Consolidated Marine Contractors Ltd v Samhere

t/a Samhere Construction Company

High Court, at Mombasa December 19, 1990

Githinji J

Civil Case No 378 of 1988

Agency – non-disclosure – whether a person who enters a contract without disclosing existence of principal is personally liable – extent to which an agent may be liable.

The plaintiff in this case applied to have the defendant’s defence struck off. The defendant was sued in his individual capacity but was shown in the plaint to be trading as “Samhar Construction Company”. The defendant averred that the plaintiff had sued the wrong party as he had dealt with a limited liability company and not with the defendant individually. The said limited liability company had been subcontracted by another company which had been employed by yet another company.

The plaintiff produced a contract between it and the defendant. The defendant admitted to having signed the contract in the space provided for “Semhar Construction Company”. The plaintiff contended that it had always known the defendant in his individual capacity and that the contract had in fact addressed to the defendant as an individual.

Held:

1. Where a person makes contracts in his own name without disclosing the name or existence of the principal, such a person is personally liable on the contract though he may in fact be acting on behalf of a principal.

2. A defendant who did not disclose the name or existence of the principal when making a contract would continue to be liable even after the plaintiff has discovered the agency.

3. A defendant who did not disclose the name or existence of the principal when making a contract will be discharged of liability where the plaintiff unequivocally elects to look to the principal.

Application allowed.

Cases

No cases referred to.

Texts

Hailsham, Lord et al (Eds) (1973-87) Halsbury’s Laws of England London:

Butterworths 4th Edn Vol I para 853

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13(1)

Okech v Republic

High Court, at Kisii December 19, 1990

VV Patel J

Criminal Appeal No 198 of 1990

(From original conviction and sentence of the Seenior Resident Magistrate’s Court at Homa-Bay in Traffic Case No 635 of 1990, Nderu Njuguna Esq Ag RM)

Criminal Law – dangerous driving – test to determine whether a person is guilty of dangerous driving – whether the test is objective.

Evidence – witness – evidence of a single witness – how the court should treat such evidence – when evidence of a single witness may be used to convict.

The appellant was convicted of dangerous driving. At the material time, the appellant had passengers in his car but none of them were called to testify. A single eyewitness said she saw the appellant knocking down a cyclist who died instantly. During cross-examination, the witness said that the appellant’s vehicle and the cyclist were moving in the same direction. During re-examination, however, she said the cyclist emerged from a sidetrack.

The appellant denied the charge and said that he applied his brakes but there being very little distance between his motor vehicle and the cyclist who suddenly emerged from a side road, he hit the deceased. The appellant pointed out that the trial magistrate failed to direct his mind properly to the evidence before him.

The respondent submitted that the evidence established that the manner of the appellant’s driving was dangerous in the circumstances prevailing at the time. There was clear visibility and the appellant hit the cyclist in front of him.

Held:

1. If a driver adopts a manner of driving which is dangerous to other road users in all circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his competent best.

2. When a court is confronted with the testimony of a single witness in support of a charge, it has to be extremely careful in relying on that testimony without warning itself on the dangers in recording a conviction on such evidence by itself. The Court may convict on a sole testimony if the quality thereof were to be sound.

3. In the instant case the respondent did not call other witness to testify and the evidence of the only eyewitness was self-contradictory.

Appeal allowed.

Cases

Regina v Evans [1963] 1 QB 412; [1962] 3 All ER 1086; [1962] 3 WLR

1457; 47 Cr App Rep 62

Statutes

Traffic Act (cap 403) section 46

Advocates

Mr G Maseso for the Appellant.

Mr M Bwonwonga for the Republic.

Evidence – secondary evidence – notice to produce a document – Evidence Act (cap 80) section 69 – to whom such notice is given – when such notice can be dispensed with – party who does not have power over the document or who is outside of the process of c

Kimeu v Kasese (No 2)

High Court, at Mombasa November 2, 1990

Githinji J

Civil Case No 1124 of 1983

Negligence - res ipsa loquitor - circumstances in which an inference of negligence may arise - matters a party has to establish to negative such inference - vehicle travelling at moderate speed skidding off the road and causing accident - whether defence of inevitable accident available to the defendant - whether inference of negligence arising in such circumstances.

