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)

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

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

Republic v Mohamed

High Court, at Mombasa August 16, 1990

Githinji J

Criminal (Revision) Case No 25 of 1990

(From original conviction and sentence in Criminal Case No 496 of 1990 of the

Resident Magistrate’s Court at Mombasa, G M Njuguna, Esq, RM)

Criminal Practice and Procedure – revision – where a court exercises revisionary jurisdiction – whether such a court can fault a lower court’s finding of fact which has not been appealed from.

Witness – non-attendance - penalty for non-attendance by a witness – consequence for a witness who defaults in paying a fine by attachment – whether a lower court has jurisdiction to levy a sentence of a fine in the first instance – whether a court can commit a witness to jail if he defaults in paying a fine by attachment – section 149 of the Criminal Procedure Code (cap 75).

A witness was summoned to appear before the Resident Magistrate to give evidence. The witness did not appear and the magistrate issued a warrant of arrest. When brought to court the witness explained that he had attended on the requisite day and that he had been waiting outside the court.

The court concluded that the witness was not telling the truth and found that he failed to attend court without just cause. The witness was sent to jail for 14 days.

The witness’ brother stated in a letter that the witness attended court on the material day and waited in the corridor of the magistrate’s chambers not knowing that the magistrate was sitting in court.

Held:

1. Where a lower court makes a finding of fact which is not appealed, against it is difficult for a court exercising revisionary jurisdiction to fault the lower court on such a finding of fact.

2. Under section 149 of the Criminal Procedure Code (cap 75) the penalty for non-attendance by a witness is a fine which should be levied by attachment.

3. In default of recovery of a fine by attachment under section 149 of the Criminal Procedure Code (cap 75), the court has power to commit the witness to civil jail.

4. Where a fine which has been imposed cannot be recovered by attachment, a lower court has no jurisdiction under section 149 of the Criminal Procedure Code (cap 75) to commit the witness to prison. The witness can only be committed to civil jail. The sentence was therefore illegal.

Sentence set aside.

Cases

No cases referred to.

Statutes

Criminal Procedure Code (cap 75) sections 149, 149(4)

Swaleh v Republic

High Court, at Mombasa August 3, 1990

Githinji J

Criminal (Revision) Case No 18 of 1990

(From the original conviction and sentence in Criminal Case No 66 of 1990 at Mombasa, GM Njuguna, Esq, RM)

Criminal Law – nuisance – where a dwelling house is rendered unfit for human habitation by some nuisance – powers of a court under the Public Health Act (cap 242) section 120 (9) – nature of proceedings under the Act – effect of a closing order – how a court should exercise its jurisdiction under the Act.

The applicant was the tenant of a dwelling house in which the pit-latrine was full. He reported the matter to the Public Health Officer. The owner of the house was subsequently charged and convicted for failing to abate the nuisance. The applicant offered to empty the pit latrine and off-set the costs from the rent. The court decided that the tenant should vacate the premises in order for repairs to be carried out and gave the tenant 2 months to look for alternative accommodation.

The applicant argued that the magistrate had no jurisdiction to order him to vacate the premises and that that jurisdiction is given to Rent Tribunal.

Held:

1. Under section 120 (9) of the Public Health Act (cap 242), if a court is satisfied that some nuisance renders a dwelling house unfit for human habitation, it may issue a closing order and may make a further order that no rent shall be due or payable by a tenant during the duration of the closing order.

2. Upon being satisfied that a dwelling house has been rendered habitable, a court has power to terminate a closing order with respect to that dwelling house.

3. Proceedings under the Public Health Act are of a criminal nature and a court is empowered to close down the dwelling house if the nuisance renders it unfit for human habitation.

4. The effect of a closing order is to remove the tenant or occupier from the dwelling house.

5. When a court is exercising its jurisdiction under section 120 (9) of the Public Health Act, it is not bound to consider the convenience of the tenant or occupier.

6. Though a magistrate has jurisdiction to issue a closing order and to order the tenant to vacate, such jurisdiction to order a tenant to vacate cannot be exercised outside a closing order or a demolition order.

Application dismissed.

Cases

No cases referred to.

