In Re Al-Moody (A Debtor)

High Court, at Mombasa December 15, 1989

Githinji J

Bankruptcy Cause No 4 of 1989

Bankruptcy — presentation of a petition by debtor to evade committal order — not an abuse of court process — debtor entitled to use machinery of Bankruptcy as a shield.

This was debtor’s petition which pleaded that he was unable to pay his debts and requested that a receiving order in respect of his estate be made and that he be judged bankrupt.

Held:

1. The mere paper presentation of a petition by the debtor to evade a committal order is not an abuse of the process of the court.

2. A debtor is entitled to use the machinery of the Bankruptcy Act for his own purpose so as to shield himself from further liability to committal or other harassment.

3. There is a limit to a debtor’s immunity and if it appears as a fact that a debtor is on the habit of filing bankruptcy petitions to get rid of his liabilities so as to defraud the creditor, he ought not be protected by the Bankruptcy Act.

4. If a petition is proper and is not an abuse of the process of the court, it is imperative that the court should make a receiving order.

Petition Dismissed.

Cases

1. Re Betts Ex Parte Official Receiver [1901] 2 KB 39

2. Re a Debtor (No 17 of 1966) [1967] 1 All ER 668

3. Re Bond (1888) 21 QBD 17

Texts

Hailsham, Lord et al (Eds) (1973) Halsbury’s Laws of England London:

Butterworths 4th Edition Vol III p194 para 324

Statutes

1. Bankruptcy Act (cap 53) sections 81(1), 16, 16(1), 102

2. Bankruptcy Act 1869 [UK] section 8

Advocates

Mr Ogola for the Petitioner.

Maathai v Kenya Times Media Trust Ltd

High Court, at Nairobi

December 11, 1989

Dugdale J

Civil Case No 5403 of 1989

Locus Standi – capacity to sue–– plaintiff seeking to prevent defendant from carrying out construction of a high-rise building on a park–– plaintiff alleging breaches of government and local government laws–– plaintiff suing in her own capacity–– whether plaintiff has locus standi to file the suit.

Civil Practice and Procedure – representative suit–– suits on behalf of the public – only Attorney General entitled to bring such suits.

Civil Practice and Procedure – pleadings – striking out of pleadings –application to strike out plaint for not disclosing a cause of action –whether a party who has not been served with plaint can make such application – Civil Procedure Rules order VI rule 13

The plaintiff/applicant, who described herself as the Co-ordinator of the Green Belt Movement, filed an application seeking a temporary injunction to restrain the defendant from proceeding with the construction of a proposed multi-storey building on Uhuru Park in Nairobi until the determination of the substantive suit filed by her.

The defendant/respondent raised a preliminary objection and sought to have the plaint struck out on the grounds that it disclosed no cause of action and that the applicant had no locus standi for file the suit or the application.

The applicant raised objections to the hearing of the respondent’s preliminary objection. Her advocate argued that the respondent’s application was intended to prevent a fair hearing of the issues raised and was contrary to public policy, that the suit needed not disclose a cause of action since it was for seeking certain declarations and finally, that the respondent was acting prematurely since the plaint had not been served.

Held:

1. There was no merit in the three grounds of objection filed by the applicant against the preliminary objection raised by the respondent.

2. The plaint disclosed no cause of action against the defendant/respondent.

3. Only the Attorney-General can sue on behalf of the public. In any event, it was clear that the plaintiff was not bringing an action on behalf of anyone else.

4. The plaint did not allege that there was an actual or anticipated breach by the defendant of any rights, public or private, in relation to the plaintiff or even that the plaintiff had a right of action against the defendant.

5. The plaintiff’s strong views that it would have been preferable if the building never took place in the interest of many people who had not been directly consulted were personal and immaterial.

