Ruben & 9 others v Nderito & another

Court of Appeal at Nairobi

November 9, 1989

Nyarangi, Gicheru & Kwach JJ A

Civil Application No NAI 182 of 1989

Civil Practice and Procedure – stay of execution - by Court of Appeal - Court of Appeal Rules rule 5(2)(b) - principles by which the court is guided - nature of the Court’s jurisdiction under that rule - application for stay not to be treated as an appeal from the decision of the High Court.

The applicants who unsuccessfully sought an injunction against the respondents in the High Court, filed the present application in the Court of Appeal.

They sought a stay of the order dismissing their application and to restrain the respondents from turning their plot, which was located in the same neighbourhood as them, from residential to commercial use, pending the hearing and determination of their intended appeal.

The applicant’s contention was that developments to plots in the neighbourhood of Rossyln Estate were restricted to residential use only.

They relied on a restrictive covenant which formed part of conditions of purchase of property in the area.

The respondent however contended that the covenant was outdated and was intended to create and preserve a European colony or ghetto.

Held:

1. In dealing with applications under rule 5(2)(b) of the Court of Appeal Rules the Court of Appeal exercises original jurisdiction.

2. Once the applicant is properly before the court, the court has jurisdiction to grant an injunction or make an order for a stay on such terms as the court may think just.

3. This exercise does not constitute an appeal from the trial judge’s discretion to the Court of Appeal.

4. In such an application, the applicant must show that the intended appeal is not frivolous, or, he must satisfy the court that he has an arguable appeal. Secondly, it must be shown that the appeal, if successful, would be rendered nugatory.

5. It had been shown that the appeal raised a serious question for submission to the Court of Appeal and there was a very real possibility of the appeal beign rendered nugatory if the reliefes sought by the plaintiffs are not granted.

6. The Court would not require the applicants to give an undertaking in damages. They were exercising their undoubted right of appeal and that right was not to be fettered by the imposition of such a draconian measure.

Application allowed.

Cases

Githunguri v Jimba Credit Corporation Ltd [1988] KLR 83

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 5(2)(b); 74

2. Civil Procedure Rules (cap 21 Sub Leg)

Advocates

Mr Ibrahim for the Defendants.

Peter Mburu Kangethe v Republic

Court of Appeal, at Nairobi

 November 3, 1989

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 74 of 1989

(Appeal from a conviction and sentence of the High Court at Nairobi, Osiemo J, dated 5th September 1988 in Criminal Case No 29 of 1988)

Criminal Practice and Procedure – plea - accused persons pleading guilty to a charge while facts do not support the offence charged – whether subsequent conviction proper.

Criminal Practice and Procedure – statement of facts – prosecution tendering post-mortem report as part of statement of facts of the offence without reading contents to the accused– whether proper.

The accused was initially charged with the offence of murder which he denied and was remanded in custody. He however later on through his counsel informed the court that he intended to plead guiltly to a lesser charge of manslaughter.

Although the court record itself did not contain the new charge the court recorded that the charge had been read and explained to the accused which he admitted.

The statements of facts however merely stated that the accused who had been previously quarrelling with his wife later on in the night asked for help to take his wife to hospital as she had been injured.

The court however observed that neither stated that the accused fought with the deceased nor that the accused who had inflicted the injuries.

The post mortem report was produced as part of the statement of facts read to the accused.

Held:

1. The statement of facts as narrated to the court and admitted by the appellant to be correct, did not disclose and could not support a conviction for the offence of manslaughter.

2. As the facts did not disclose the offence charged the judge should have declined to enter a conviction for manslaughter.

3. The practice of putting in the post mortem report as part of the statement of facts narrated to the court by the prosecutor is to be discouraged.

4. The prosecution should obtain therefrom all the relevant facts and incorporate them in the statement of facts.

Appeal allowed.

Cases

Wachira, Daniel Karanja v Republic Criminal Appeal No 181 of 1988

Statutes

Penal Code (cap 63) section 204

Alitalia Airlines v Shaka Zulu Assegai

Court of Appeal at Nairobi

September 26, 1989

Nyarangi, Masime & Kwach JJA

Civil Appeal No 29 of 1989

(Appeal from the judgment/ decree of the High Court at Nairobi, Amin J, in HCCC No 2630 of 1986, dated 17th October 1988)

Carriage by Air – loss of passenger’s luggage by airline’– passenger travelling from Libya Kenya through Italy – law applicable to the contract of carriage – whether parties free to incorporate foreign law into the contract – Judicature Act (cap 8) section 3(3)–– Warsaw Convention of 1929

Carriage by Air - liability of airline for loss of passenger’s luggage – limitation of airline’s liability in the Warsaw Convention of 1929’– circumstances in which this limitation will not apply.

