Lesarau v Republic

Court of Appeal, at Mombasa

July 26, 1988

Gachuhi, Masime JJA & Kwach Ag JA

Criminal Appeal No 78 of 1988

(Appeal from a Judgment of the High Court at Mombasa, Apaloo J)

Evidence – identification evidence–– identification by single witness –how the court should assess such evidence - complainant claiming to identify accused person as the offender–– complainant claiming to have known accused person for a long time but could not remember his name– accused person convicted – whether accused properly identified.

The appellant was convicted and sentenced in a magistrate’s court for the offence of stock theft. His conviction was based solely on the evidence of the complainant who claimed that he identified him as one of the persons who had attacked him and driven away his employer’s cattle.

Although the complainant claimed to have known the appellant for five years, he told the court that he did not remember his name.

Both the trial court and the High Court on first appeal rejected the appellant’s alibi and observed that he had been properly identified.

Held:

1. In case such as this one which depended solely on identification by a single witness, there was an obligation on the part of the trial court to assess and analyse the evidence of identification with meticulous care.

2. Although the trial magistrate had warned himself of the danger of convicting on the testimony of a single witness and explained why he thought the appellant’s identification by the complainant was reliable, he failed to consider the complainant’s failure to identify the appellant by name.

3. This issue was of crucial importance and had the lower courts given it due allowance, they may well have reached a different conclusion.

4. Where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name.

The identification evidence in this case was of very poor quality thus making the danger of mistaken identity even greater. That evidence could not be accepted as true and free from the possibility of error.

5. The appellant’s alibi defence was not challenged and there was no basis on which the lower courts rejected that defence.

Appeal allowed.

Cases

1. Abdallah bin Wendo & another v R (1953) 20 EACA 166

2. R v Turnbull [1976] 3 All ER 549; 73 Criml App R 132; [1977] QB 224

Statutes

Penal Code (cap 63) sections 278, 296(2)

Advocates

Mr Sereje for the Appellant

Yasini v Kenya Cargo Handling Services Limited

Court of Appeal, at Mombasa

March 17, 1988

Nyarangi, Gachuhi & Apaloo JJA

Civil Appeal No 86 of 1986

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

Employment law – injury to employee in course of employment – dock worker’s fingers injured after being caught by the slings of a hoisting crane – workers supervised by headman at time of accident – whether employer liable in negligence – whether worker liable for contributory negligence.

The appellant, who was employed as a dock-worker by the respondent, had his terminal phalanges of the left middle and ring fingers amputated following an accident in the course of his work. The appellant had been unloading cargo from a ship when, while attempting to stop some stacks from falling, the cargo hook began to hoist so that its slings tightened around his fingers resulting in the injuries. The work was being carried out under the supervision of a headman.

In the appellant’s suit for damages against the respondent and a coemployee, the respondent denied liability, asserting that there was no negligence on its part. It was argued that the appellant was the author of his misfortune and that there would have been no danger had he allowed the stacks to fall.

The High Court dismissed the suit, observing that the cause of the accident was not the fault of the defendants.

On appeal, the issue for decision was whether there was negligence on the part of the respondent or whether the appellant was solely negligent or whether there was contributory negligence on his part. It was argued, among other things, that even if the headman had been negligent, his negligence would not bind the employer.

Held:

1. In the circumstances, the appellant was not acting negligently in pushing away the bags which were being hoisted.

2. On the evidence adduced, the mode of stacking the bags close to each other may not have been proper and it had created danger to the workers.

3. The headman or serang was negligent in supervising the stacking of bags very close to each other failing to allow sufficient space for the hoisting crane to swing.

4. In the absence of clear instructions as to how the employees were to carry out their duties, the employer was liable for the injuries to his employee.

5. There is no rule of law that exempts an employer from liability for an injury caused to an employee by the act of another employee since the doctrine of common employment was abolished. The appellant was vicariously liable for the negligence of the headman.

6. There was no evidence to show that the appellant had contributed to his injury.

7. The trial judge had failed to award the appellant damages for loss of future earnings beyond the day of the judgment. Since he was aged 48 years, he was, in addition to the general damages award of Shs 60,000, entitled to damages for loss of future earnings calculated until the retirement age of 55 years.

Appeal allowed.

Cases

No cases referred to.

Statutes

No statutes referred.

