrishna v Official Assignee (1922) 45 Madras 774

Statutes

Registered Land Act (cap 300) sections 65(1), 74

Advocates

Mr Raballa for the Plaintiffs

Mr Wasuna for the Defendant

Doge v Kenya Canners Ltd

High Court, at Nairobi

October 28, 1988

Shah CA

Civil Case No 1832 of 1980

Equity- equitable estoppel – promissory estoppel - estoppel by conduct – estoppel acquiescence – expenditure on another’s land in expectation of an interest therein – whether it is - whether person entitled in equity - whether these principles of equitable estoppel applicable in Kenya - equitable that such a person ought to become registered proprietor.

Equity – proprietory estoppel – equitable principles vis a vis provisions of the registration of Titles Act and the Transfer of Property Act – whether sanctity of title under the Registered Land Act can be taken away by equity.

Land law – sanctity of title – registration of titles act – whether equitable principles can affect title under the Registered Land Act.

Land Control Board - consent – requirement of – when controlled transactions require consent – meaning of transaction – whether a promise is a transaction within the meaning of the act.

Employment law – termination of – proof of wrongful dismissal – burden of proof – burden on employer to prove upon a balance of probability that the employee was dismissed for good cause.

The plaintiff was an employee of the defendant. The plaintiff with consent of the defendant was permitted to occupy the subject house and land surrounding it on the understanding that legal disposal of the same would be made at a later date. The plaintiff thereafter acquiesced in and allowed the defendant to spend moneys to improve the house and farm.

The defendant terminated the plaintiff’s services, therefore requiring him to vacate the house. The defendant contended that his occupation of the house was independent of and not conterminous with his contract of services with the plaintiff.

The defendant argued that equitable doctrines apply, in his favour of, that promissory estoppel bars the plaintiff from taking away land in possession of the defendant.

It was argued on behalf of the plaintiff that an interest in land cannot be coupled with an equity, since it would be contrary to the statutes dealing with creation of interests in land in Kenya; as such interests can only be created under the Registration of Titles Act.

Held:

1. The equitable doctrines apply generally unless excluded by statute.

2. If the Indian Transfer of property Act precludes application of equity only then the court is precluded from invoking the doctrines of equity in aid of a litigant.

3. The Registration of Titles Act (Cap ) does not disentitle a party from acquiring land through equitable estoppel, neither does the Transfer of Property Act of Indias as applied in Kenya.

4. Although the interest of the plaintiff is leasehold there is nothing in the Registration of Titles Act barring the defendant from obtaining title.

5. It is a principle of justice and equity that when a man by his words or conduct has led another to believe that he may safely act on the faith of them and the other does not act on them, he will not be allowed to go back on what he has said or done when it would be unjust or inequitable for him to do so.

6. (Obiter) The harshness of the Land Control Board Act has been demonstrated time and against in our courts. In many instances the Act has been used by unscrupulous venders as an instrument of fraud and the Act has not, in many instances issued the purpose it had originally intended to.

7. If a transact is void for lack of consent of the relevant land control Board it is void and there is nothing the courts can do to help the person who entered into such transaction made void by the provisions of the act. However in this case there is no transaction as in envisaged by the Act. In this case there was a promise to do something in future when the occasion arose.

8. The alleged lack of consent does not initiate the promise the consent issue had not arisen but would in the future.

9. It is for an employer to prove upon a balance of probability that the employee was dismissed for a good cause. This burden was not discharged by the plaintiff.

Judgment for the defendant.

Cases

1. Doge v Kenya Canners Limited [1985] KLR 942

2. Century Automobiles v Hutchings Blemer Ltd [1965] EA 304

3. Nurdin Bandali v Lombank Tanganyika Limited [1963] EA 304

4. Commissioner of Lands v Hussein [1968] EA 585

5. Whitehead v Whitehead & others (1948) NZLR 1066

6. Dillwyn v Llewelyn [1861 - 73] All ER 384

7. Thomas v Thomas (1956) NZLR 785

8. Inwards v Baker [1965] 1 All ER 446; [1965] 2 QB 29; [1965] WLR212

9. Chase International Investment Corporation & Another v Laxman Keshra & others [1978] KLR 143

10. Crabb v Arun District Council [1975]3 WLR 847; [1975] 3 All ER 865; [1976] Ch 179

11. Knight v East African Airways [1975] EA 165

Texts

Spencer Bower & Turner’s Second Edition of Book, Estoppel by Representation paragraph 289