Statutes

Public Health Act (cap 242) sections 119, 120(1)

Republic v Abeid

High Court, at Mombasa July 12, 1990

Githinji J

Criminal Revision Case No 13 of 1990

(From original conviction and sentence (I Indeche Esq SRM) in Traffic Case No 21172 of 1989 of the Principal Magistrate’s Court at Mombasa)

Criminal Practice and Procedure - revision – revisionary Jurisdiction of the High Court – powers of the High Court in exercising criminal revision - matters the revision court will consider before interfering with the decision of the trial court - whether court precluded from exercising revision where the party bringing it failed to exercise its right of appeal.

The accused was convicted of four counts of causing death by dangerous driving. He was fined Shs 10,000.00 and in default one year imprisonment. At the initiation of the deceased’s family, the Principal State Counsel wrote to the Deputy Registrar protesting the inadequacy of the sentence and asking him to issue notice to show cause why the sentence should not be enhanced. The Deputy Registrar listed the case for revision and issued the requisite notice to the accused. Revision was opposed on grounds that the state had a right of appeal which it had failed to exercise.

Held:

1. The powers of the High Court in exercising revisionary jurisdiction are specified in section 364(1) of the Criminal Procedure Code (cap 75) and include the powers specified in section 354(3) of the Criminal Procedure Code. The High Court can reduce or increase the sentence or alter the nature of the sentence.

2. The principle is that an appellate court should not interfere with the discretion which the trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into consideration some immaterial factor, acted on a wring principle or the sentence is manifestly excessive or manifestly lenient in the circumstances of the case.

3. The evidence clearly indicates that the accused was grossly wreckless and took deliberate risks. It is in the interest of the public that by dint of the circumstances of this case the revision of the sentence should be exercised and a custodial sentence imposed.

4. Section 364(5) of the Criminal Procedure Code was not intended to preclude the High Court from considering the correctness of a finding or sentence merely because the application has been brought by a party who has had a right of appeal that was not exercised.

Case revised, sentence varied.

Cases

1. Orweryo Missiani v Republic [1979] KLR 285

2. R v Singh [1957] EA 822

3. Wanjema v Republic [1971] EA 493

Statutes

1. Traffic Act (cap 403) section 46

2 Criminal Procedure Code (cap 75) sections 354(3), 362, 363(5); 364(1); 364(2); 364(5); 365

3. Traffic (Amendment) Act No 1 of 1986

Advocates

Mr Gakuhi for the Respondent.

Mr Metho for the Applicant.

Criminal Practice and Procedure – security for keeping the peace – steps that a magistrate has to take before making an order to execute a bond – requirement to hold an inquiry – nature of the inquiry – whether a person is required to sign a bond if he ac

Daniel Mwagona & 3 others v Republic

High Court, at Mombasa July 12, 1990

Githinji J

Criminal Appeals Nos 538, 539, 540 & 541 of 1989 (Consolidated)

(From the original conviction and sentence of the Resident Magistrate’s Court

at Kilifi, PM Ndungu, Esq, RM in Criminal Case No 823 of 1989)

Criminal Practice and Procedure – security for keeping the peace – steps that a magistrate has to take before making an order to execute a bond – requirement to hold an inquiry – nature of the inquiry – whether a person is required to sign a bond if he accepted to sign it before the inquiry - Criminal Procedue Code (cap 75) sections 43, 47, 52, 53..

The four appellants in this case appeared in court to show cause why they should not be bound over to keep peace. Each of them stated that he was ready to sign a bond to keep peace. The magistrate thereupon ordered each appellant to keep peace and not to cause any disturbance for a period of one year. Each appellant executed a bond of Kshs 10,000/-.

Two of the appellants were later interdicted because of the order to keep peace. They argued that the order to keep peace and to execute a bond was a nullity as the magistrate had not complied with the proper procedure.

Held:

1. Before making an order to execute a bond, a magistrate must hold an inquiry as provided in the Criminal Procedure Code (cap 75) section 52(2) as nearly as the manner in which trials in criminal cases are conducted.

2. Where an inquiry proves that the information upon which the action has been taken is true, the magistrate has to decide whether it is necessary for keeping peace that the accused person should be required to execute a bond.

3. The nature of an inquiry into the truth of the information upon which the action has been taken does not envisage the recording of a plea as there is no charge.

4. The person against whom the complaint is made should be given a chance to defend himself. Further, as there is no charge, a person is not required to execute a bond merely because he accepts to sign it before the magistrate has held a full inquiry and satisfied himself that the information upon which the action is taken is true.

Cases

No cases referred to.

Statutes

Criminal Procedure Code (cap 75) sections 43, 43(1), 47(a)-(c), 52, 52(1),

52(2), 53, 53(1)