Contract - accord and satisfaction - essential elements - defendant injured in accident involving plaintiff’s vehicle - defendant entering into agreement for compensation by the plaintiff - defendant forbearing to make any further claim against the plaintiff in return for some compensation - whether contract invalid for want of compensation - whether contract sound in public policy.

Public policy - agreement for compensation between accident victim and vehicle driver - accident victim forbearing to make any further claim in return for some compensation - whether such agreement sound in public policy.

Damages - general damages - for personal injuries - compression of the lunar spine causing a paralysis of the right foot - diminished power and sensation - weakness of the bladder - quantum of damages.

The plaintiff sued the defendant seeking compensation for injuries she suffered as a result of a road accident which she attributed to the defendant’s negligent driving.

The defendant denied negligence and in the alternative claimed that he had already paid the plaintiff the agreed compensation. It was the defendant’s evidence that after the accident he took the plaintiff to hospital and paid all her medical expenses and that he took care of her family during the time she was hospitalized.

Upon the plaintiff’s discharge from hospital the defendant drafted an agreement which the plaintiff thumb-printed, stating she had been paid all her compensation and agreed never to make any future demand. During the trial, the defendant alleged that the accident was caused by an oil spill on the road. He however did not plead inevitable accident in his defence.

The plaintiff’s injury was a compression of the lumbar spine causing a paralysis of the right foot, diminished power and sensation and weakness of the bladder.

Held:

1. It is an essential element of a valid accord and satisfaction that the agreement which constitutes the accord should itself be binding in law.

2. The agreement between the plaintiff and the defendant cannot be valid in the instant case unless it is supported by consideration. There was no benefit that the plaintiff was getting by promising to forbear from making further claim.

3. It should be noted that the defendant did not raise the defence of inevitable accident. As order VI rule 4(1) of Civil Procedure Rules provides, such a defence should be pleaded.

4. Even if the agreement was to be found valid, the court would hesitate to enforce it as it would be against public policy in the sense that most illiterate accident victims would be denied fair compensation by unscrupulous actions by vehicle owners and insurance companies.

5. Even if the defence of inevitable accident had been pleaded there was no evidence that a vehicle traveling at a moderate speed and being driven carefully would inevitably skid off the road.

6. The circumstances gave rise to an inference of negligence and to escape liability, the defendant had to show that there was a probable cause of the accident which did not connote negligence or that the explanation for the accident was consistent only with the absence of negligence.

Damages assessed at Kshs 175,000/-

Cases

1. Embu Public Road Services v Riimi [1968] EA 22

2. D & C Builders v Rees [1966] 2 QB 617; [1966] 2 WLR 288; 109 SJ 971

3. Muciri v Kamau [1986] KLR 432

4. Kimani, Jacob Chege v Eliud M Kinyanjui & another High Court Civil Case No 462 of 1988 (MBS)

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order VI rule 4(1)

Advocates

Miss Gidali for the Plaintiff

Mr Kimani for the Defendant

N v K

High Court, at Mombasa

Githinji J October 26, 1990

Miscellaneous Civil Case No 58 of 1985 (OS)

Family Law – custody of children – matters the court will consider in determining issues of custody – circumstances in which a mother can be deprived of the custody of her children in preference to the father – two male children aged five and nine – children’s mother remarried and living with five step-children – mother unemployed – second husband’s income not disclosed – children’s father able and willing to provide for them – whether custody should be awarded to the father.

The applicant, who was the ex-wife of the respondent, applied for the custody of their two boy children, one of whom was aged nine and a half years and the other five and a half. Both the applicant and the respondent had remarried. The applicant’s second husband had five children from previous marriages and he lived with his parents and sister. The applicant claimed that her two children also lived with her but a report by the Provincial Children’s Officer stated that the children had been living with their maternal grandmother. The applicant had no source of income and her husband’s income was not disclosed to the court.