6. The plaintiff had no right of action against the defendant and therefore she had no locus standi.

Respondent’s preliminary objection allowed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Act (cap 21)

2. Civil Procedure Rules (cap 21 Sub Leg) order IV rules 1, 3(1), (3); order VI rules 1, 13, 13(1), (2); order VIA rule 1; order XVIII; order XXIX; order XXXV rule 1

3. Development and Use of Land (Planning) Regulation 1961 (cap 303 Sub Leg)

4. Constitution of Kenya

Advocates

O Ombaka, G Mirugi & M Nyaoga for the Plaintiff/Applicant

G Oraro for the Defendant/Respondent

Kamenju Muraya v Republic

Court of Appeal, at Nakuru

December 4, 1989

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 11 of 1989

Criminal law – stealing from a locked motor vehicle by opening by means of a key or other instrument – whether breaking window glass in order to open the vehicle amounts to opening by key or other instrument – Penal Code )cap 63) section 279 (g) - whether charge proper - whether lesser offence of theft disclosed.

The appellant was charged and convicted of the offence of stealing from a locked motor vehicle contrary to section 179 (g) of the Penal Code (cap 63).

The particulars of the offence however did not allege that in order to commit the offence the appellant opened the locked motor vehicle by means of a key or other instrument.

Instead they alleged that in order to commit the said offence he opened the motor vehicle in question by breaking the window glass.

The entire proceedings in the trial court concerned themselves with the appellant having broken into the motor vehicle in issue.

In convicting the accused the trial magistrate observed that he was convinced beyond any reasonable doubt that the accused broke into the vehicle of the complainant.

The High Court, on appeal, upheld the trial court’s conviction.

Held:

1. To open a locked motor vehicle by means of a key or other instrument requires the unlocking of the lock of such motor vehicle. Breaking any part of such motor vehicle in order to open it is not the same thing as opening it by means of a key or other instrument.

2. Breaking into the motor vehicle mentioned was not an ingredient of the offence with which the appellant was charged.

3. The aggravating circumstances of the theft under section 279 (g) for which the appellant was charged was the opening of the locked motor vehicle by means of a key or other instrument in order to commit that offence. This circumstance was neither charged nor proved against the appellant in the court of the first instance and his conviction could not be sustained.

4. Theft is a common factor to teh offences defined in sections 279(g) and 275 of the Penal Code. Section 279(g) however has the additional aggravating circumstances contained therein. The lesser offence of theft under section 275 had been established in this case but the aggravating circumstances necessary for an offence under section 279(g) had not been established.

Appeal allowed, appellant’s conviction substituted with a conviction for theft under the Penal Code section 275.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 275. 279(g)

2. Criminal Procedure Code (cap 75) sections 179(1), 361(4)

Masulal Maganlal Rawal v Maneklal Maganlal Rawal

High Court, at Mombasa November 22, 1989

Bosire J

Civil Case No 128 of 1962

Limitation of Actions – estoppel from pleading limitation instances – point in limine – nature of – object of limitation enactment – application to add legal representative filed out of time – powers of court in dealing with such application.

This was an application by the defendant for orders, inter alia, that the suit had, by the time the order by consent was made, abated or in the alternative the plaintiff was not the proper legal representative of the original plaintiff and therefore not entitled to continue with the suit. It was contended on behalf of the plaintiff that the defendant having earlier consented to substitution of the plaintiff he thereby waived his right to rely on limitation under O XXIII of the Civil Procedure Rules by dint of the provisions of section 39 (1)(b) of the Limitation of Actions Act.

Held:

1. It is a trite law that a point in limine must be one which when accepted avoids the necessity of the hearing of a matter pending determination.

2. By dint of O XXIII rules 3(2) Civil Procedure Act, at the expiry of 12 months after the death of a sole plaintiff in a suit, a vested right accrues to the defendant to rely on the defence of limitation if no application is brought to substitute the plaintiff.

3. The object of any limitation enactment is to prevent a plaintiff from prosecuting state claims on the one hand and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time.