Nandwa v Kenya Kazi Ltd

Court of Appeal, at Mombasa

March 10, 1988

Platt, Gachuhi JJA & Masime Ag JA

Civil Appeal No 91 of 1987

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

Negligence – proof of negligence – mechanical defect in vehicle resulting in accident – prima facie inference of negligence established against owner of vehicle – whether owner under duty to discharge such inference.

Master and Servant – liability of employer for the safety of employee – mechanical defect in employer’s vehicle resulting in accident – employee injured in accident – whether employer liable in negligence to employee.

Evidence – burden of proof - plaintiff suing defendant in negligence - party on whom onus of proof lies – plaintiff’s evidence establishing prima facie inference of negligence on the part of the defendant – whether defendant may be required to discharge such inference – effect of failing to discharge such inference.

The appellant was involved in a motor vehicle accident when he was driving his employer’s vehicle in the course of his employment. He sued his employer, the respondent company, claiming that it was negligent in failing to maintain the vehicle before allowing him to drive it.

The appellant gave evidence that on the material date, he had taken over the motor vehicle from another driver and he found that the gears had been interfered with. That other driver was unknown to the respondent.

During his journey, the appellant remarked to a fellow employee that the vehicle’s steering was not good, and that employee’s testimony supported the appellant in that respect. Some minutes later, the steering loosened and the brakes failed. The vehicle went off the road and landed in a ditch, causing the appellant personal injuries.

The defence stated in its evidence that the respondent’s vehicles were regularly inspected but the vehicle in this case was not inspected after the accident and no report of the accident was made to the police.

After trial, the High Court found that the respondent was not liable for the accident and dismissed the appellant’s claim. The appellant appealed.

Held:

1. There was no basis for the finding that the appellant knew of the defects in the vehicle as he had only taken charge of it after it had previously been driven by another person who was not called as a witness.

2. The appellant was not negligent and in the circumstances, he had acted reasonably in continuing to drive the vehicle after he became aware of the defects.

3. In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant.

However, if in the course of trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant’s evidence provides some answer adequate to displace that inference.

4. In this case, a prima facie inference had been made that the accident was due to the negligence of the defendant in failing to keep the motor vehicle in a state of good mechanical repair. The defence did not displace this inference.

5. The trial judge had misdirected himself on the evidence and placed a heavy burden on the appellant to prove negligence.

Cases

1. Hutchins v Maunder (1920) 37 TLR 72

2. Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392

3. Henderson v Henry E Jenkins & Sons [1970] AC 282; [1969] 3 All ER 756

Statutes

Traffic Act (cap 403) sections 55, 58

Advocates

JV Juma for the Appellant

D Oyatsi for the Respondent

Sheikh t/a Hasa Hauliers v Highway Carriers Ltd

Court of Appeal, at Mombasa

March 10, 1988

Gachuhi, Apaloo JJA & Masime Ag JA

Civil Appeal No 46 of 1986

(Appeal from a Ruling and Order of the High Court at Mombasa, Aragon J)

Civil Practice and Procedure – judgment - judgment in default of defence – application for setting aside such judgment - matters the court should consider in such application–– Civil Procedure Rules order IXA rule 10.

Civil Practice and Procedure – ruling - judge introducing extraneous matters in his ruling – judge making derogatory remarks about the conduct of the applicant’s advocate’s firm in previous cases– whether ruling proper.

The appellant appealed against the decision of the High Court in which Aragon J, in the exercise of his discretion, dismissed an application to file a defence out of time and also refused an application for leave to appeal.

In his ruling, the judge remarked about his own experiences with the appellant’s firm of advocates in other occasions and its “dilatory tactics”, “low level of efficiency and devotion of duty towards [its] clients”. He also made observations on the possibility of a registered letter posted at Nairobi reaching Mombasa in less than five days, a matter on which no evidence had been adduced.

On his appeal, the appellant argued, among other things, that the judge had erred in considering extraneous matters and in acting on his hatred of the firm of lawyers to the appellant’s prejudice.

Held:

(Apaloo JA dissenting)

1. In order to succeed, the application for setting aside the ex parte judgment had to show that the entry of judgment was wrong in that it was entered while a defence was validly on the file and the judge had not considered it.

2. The power of the court in dealing with an application to set aside ex parte judgment under order IXA rule 10 is discretionary and the main concern of the court is to do justice to the parties.

3. In this case, the judge had introduced extraneous matters into his ruling and made derogatory remarks as to his past knowledge of the firm of advocates representing the appellant and its inefficiency in other matters.