Held:

1. The paramount consideration in this type of case is the welfare of the children. To deprive a parent of access is to deprive a child of an important contribution to his emotional and material growing up in the long run.

2. In cases involving very young female children, there is a rule in favour of the mother in the absence of exceptional circumstances.

3. The applicant’s house was not a suitable place for the two children tolive.

4. The respondent was a suitable parent and he was possessed of sufficient means to guarantee the children a good life, better education and a sense of belonging.

5. The children were boys and were big enough. It was not for their long term well being that they should be alienated from their father. This was one of the exceptional cases where the mother should be denied custody of the children.

Application dismissed.

Cases

Githunguri v Githunguri [1981] KLR 598; [1982-88] KAR 1

Statutes

No statutes referred.

Family Law – custody of children – matters the court will consider in determining issues of custody – circumstances in which a mother can be deprived of the custody of her children in preference to the father – two male children aged five and nine – child

Kamanja v Republic

High Court, at Nyeri October 12, 1990

Tunoi J

Criminal Appeal No 5 of 1990

(Appeal from a Judgment of the Senior Resident Magistrate’s Court at

Nyeri, FN Muche Ag SRM Esq, in Criminal Case No 817 of 1989)

Evidence – Witness evidence – recognition and identification – factors aiding recognition identification.

The appellant was convicted of the offence of robbery on the strength of recognition and identification evidence. The appellant on appeal argued that he was not properly recognised.

The appellant was well known to the complainant who had given him a lift and employed him as a casual labourer. The appellant and complainant had also conversed before the incident and were drinking mates. During the incident the appellant spoke and was recognised by voice. The witnesses further recognised the appellant by moonlight and torch light and promptly identified the appellant as the attacker to the police.

Held:

On the evidence the court came to the right conclusion and was justified in convicting the appellant and rejecting his evidence. The witnesses had more than enough opportunity in seeing the appellant and recognising his voice.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1)

Abraham William Mudoola & another v Republic

High Court, at Mombasa October 12, 1990

Omolo J

Criminal Appeals Nos 81 & 82 of 1990 (Consolidated)

(From original conviction and sentence, J O Magolo, Esq Ag R M, in Criminal Case No 950 of 1986 of the Resident Magistrates Court at Kwale)

Criminal Practice and Procedure – trial – new magistrate taking over proceedings from a previous one – whether failure to inform the accused of their right to have witnesses resummoned fatal to the trial – section 200(3) Criminal Procedure Code (cap 75) section 200(3).

The appellants, who were initially tried by the same magistrate, had their case allocated to a new magistrate after hearing three key prosecution witnesses. The new trial magistrate however did not inform the appellants of their right to demand the recalling of the witnesses already heard. They were eventually convicted and they filed this appeal.

Held:

1. In taking over the trial the succeeding magistrate was under a duty to inform the appellants that they were entitled to have the previous witnesses resummoned and retestify.

2. The provisions of section 200(3) of the Criminal Procedure Code (cap 75) are meant for the protection of accused persons and they must be rigorously complied with.

Appeal allowed.

Cases

Ndegwa v Republic [1985] KLR 534

Statutes

1. Penal Code (cap 63) section 281

2. Criminal Procedure Code (cap 75) section 200, 200(1), (3)

Advocates

Mr Wafula for the Appellants

Mr Metho for the Respondent

Bachitter Singh Chase v Barclays Bank of Kenya Ltd

High Court, at Nairobi October 3, 1990

Bosire J

Civil Case No 4549 of 1987

Employment Law – permanent and pensionable employment – whether person under such employment is irremovable–– promotion and improvement of terms of employment – whether promotion creates new contract or merely varies the original contract – distinction between summary dismissal and termination of contract of employment–– employee cited for misconduct – employer opting to terminate contract rather than dismiss employee – whether proper for employer to fail to pay employee’s pension.