The respondent had been a passenger on the appellant’s aircraft on a journey from Tripoli to Nairobi through Rome. The airline had lost his suitcase which he had handed in at the commencement of his journey.

The respondent put in a claim for compensation for the loss of his suitcase and its contents which he valued to Kshs 126,260.

The airline conceded the loss of the suitcase but disputed the nature and value of the goods lost and contended that under the Warsaw Convention of 1929 and the Hague Protocol thereto of 1955, which it argued was the law governing the contract of carriage, its liability to compensate the respondent was limited to $ 400.

The High Court found that the contract was governed by the Convention but that the Hague Protocol of 1955 did not apply because Kenya was not a signatory to it. Under article 4(3) the Convention, the court also found, it was a mandatory requirement for the carrier to record the number and weight of the passenger’s luggage and failure to do so disentitled the carrier from availing itself of the limitation of liability.

The court therefore held the airline liable to the respondent for the actual loss of the suitcase and its contents. This loss was assessed at Kshs 36,000 and an award was made of Kshs 3,000 in general damages.

The airline appealed against the decision arguing, among other things, that as regards the proper law governing the contract of carriage, the parties were free to incorporate the terms of any foreign law.

Held:

1. While it was well established under English common law that a right to incorporate the terms of any foreign law may be freely exercised, the position in Kenya was different.

2. Neither in the pleadings nor in the trial was the jurisdiction of the Kenyan courts to entertain the suit contested. A litigant who submits to the jurisdiction of the Kenyan courts must, ipso facto, submit to the statutory restrictions on the exercise of that jurisdiction.

3. The Judicature Act (cap 8) section 3(3) provided for the laws in conformity with which the jurisdiction of the Kenyan courts was to be exercised. So despite the fact that the contract of carriage had points of contact with Libyan and Italian laws, references to such laws were excluded by the Act.

4. The trial judge was right in finding that the Warsaw Convention of 1929 applied to the contract while the Hague Protocol did not and also in finding that on the evidence adduced before it and according to the provisions of the Convention, the airline was not entitled to rely on a claim of limitation of liability towards the respondent.

5. The trial judge had properly assessed the value of the respondent’s suitcase and its contents. However, there was no reason to justify the award of general damages and that award would be set aside.

Appeal and cross-appeal dismissed.

Cases

No cases referred to.

Texts

1. Shawcross, CN., Beaumont, KM (1985) Air Law London: Butterworths & Co Ltd 4th Edn Chapter 9

2. Freund, OK (1965) The Law of Carriage by Inland Transport London: Stevens & Sons Ltd 4th Edn

3. Chesire and North (1957) Private International Law London: Butterworths 5th Edn 1957 Chapter 8 pp 205-221

Statutes

Judicature Act (cap 8) section 3(3)

International Instruments

1. Protocol to the Convention for the Unification of Certain Rules Relating to International Carriage By Air

2. Convention for the Unification of Certain Rules Relating to International Carriage By Air 1929 articles 4(3), 18(1), 22(2)

Editorial Note

Section 3(1) of the Judicature Act was erroneously cited as section 3(3) in the original judgment.

Abdalla v Republic

Court of Appeal, at Nairobi

August 15, 1989

Masime JA, Gicheru & Kwach JJ A

Criminal Appeal No 46 of 1989

(Appeal from a Judgment of the High Court at Nairobi, Porter J, dated 14th April 1989, in High Court Criminal Appeal No 1144 of 1988)

Criminal Practice and Procedure – trial – failure to interpret the proceedings in a language the accused understands – whether such failure fatal to subsequent conviction.

Constitutional law – constitutional and fundamental rights - rights of an accused person - right to an interpreter - failure by trial court to provide interpreter - effect of such failure.

The appellant was convicted by the subordinate court of the offence of stealing and convicted on a plea of guilty.

He however appealed to the High Court on the ground inter alia that his plea was unequivocal and that he did not understand the language of the court as no interpreter was provided to interpret the proceedings to him in a language that he understood.

The trial court’s record only indicated the presence of the magistrate, the accused and the prosecutor. It did not indicate the presence if any clerk to interpret the proceedings.

The High Court dismissed his appeal holding that the omission did not occasion any prejudice to the appellant or lead to a miscarriage of justice.

Held:

1. It is a fundamental right of an accused person charged with a criminal offence to have the assistance of an interpreter.

2. The record of the trial court alluded to interpretation into Kiswahili but did not state that there was any clerk or interpreter in Court.

3. In the circumstances, there was breach of the appellant’s constitutional and fundamental right which was fatal to the proceedings.

Appeal allowed.