Statutes

1. Indian Transfer of Property Act 1882 section 108B

2. Government Lands Act (cap 280) section 99

3. Registration of Titles Act (cap 281)

4. Companies Act (cap 486) section 34(1)(b)

5. Land Control Act (cap 302) section 6

Advocates

Mr Muthoga for the Defendant

Mr Le Pelley for hte Plaintiff

Kamau & 2 others v Republic

High Court, at Nairobi

October 27, 1988

Dugdale J & Mbito Ag J

Criminal Appeal No 337 of 1987

(Appeals from convictions and sentences of the Senior Resident Magistrate’s Court at Thika, H R Aggrawal Esq)

Criminal Practice and Procedure – identification parades – how parade should be conducted – suspects identified in three identification parades– – each suspect called to take his place in a parade involving eight members – all parades involving the same members lined in the same order –whether parades properly conducted – whether suspects properly identified- identification of suspect in court – whether such identification valuable in the absence of other evidence.

The appellants were convicted of two counts of robbery contrary to the Penal Code (cap 63) section 296(1) and received concurrent sentences of five years’ imprisonment with four strokes of the cane and five years of post-imprisonment police supervision.

Evidence had been given that the complainants were attacked and robbed by three assailants in daylight, after which the complainants gave the descriptions of their assailants to the police, stating that one of them had squint eyes.

Three identification parades were conducted nine days later. The first parade involved the lining up of eight persons, followed by the calling of the first appellant to take his place. At this parade, the complainants allegedly identified him as the squint-eyed assailant. The two succeeding parades involved the same eight persons lined up in the same order as in the first parade and after the second and third appellants had been called to take their places, the complainants allegedly identified them as the robbers.

There were no particulars on record regarding any previously given descriptions of the second and third appellants and it was said that their names had been given to the police by the first appellant. The complainants also stated in court that they identified all the appellants as the robbers.

The appellants’ appeals were consolidated.

Held:

1. As regards the first appellant, the complainants’ description of one of the robbers to the police matched the basis on which he was identified in the first identification parade, which had been properly conducted. The case against him was proved beyond reasonable doubt.

2. The second and third identification parades were not properly conducted. The two identifying witnesses only had to observe that the parades were identical to the previous one except for the absence of the previously identified person and the presence of another person in his place who the witnesses must have considered to be another suspect. Once a witness knows who the suspect is, an identification parade is valueless.

3. The identification of the accused person in court is also valueless and if there is no other evidence to connect the accused with the offence, then the accused will be entitled to an acquittal.

4. Apart from the identification parade and the identification in court of the second and third appellants, which were valueless, there was no evidence to connect them with the offence.

5. The sentence passed on the first appellant was not manifestly excessive.

First appellant’s appeal dismissed, second and third appellants’ appeals allowed.

Cases

Githinji v Republic [1970] EA 231

Statutes

Penal Code (cap 63) section 296(1)

Stanley Munga Githunguri v Jimba Credit Corporation Ltd

High Court, at Nairobi

October, 25 1988

Mbaluto J

Civil Case No 3708 of 1988

Injunctions – interlocutory injunction – principles the courts will apply in considering applications for such injunctions.

Contract – illegality – effect of illegality – contract prohibited by statute – loan facility granted in contravention of Banking Act (cap 488) section 10 – whether loan contract illegal and enforceable – whether lender entitled to recover the money loaned.

Statutes – interpretation of statutes – Banking Act (cap 488) – object and intention of the Act – section 10 prohibiting financial institution from advancing certain kinds of loans – statute prescribing penalties for contravention but silent on the civil rights of the parties - loan granted in contravention of the section – whether such loan illegal and enforceable.

The defendant, a financial institution licensed under the Banking Act (cap 488), advanced a loan to Mukawa (Hotels) Holdings Ltd which was secured by a charge over a piece of land registered in the name of the plaintiff.

When the defendant gave notice of its intention to exercise its statutory power of sale over the charged property on account of default made in repaying the loan, the plaintiff sued it, alleging that the charge was in contravention of the Banking Act section 10(1) and therefore illegal and enforceable.

That section prohibited a financial institution from granting to any person a credit facility exceeding 5% of the total deposit liabilities of the institution or more than 100% of its paid up capital, whichever was the greater.

The plaintiff also argued that the defendant had refused to give an account of money that may have been advanced and that the parties had agreed that the correct interest rate would be 14%. He sought an injunction to restrain the defendant from exercising its statutory power of sale pending the dispute.

Held:

1. The conditions for the grant of an interlocutory injunction are, first, that an applicant must show a prima facie case with a probability of success and, secondly, that an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; thirdly, if the court is in doubt, it will decide the application on the balance of convenience.