Contract – variation of a contract - contract of employment – promotion of employee with improved terms of service – whether promotion creates a new contract or merely varies the original one – distinction between summary dismissal and termination of contract of employment.

The plaintiff was employed as a bank clerk by the defendant in 1962. He served for a probationary period of six months after which he was confirmed and he received a series of promotions so that by 1985, he was in the management cadre holding the position of a sub-manager.

In his several promotions, the plaintiff had not received any written communication varying the terms of employment set out in his letter of appointment of 1962, except with regard to his personal emoluments. In October, 1986, the defendant, acting under the terms of the letter of appointment of 1962, terminated the plaintiff’s service and paid him one month’s salary in lieu of notice of termination. The defendant informed the plaintiff that it was entitled to dismiss him summarily for gross misconduct but that in view of his long service, it had decided to merely terminate his service. The defendant paid the plaintiff accrued emoluments but declined to pay his pension.

In his suit against the defendant, the plaintiff claimed that he had become a permanent and pensionable employee and he could not be removed until he had attained retirement age. Further, he asserted that with each promotion he received, a new contract was created between him and the defendant so that the terms contained in his original letter of appointment no longer applied. Consequently, he argued that his dismissal was wrongful and he was therefore entitled to damages.

Held:

1. The plaintiff’s employment with the defendant was permanent and pensionable. However, permanent employment does not necessarily mean employment for life or until retirement; it merely means that the employment is to continue for an indefinite period with an element of permanency and a degree of security of tenure.

2. If an employee by the terms of his contract is to receive remuneration at a progressive rate, there is no new contract formed on each occasion his salary is thus increased. But the situation is different when the increase is done not automatically under an existing contract but owing to the position of the employee being changed by employers voluntarily promoting him to a higher grade.

3. Except for better personal emoluments, there was no evidence to show that the plaintiff’s promotion had brought him any better terms than under the original contract of 1962.

4. Therefore, although the original contract was replaced, the provisions as to termination were carried forward or re-enacted each time a new contract was created. The provisions as to termination were therefore as embodied in the original contract of 1962.

5. As a general rule, a dismissal comes about due to breach of a term of the contract of employment. A termination is where a party to a contract exercises a right under the contract to lawfully bring it to an end by notice even without a breach.

6. The plaintiff ceased to be an employee of the defendant upon payment of one month’s personal emoluments. He was not dismissed. His contract of employment with the defendant had been terminated.

7. As there was a clear stipulation in the contract that the plaintiff was a monthly servant, section 145(5)(iii) of the Employment Act (cap 226) applied, so that the defendant was obliged to give him one month’s notice before terminating his contract of employment.

8. The plaintiff’s actions had amounted to misconduct which entitled the defendant to dismiss him. As the defendant had waived its right to dismiss the plaintiff and instead chose to terminate his contract, the plaintiff was entitled to terminal benefits. It was unconscionable and inequitable to deny the plaintiff his pension.

Plaintiff’s claim for pension allowed, other claims dismissed.

Cases

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

2. Meek v Port of London Authority (1918) 1 Ch D 415

3. Bridge v Campbell Discount Co Ltd [1962] 1 All ER 385; [1962] AC 600; [1962] WLR 439

4. Sifuna, RM v Commercial Bank of Africa NAI High Court Civil Case No 1069 of 1985

Texts

1. Treitel, GH (1970) The Law of Contract London: Sweet & Maxwell 3^rd Edn p 86

2. Freedland, MR The Contract of Employment Oxford: Clarendon Press p 67

Statutes

Employment Act (cap 226) sections 14(5)(iii), 16

Advocates

Mr KM Maini led by M Kilonzo for the Plaintiff

Mr F Ojiambo for the Defendant

African Safari Club Limited v Kenya Kazi Limited

High Court, at Nairobi September 27, 1990

Amin J

Civil Case No 312 of 1988

Contract – interpretation of contract – interpretation of contract in light of an exemption clause- whether court can delete an exemption clause or interpret a contract in a manner which would avoid absurdity.

