Mwithalii v M’Itobi

Court of Appeal, at Nyeri

May 19, 1988

Platt, Gachuhi & Apaloo JJA

Civil Appeal No 40 of 1986

(Appeal from an Order/Judgment of the High Court at Meru, O’Kubasu J)

Evidence – hearsay evidence – inadmissibility of hearsay evidence–– civil court relying on the evidence of an expert recorded in a criminal trial – expert not called as witness in civil court–– whether expert’s evidence properly admitted – Evidence Act (cap 80) sections 34, 84

The police, suspecting the appellant to be the author and publisher of certain posters which were apparently defamatory of the respondent, forwarded materials bearing the appellant’s handwriting to a handwriting expert for examination.

After the document examiner’s report, the appellant was charged with “threatening a breach of the peace by writing and distributing defamatory letters”. The handwriting expert gave evidence at the trial. The appellant was convicted but this conviction was later quashed on appeal to the High Court on a ground not related to the authorship of the allegedly defamatory document.

The respondent brought a civil action against the appellant claiming damages for defamation in which the evidence of the proceedings in the criminal trial were produced. The judge relied on the opinion of the handwriting expert given in the criminal trial in finding that the appellant had written the posters and in awarding damages to the respondent. The appellant appealed.

Held:

1. The opinion evidence of the document examiner who was not called as a witness before the Court as to the authorship of the disputed documents was hearsay and was inadmissible in evidence on that ground.

2. That being the case, there was no legal evidence before the Court on which it could properly hold that the appellant had written and published the allegedly defamatory documents.

3. There were no facts given in evidence on which it could be held that the factual conditions required under the Evidence Act (cap 80) section 34 before the evidence of the document examiner could be admitted had been fulfilled. Section 84 of the Act could also not assist the respondent as it did not modify the rule regarding hearsay evidence.

4. As proof by legally admissible evidence that the offending documents were written and published by the appellant was essential to the success of the action, and as there was no such evidence, the judgment condemning the appellant to pay damages could not stand.

Appeal allowed, case remitted to the High Court for re-hearing.

Cases

1. Khemaney v Lachabai Murlidhar [1960] EA 1

2. Shah v Bharmal v Khumari [1961] EA 679

Statutes

Evidence Act (cap 80) sections 34, 84

Munyororo v Murage

Court of Appeal, at Nyeri

March 21, 1988

Nyarangi, Platt & Gachuhi JJA

Civil Appeal No 149 of 1986

(Appeal from the judgment of the High Court at Nyeri, O’Kubasu J)

Land law – Land Control Board’s consent – Board giving consent to transaction over three months after date of transaction–– consent given over three months after it was applied for – whether such consent valid - Land Control Act (cap 302)–sections 6(2), 9(2).

The parties entered into an agreement for the sale and subdivision of agricultural land on May 5, 1980. An application for the consent of the Land Control Board to the transaction was made on May 11, 1980.

The appellant could not attend at the Land Control Board because he had been arrested and detained. The Land Control Board nevertheless purported to give its consent on September 9, 1980.

The High Court (O’Kubasu J) observed that the period for the granting of the consent had to be extended because the appellant had not been able to appear before the Board. It was held that the consent was valid and an order was made for the specific performance of the contract for sale of the suit land.

The appellant appealed.

Held:

1. Under the provisions of the Land Control Act (cap 302) as then in force, the application for the consent of the Land Control Board had to be made within three months of the agreement, and then having been made, the consent either had to be granted or refused within three months.

2. If no action was taken within three months, it would be deemed that the consent had been refused.

3. The consent to the sub-division and sale having not been granted in time, the consent was void.

4. The provision of section 8 of the Land Control Act that the decision of the Land Control Board shall be final and not to be questioned by any court presupposed that the provisions of the Act have been carried out.

The Board had not complied with the Act in this case.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Land Control Act (cap 302) sections 6(2), 6(2)(a), 7, 8, 9(2)

2. Limitation of Actions Act (cap 22) generally

Advocates

Mr. Njiru for the Appellant.

Mr. Mahan for the Respondent.