Cases

Kiyato v Republic [1986] KLR 418

Statutes

1. Constitution of Kenya section 77(2)(f)

2. Criminal Procedure Code (cap 75) section 198(1)

Simani v Magotswe

Court of Appeal, at Nairobi

July 14, 1989

Nyarangi, Gachuhi JJA & Kwach Ag JA

Civil Appeal No 147 of 1988

(Appeal from the decision and order of the High Court at Nairobi,Gicheru J dated 30th April 1987 in Civil Appeal No 177 of 1984)

Land Law– panel of elders - whether an appeal to the Resident Magistrates court over a decision of a District Magistrate Court on a land dispute can be referred to a panel of elders – Magistrates’ Jurisdiction (Amendment) Act, 1981 section 9A .

Land Law – whether consent of land adjudication officer is required in respect of subsequent amendment to a claim continued by his earlier consent – Land Adjudication Act (cap 284) section 30.

Civil Practice and Procedure - amendments - amendment of pleadings - whether amendment introduces a new cause of action.

Civil Practice and Procedure – review – party to a suit omitting to call relevant evidence - whether such party entitled to review on grounds of discovery of new and important matter - Civil Procedure Rules (cap 21 Sub Leg) order XLV rule 1.

Evidence – documentary evidence – whether a document neither produced nor admitted in evidence during trial can on appeal be included as part of the record – Civil Procedure Rules order 13 rule 3(1) .

Statutes - amendments - entry into force of new law - transitional provisions - breach of - Magistrate’s Jurisdiction (Amendment) Act 1981. The respondent sued the appellant before the District Magistrates Court alleging trespass and seeking, among other reliefs, the eviction of the appellant.

A defence was filed on behalf of the appellant denying the respondent’s claim. An amended defence was filed in response to an amended plaint in which it was averred that the respondent sold the suit land to the appellant and pursuant thereto boundaries were demarcated by the respondent and witnesses. Consequently the appellant became the owner and occupier of the suit land.

When the suit come for hearing before the District Magistrate, although the appellant and some of the witnesses alluded to the agreement for sale, the agreement was never produced. The District Magistrate came to the conclusion therefore that there was no valid contract for sale in existence and even if one existed the appellant could not enforce it as he was not privy to it.

An appeal to the Resident Magistrates Court come to the same result as the trial Court prompting the appellant to file a second appeal to the High Court which also come to a similar conclusion.

The appellant not being satisfied with the High Court’s decision filed an application for review on the grounds that failure by the High court to take into account the sale agreement constituted an error on the face of the record. He also contended that the proceedings before the District and Resident Magistrate’s Court were entertained without jurisdiction as no consent of the Land Adjudication Officer was sought and that the Resident Magistrate ought to have referred the appeal to a panel of elders in accordance with section 9A of the Magistrate’s Jurisdiction (Amendment) Act.

The appellant further sought to introduce the introduction of evidence of two witnesses who participated in the boundary dispute between him and the respondent before the commencement of the suit arguing it constituted discovery of new and important matter.

The High court declined the review and the appellant appealed to the Court of Appeal.

Held:

1. Reading the Act as a whole the court would require very clear language before it can be persuaded that the amendment also affected the appellate jurisdiction of the subordinate courts. The Act refers to “cases” and the word “appeals” is not used anywhere. The appellate Court could therefore not lawfully refer the issues in the appeal before it to a panel of elders.

2. The District Magistrate heard the case and delivered his judgments well before the Magistrate’s Jurisdiction (Amendment) Act 1981 came into force. The trial court which heard and determined the case would have been in breach of transitional provisions were it to make a reference to a panel of elders.

3. Mere amendment of a plaint to introduce a new cause of action cannot amount to institution of new suit.

4. Whether or not a new cause of action was introduced by the amendment no fresh consent from the Land Adjudication Officer was by law required.

5. The evidence sought to be introduced was that of two persons who had dealt with the boundary dispute well before the respondent instituted proceedings therefore the court did not see how the evidence could be said not to have been within the knowledge of the appellant.

6. Under order XIII rule 3(2) of the Civil Procedure Rules, documents not admitted in evidence do not form part of the record of the suit. The agreement in question was never tendered in evidence and so did not form part of the record in the proceedings.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Act (cap 21) section 71A

2. Civil Procedure Rules (cap 21 Sub Leg) order XIII rules 1,2 3; order XLII rule 1(1)(aa); order XLIV rule 1

3. Land Adjudication Act (cap 284) sections 30(1), (2)

4. Magistrates Jurisdiction (Amendment) Act (Act No 14 of 1981)

Advocates

Mr Khaminwa for the Appellant.

Mr M Owuor for the Respondent.