Contract – breach of contract – application of the doctrine of fundamental breach –whether the court can nullify a mutually agreed contract on grounds of fundamental breach.

The plaintiff contracted the services of Kenya Kazi Ltd to provide security for such monies as the plaintiff would from time to time place in its custody for transit.

The terms of the contract inter alia provided an exemption clause to the effect that Kenya Kazi would not be responsible for loss or damage unless it is shown that the same was directly due to the dishonesty or theft on the part of Kenya Kazi or its employees. In this case the employee must have been convicted of an offence under the Penal Code (cap 63).

Money belonging to the plaintiff was robbed while in transit and while in the custody of the defendant, in circumstances that strongly suggested the involvement of Kenya Kazi employees. None of the employees were however charged or convicted of the theft.

The insurance company having indemnified the plaintiff brought subrogation proceedings against the defendant to recover the sums indemnified.

The company argued that the exemption clause could not operate as there had been fundamental breach. The company argued in the alternative that the exclusion clause should be deleted or the interpretation of the contract should be strict so as to avoid absurdity.

Held:

1. From the facts and the contract before the court the parties were of equal bargaining power and knew what was being agreed to. The words of the contract were therefore to be construed strictly to give them their natural meaning.

2. Clear and concise words in the contract demonstrated that it was the intention of the parties that the risk of loss should be borne by the employer. Where theft was committed by servant, the contract provided that the plaintiff had to satisfy that the employee was charged and convicted. These were unambiguous terms. The situation in this case was therefore anticipated and the parties agreed to provide for this eventuality.

3. The rule of law as to fundamental breach therefore did not find an existence in the case before the court.

Application dismissed.

Cases

1. Levison v Patent Steam Carpet Cleaning Co Ltd [1978] 1 QB 69; [1977] 3 All ER 498; [1977] 3 WLR 90

2. Mendelssohn v Normand Limited [1970] 1 QB 177; [1969] 3 WLR 139; [1969] 2 All ER 1215; (1969) 113 SJ 263

3. Harbutts “Plasticine” Limited v Wayne Tank Pump Co Limited [1970] 1 QB 477; [1970] 2 WLR 198; [1970] 1 All ER 225; 114 SJ 29

4. East African Road Services Ltd v Davis & Co Ltd [1965] EA 676

5. Schluter & Co Ltd v Railway Corporation [1975] EA 157

6. United Manufacturers Ltd v Wafco Ltd [1974] EA 233

7. Photo Production Ltd v Securicor Transport Limited [1980] AC 827; [1980] 1 All ER 556; [1980] 2 WLR 283

8. Suisse Atlantique Societé d’Armement Maritime SA v N V Rotterdamsche Kolen Centrale [1967] 1 AC 361; [1966] 2 All ER 61; [1966] 2 WLR 944; [1966] 1 Lloyd’s Rep 529

9. Chaterhouse Credit Co v Tolly [1963] QB 683; [1963] 2 WLR 1168; [1963] 2 All ER 432; 107 SJ 234

10. Wathes (Western) Ltd v Austins (Menswear) Ltd [1976] 1 Lloyd’s Rep

14; (1975) 119 SJ 527

11. Karsales (Harrow) Ltd v Wallis [1956] 1 WLR 936; 100 SJ 548; [1956] 2 All ER 866; 222 LT 129

12. UGS Finance Ltd v National Mortgage Bank of Greece and National Bank of Greece SA [1964] 1 Lloyd’s Rep 446; 107 SJ 552

Texts

Guest, AG et al (Eds) (1976) Chitty on Contracts London: Sweet &

Maxwell 25th Edn Vol 1

Statutes

1. Penal Code (cap 63)

2. Unfair Contract Terms Act 1977 [UK]

Advocates

Mr Fraser for the Plaintiff

Mr Inamdar for the Defendant