4. Where an application to add legal representatives is filed after the period of limitation has expired, the court may either set aside the abatement by getting an application filed for the purpose and the substitute the legal representative, or in exceptional cases, even treat the application as one to set aside the abatement and pass necessary orders thereon.

5. Where such application is allowed without objection, the time will be deemed to have been extended and the legal representatives to have been properly brought on the record.

Application disallowed.

Cases

Mehta v Shah [1965] EA 321

Texts

Chitaley & Rao, AIR Commentaries on the Code of Civil Procedure 6^th Edn Vol III p 3424

Statutes

1. Civil Procedure Act (cap 21) section 3A

2. Civil Procedure Rules (cap 21 Sub Leg) order XXIII rules 3(1), (2), (5); 8

3. Limitation of Actions Act (cap 22) section 39(1)(b)

4. Civil Procedure Code [India]

Advocates

Mr S Gautama, Mr KM Pandya & Mr B Patel for the Plaintiff.

Mr Nagpal & Mr NM Doshi for the Defendant.

Onkoba v Republic

High Court, at Nairobi

November 19, 1989

Porter & Mbaluto JJ

Criminal Appeal No 325 of 1989

(Appeal from original conviction and sentence of the Principal Magistrate’s Court at Nakuru (ICC Wambilyangah Esq) in Criminal Case No. 1649 of 1986)

Criminal Practice and Procedure – plea– plea of guilty – accused pleading guilty to a capital offence – steps the court should take in such a plea.

Criminal Practice and Procedure – plea – plea taking – charge and all its essential ingredients to be explained to the accused.

Constitutional Law – rights of an accused person – person who has been charged with a criminal offence to be informed of the nature of the offence – right to interpretation – accused entitled to assistance of an interpreter – Constitution section 72.

The appellant, who was charged with robbery with violence, was convicted and sentenced to death on his own plea of guilty.

The appellant had initially pleaded not guilty to the charge but on a subsequent appearance, he asked the trial court to read to him the charges afresh and he pleaded guilty. The trial magistrate cautioned the accused that the offence carried mandatory death penalty and asked for the facts of the case to the read to him but he maintained his plea. Consequently the trial magistrate sentenced him to death.

On appeal, the appellant claimed that he did not know what was going on in court and that he did not understand the language in which the proceedings were conducted.

The court record however showed that the trial magistrate had on three occasions pointed out to the appellant that the offence carried a mandatory sentence of death. On the last occasion, he reiterated his plea of guilty and added that he was prepared to be sentenced to death.

Held:

1. It is very desirable that a trial judge on being offered a plea which he construes as a plea of guilty to a capital offence, should not only satisfy himself that the plea is an unequivocal plea but should satisfy himself and record that the accused understands the elements which constitute the offence and understands that the penalty is death.

2. When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language but if that is not possible then in a language which he can speak and understand.

3. A person who has been charged with a criminal offence shall be informed as soon as reasonably practicable in a language which he understands the nature of the offence charged. This provision relates to what shall be done by the police in the police station.

4. When conducting an appeal the court is bound by the record before it. It must appear from the record that tthe appellant understood what was being said in the court below.

5. The appellant’s plea was unequivocal and the trial magistrate had acted with great caution in accepting it. There was no basis for interfering with his decision.

Appeal dismissed.

Cases

1. Wanjiru v Republic [1975] EA 5

2. Lusiti v Republic [1977] KLR 143

3. Adan v Republic [1973] EA 445

4. Olel v Republic [1989] KLR 444

5. R v Ibrahim bin Saleh (1921 – 28) 1 TLR 69

6.Mangwera s/o Msakazi v Republic (1951) EACA 150

7. Chacha s/o Wamburu v R (1953) 20 EACA 339

8. Tomasi Mufumu v R (1950) EA 625

Texts

Rossen and Stratton, Digest of East African Criminal Case Law.

Statutes

1. Penal Code (cap 63) section 296(2)

2. Criminal Procedure Code (cap 75) sections 207 (1),(2); 382

3. Constitution of Kenya section 77(2)