He must have been influenced by those remarks in delivering his ruling.

4. Had the judge not been carried away by his emotional conduct and had he considered the interest of the appellant independently from the conduct of his advocates and considering the authorities on the subject, he could have come to a different conclusion.

Appeal allowed.

Cases

1. Maina v Mugiria (1982-88) 1 KAR 171; [1983] KLR 78

2. Evans v Bartlam [1937] AC 437; [1937] 2 All ER 654; 53 TLR 689;

106 LJKB 568

3. Patel v EA Cargo Handling Services Ltd [1974] EA 75

4. Shah v Mbogo & another [1967] EA 116

5. Kimani v McConnell [1966] EA 547

6. Shah v Allu (1947) 14 EACA 45

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XLII rule 1(1)(a); order

IXA rule 10

2. Judicature Act (cap 8) section 3

Advocates

Mr Maosa for the Appellant.

Mr Inamdar for the Respondent.

Marco Tool & Explosives Ltd v Mamujee Brothers Ltd

Court of Appeal, at Mombasa

January 29, 1988

Platt, Gachuhi JJA & Masime Ag JA

Civil Appeal No 107 of 1986

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

Costs – security for past costs - power of the Court of Appeal to order security for costs in lower court – matters the Court will consider in exercising that power – whether proper to order security for past costs where security for costs of the appeal has been ordered - Court of Appeal Rules rule 104.

The applicant was unsuccessful in his attempt to execute a decree which he had obtained in the High Court against the responndent. The respondent appealed against the High Court’s decision to the Court of Appeal but the appeal could not proceed to hearing because he had failed to furnish security for its costs.

The applicant brought an application under the Court of Appeal Rules rule 104 for an order that further security for past costs of the High Court be given as well as the costs of the appeal because the respondent did not seem to have any property from which the costs could be recovered.

After the application was dismissed by a single appellate judge, the applicant referred it to a full bench of the Court.

Held:

1. The court has an unfettered though judicial discretion to order or refuse security and much will depend upon the circumstances of each case though the final result must be reasonable and modest.

2. While past costs include costs in the lower court, such costs would only be secured sparingly. Moreover, where costs of appeal have been provided for, further security would only be ordered in exceptional circumstances.

3. The automatic provision of costs in the Court of Appeal Rules rule 104(1) gave rise to the inference that only a reasonable amount would be ordered.

4. The onus was on the applicant to prove the respondent’s inability to pay the costs or his lack of good faith in order to show that an order for security would be reasonable. To merely allege that the respondent company had no registered office was insufficient.

5. The appellate judge could reasonably have concluded that it was inappropriate to give directions as to security. It could also not be said that the judge was wrong in relying on the mandatory security ordered for the costs of the appeal.

Reference dismissed.

Cases

1. Hall v Snowdon Hubbard & Co [1899] 1 QB 594

2. Kaura v Morgan [1961] EA 462

3. Noormohamed Abdulla v Patel [1962] EA 447

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 104; 104(1), (3)

Advocates

Mr Kamani for the Appellant

Mr Obhrai for the Respondent

Lydia Wanjiru Mwangi v Rajnikant Joshi

Cour of Appeal, at Mombasa

January 28, 1988

Platt, Gachuhi JJA & Masime Ag JA

Civil Application No NAI 143 of 1987

(Application for extension of time to file an appeal from a Ruling of the High Court at Mombasa, Bhandari J)

Extension of time – to file record of appeal out of time – approach the courts will take in such applications - seven days’ delay in filing appeal caused by mistake of applicant’s advocate – whether delay inordinate –whether applicant entitled to extension of time.

The applicant’s advocate had requested for copies of the proceedings and the ruling which was to be the subject of the intended appeal but he had failed to send a copy of that request to the respondent. In the result, there was a delay of seven days in filing the appeal.

The appellant’s advocate admitted his responsibility for the delay and applied for extension of time arguing that the delay was not inordinate.

Held:

1. In applications for leave to appeal out of time, the Court is guided by the approach that in cases where the delay is very short and there is an acceptable excuse for the delay, as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal would arise.

2. If the appeal has absolutely no chance of success that would of course be a factor to be borne in mind. In this case, however, there was an arguable appeal and on the whole, there was enough material upon which the Court could make a just order as required by rule 4 of the Court of Appeal Rules.

3. The Court would accept the appellant’s advocate’s apology for his mistake and grant his client an extension of time.

Application allowed.