Kiyana v Republic 421

Court of Appeal, at Nairobi

July 14, 1989

Masime JA, Gicheru & Kwach Ag JJ A

Criminal Appeal No 2 of 1988

(Appeal from a conviction and sentence of the High Court at Nairobi, Dugdale J, dated 6th December 1987 in High Court Criminal Appeal No 1367 of 1987)

Criminal law – being in a state of intoxicaiton to the annoyance of other persons - Kenya Railways Corporation Act (cap 397) section 67(b)(ii) - how offence charged and proved - particulars of charge no stating that appellant’s intoxication was to the annoyance of any other person – whether mere intoxication constituted an offence.

Criminal Practice and Procedure - charge - form of charge – particulars of chare omitting an ingredient of the offence - whether charge proper.

The appellant was tried and convicted on allegation of being intoxicated while on duty causing delay in the departure of a passenger train.

The particulars of the offence however did not allege that the appellant’s state of intoxication was to the annoyance of any other person.

Held:

1. Being in a state of intoxication per se does not constitute an offence under section 67 (b) (ii) of the Act. The state of intoxication must be to the annoyance of some other person.

2. This must not only be charged but must be proved against an accused person beyond reasonable doubt before a conviction can be founded.

3. The appellant’s state of intoxication to the annoyance of some other person was neither charged nor proved against him.

Appeal allowed.

Cases

No cases referred to.

Statutes

Kenya Railways Corporation Act (cap 397) section 67(b)(ii)

Ochino & another v Okombo & 4 others

Court of Appeal at Nairobi

July 13, 1989

Gachuhi, Masime & Kwach JJ A

Civil Appeal No 36 of 1989

(Appeal from the order of the High Court at Nairobi, Mbaluto J, in HCCC No 1572 of 1988, dated 28th November 1988)

Civil Practice and Procedure – contempt of court – committal to civil jail for disobedience of a court order – form of an application for such committal – failure to serve contemnor with an indorsement of penal conquences before filing the application – whether application proper.

The 1st appellant who was the Secretary to the Kenya Petroleum Oil Workers Union, the 2nd appellant, was cited for contempt and imprisoned by the High Court for one month.

The accusation against the 1st appellant was that in disobedience of a court order, he held a meeting at which a decision was taken to dismiss the respondents from the 2nd appellant union.

The court order in issue however did not have an endorsement of penal consequences.

Held:

1. As a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced (by committing him for contempt) unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question.

2. The copy of the order served must be indorsed with a notice informing the person on whom the copy is served that if he disobeys the order he is liable to the process of execution to compel him to obey it.

3. The Court will only punish as a contempt a breach of injunction if it is satisfied that the terms of the injunction are clear and unambiguous.

4. that the defendant has proper notice of the terms and the breach of the injunction must be proved beyond reasonable doubt.

5. Since the correct procedure was not followed in bringing the application for contempt, there was no competent application before the learned judge and consequently no basis upon which the committal of the 1st appellant could be sustained.

Appeal allowed.

Cases

Mongondu, Mwangi v Nairobi City Commission Civil Appeal No 95 of 1988

Statutes

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

2. Judicature Act (cap 8) section 5

Advocates

Mr Ombete for the Respondent.

Makokha v Republic

Court of Appeal, at Nairobi

July 12, 1989

Masime JA, Gicheru & Kwach Ag JJ A

Criminal Appeal No 202 of 1987

(Appeal from a conviction and sentence of the High Court at Nairobi, Shields J, dated 2nd November 1987 in High Court Criminal Appeal No 1060 of 1986)

Evidence – identification by single witness – failure by court to warn itself of danger of convicting on such evidence – whether conviction can stand.

The appellant was tried and convicted of robbery contrary to section 296(1) of the Penal Code.

The prosecution’s case was that the complainant was attacked at his home by three robbers who after robbing him drove off in his Fiat Car.

The car was shortly thereafter sighted in Dagorretti where a police witness flashed his torch on the stationary vehicle and saw three occupants who quickly got out and started running in directions.

Although it was a dark night and the street along which the suspects were found was not lighted the police officer testified that he chased the appellant using a torch and maintained that throughout the chase he never lost sight of him until he was arrested.

Both the trial court and High Court accepted this evidence as satisfactory and convicted the appellant.

Held:

1. While a defendant may be convicted on the identification evidence of a single witness, before a conviction can be based on such evidence the court must warn itself of the danger of doing so and should only convict if satisfied that the circumstances of identification were favourable and the evidence is reliable and free from the possibility of error.

2. In the instant case the trial court did not warn itself of the danger of relying on the evidence of the police constable before convicting the appellant. This conviction was therefore unsafe.

Appeal allowed.

Cases

1. Wamunga v Republic [1989] KLR 424

2. R v Turnbull & others [1976] 3 All ER 549; [1976] 3 WLR 445; [1977] QB 224; (1976) 63 Cr App R 132

3. Abdallah bin Wendo & another v Reginam (1953) 20 EACA 166

Statutes

Penal Code (cap 63) sections 26A, 296(1)