2. The plaintiff’s claim of the alleged variation and an agreement to charge different rates of interest was not supported by evidence. In any event, the law was that a registered document could not be varied by an unregistered document.

3. There was no evidence that the plaintiff had made a request to the defendant to render an account. Moreover, this Court could not grant an injunction restraining a mortgagee from exercising his statutory power of sale solely on the ground that there was a dispute as to the amount due under the mortgage.

4. The loan advanced by the defendant to Mukawa (Hotels) Holdings Ltd contravened the Banking Act (cap 488) section 10(1) and though the Act clearly imposed a penalty for the contravention, it was silent on the civil rights of the parties where there was a contravention.

5. Where a contract on its performance is implicated with breach of statute, this does not entail that the contract be avoided. If a statute is silent on the civil rights of the parties but penalizes the making or performance of the contract, the courts consider whether the Act, on its true construction, was intended to avoid contracts of the class to which the contract belongs or whether it merely prohibited the doing of some act. The contract in this case fell under the category of contracts expressly or impliedly prohibited by statute.

6. The object of the Banking Act was the protection of the public or depositors. It would be inconsistent with the object and intention of the Act to construe it as allowing the plaintiff to retain the money, which amounted to Shs 90,000,0000 of depositor’s funds, merely because an officer of the defendant inadvertently contravened the Act.

7. The effect of the contravention of the Act was to subject the financial institution to a penalty as provided in section 28 thereof and no more. It did not vitiate or avoid the whole contract and consequently, the charge created over the plaintiff’s land was neither illegal nor unenforceable. It was a valid and enforceable contract by which both parties were

bound.

8. The plaintiff had not shown a prima facie case with a probability of success and he was therefore not entitled to an injunction.

Application dismissed.

Cases

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

2. Shah & another v Depar [1965] EA 91

3. Yango Pastoral Company and others v First Chicago Australia Limited (1978) 139 CLR 410

4. St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267; [1956] 3 All ER 683

5. Archbolds (Freightage) Ltd v S Spanglett Ltd [1961] 1 QB 374; 1 All ER 417

6. Shaw v Groom [1970] 2 QB 504; 1 All ER 702

Texts

1. Mulla’s Commentary on Indian Registration Act page 49

2. Ruoff, TBF (1959) Concise Land Registration Practice London: Sweet & Maxwell Ltd p121

3. Guest, AG et al (Eds) (1976) Chitty on Contracts London: Sweet & Maxwell 25th Edn Vol 1

Statutes

1. Banking Act (cap 488) sections 10(1), 28

2. Transfer of Property Act 1882 section 69A

3. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2

4. Civil Procedure Act (cap 21) section 3

5. Registration of Titles Act (cap 281) section 32

Advocates

Mr Hira for the Plaintiff

Mr Kigano for the Defendant

Philip v Republic

High Court at Nairobi

October 21, 1988

Mbito Ag J, Shah CA

Criminal Appeal No 240 of 1988

(Appeal from conviction and sentence of the Resident Magistrate’s Court at Thika, JBN Muturi Esq)

Criminal Law – causing death by dangerous driving – nature of the offence - whether custodial sentence proper for such offence – Traffic Act (cap 403) section 46.

Sentencing– severity of sentence – custodial sentence for offence of causing death by dangerous driving – accused aged 26 years and a first offender - whether such sentence proper – Traffic Act (cap 403) section 46.

The appellant was charged in a magistrate’s court with the offences of causing death by dangerous driving, failing to report an accident, using an unlicensed motor vehicle and failing to renew his driving license contrary to the Traffic Act (cap 403) sections 46, 73, 15 and 30(4) respectively. He was convicted on all counts and given a custodial sentence.

The appellant was aged 26 years and he was a first offender. He appealed to the High Court against his conviction and sentence on the first count on the ground that he had not pleaded guilty to it.

Held:

1. From the record, it was clear that the trial magistrate had followed the correct procedure for recording a plea of guilty in that he found the appellant guilty after recording all the facts stated and after the appellant accepted the correctness of those facts.

2. The offence of causing death by dangerous driving is not an ordinary type of crime; people who commit it do not have propensity for it and it is not committed for gain, revenge or lust or to emulate other criminals.

3. The interests of justice and the public would be properly served if the appellant’s custodial sentence was reduced to the extent of whatever period he had served but he was to be disqualified from holding or obtaining a driver’s licence for three years.

Appeal against conviction dismissed, appeal against sentence allowed.

Cases

Orweryo Missiani v R [1979] KLR 285

Statutes

Traffic Act (cap 403) sections 15, 30(4), 46, 73

Advocates

The Appellant in Person

Mr Mugo for the Respondent