Cases

1. Gatti v Shoosmith [1939] 3 All ER 916; [1939] Ch 841; (1939) 161 LT 208; (1939) 55 TLR 1023

2. Palata Investments Ltd v Burt & Seinfield Ltd [1985] 1 WLR 942; 2 All

ER 517

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 80, 81

Advocates

Mr Gikandi for the Applicant

Mr Khanna for the Respondent

Mediterranean Shipping Co SA v Wheat Board of Kenya the MV Pantera

Court of Appeal, at Mombasa

January, 1988

Platt, Gachuhi JJA & Masime Ag JA

Civil Appeal No 49 of 1986

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

Admiralty – demurrage – liability for demurrage - contract of carriage requiring consignee to receive goods “as fast as the vessel can deliver” – duty of consignee to receive goods within a reasonable time – factors to be taken into consideration in construing what is meant by a reasonable time – how consignee’s duty discharged – whether consignee liable for demurrage incurred owing to delays in berthing at port and the availing of means of transportation by third parties – whether delay caused by circumstances beyond the consignee’s control.

On January 9, 1978, the appellant’s vessel, The MV Pantera, arrived at the port of Mombasa with a consignment of gift wheat which was to be received by the respondent on behalf of the Government of Kenya.

A clause in the contract of carriage provided in part that the merchant or his consignee was to take delivery of the goods and to receive them “as fast as the vessel can deliver..”.

Various attempts to allocate a berth for the unloading of the cargo were unsuccessful and on14th January, a decision was made by the Kenya Ports Authority to allocate an available berth to a different vessel which had docked earlier.

The respondent had made previous arrangements with Kenya Railways Corporation for the transportation of the wheat but at a meeting in which the Kenya Ports Authority was considering availing a berth for The MV Pantera, a representative of the railway body informed it that the railway wagons would not be available. It was then decided to leave the vessel at anchorage and to review the situation on the 16th January. The respondent then made arrangements for road transport and the vessel was finally berthed on 17th January, on which date the unloading commenced.

The appellant sued the respondent claiming demurrage for the 16th of January, during which it was said that the respondent had failed to receive the wheat. The respondent stated in its defence that if there had been any delay, that would have been due to the non-availability of railway wagons, a factor over which it had no control. The respondent averred further that it had taken immediate steps to provide alternative means of transport when the non-availability of the railway wagons was brought to its notice.

The trial judge found in favour of the respondent and dismissed the appellant’s claim. The appellant appealed.

Held:

1. Where a contract of carriage provides that the consignee shall take delivery of the goods as fast as the vessel can deliver, the consignee’s duty is to take delivery within a reasonable time. Reasonable time is to be judged from all the existing circumstances from the arrival of the ship to the completion of the unloading.

2. The consignee fulfils his obligation, however protracted the delay may be, so long as such delay is attributable to causes beyond his control and he has acted neither negligently nor unreasonably. The factors to consider in the ascertainment of reasonable time are the natural conditions of the port, the custom of the port, the actual state of affairs existing at the port and the conduct of the consignee.

3. The actions of the Kenya Ports Authority were matters which formed part of the customs at the Port and were not the responsibility of the appellant. Even if the respondent’s duty to receive the goods arose as soon as the ship was being considered for berthing, the respondent had no control over the decision of the Kenya Ports Authority to delay the vessel’s berthing.

4. As it was a requirement of the custom at the Port that wheat consignments should be discharged directly onto wagons or lorries, the respondent’s duty to receive the wheat within a reasonable time arose only after the ship had berthed. The respondent discharged this duty by providing transportation lorries when the vessel was finally berthed.

Appeal dismissed.

Cases

1.Hick v Raymond v Reid [1893] AC 22; 68 LT 175; 41 WR 384; 37 Sol Jo 145; (1891-1894) All ER 491

2. Lyle Shipping Co v Cardiff Corporation [1900] 2 QB 638

3. Hulthen v Stewart & Co Ltd [1903] AC 389

4. Good & Co v Isaacs [1892] 2 QB 555

5. Tharsis Sulphur and Copper Company Ltd v Morel Brothers & Co [1891] 2 QB 647

6. The Arne 1904 P 154

Texts

Hailsham, Lord et al (Eds) (1983) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XLIII paras 653, 660, 670, 671, 675

Statutes

No statutes referred.

Advocates

S Gautama & JM Muhuni for the Appellant

IT Inamdar for the Respondent