Nyongesa & 4 others v Egerton University College

Court of Appeal, at Nairobi December 17, 1990

Nyarangi, Gachuhi & Masime JJ A

Civil Appeal No 90 of 1989

(Appeal from the Ruling and Order of the High Court at Nakuru

(Tunoi J) dated 12th April 1989 in High Court Misc Civil Application No 10 of 1987)

Judicial review – displinary action against University students – University Board acting without giving students opportunity to be heard – whether disciplinary action can stand - whether University Board and Senate bound by rules of natural justice - whether rules of natural justice breached - reluctance of courts to interfere with decisions of domestic bodies.

Natural Justice - right not to be condemned unheard – University disciplinary body decidng to expel students - students not given notice of the proceedings or opportunity to be heard - whether disciplinary proceedings proper - whether proceedings conducted in breach of natural justice.

The appellants, who were students of the respondent University, appealed against the High Court’s decision refusing to issue an order of mandamus against the University to command it to release the results of the appellants for diploma examinations which they had set and to award the relevant certificates to those appellants who may have passed their respective examinations.

The University justified the disciplinary action against the appellants contending that they were lawfully expelled before the end of the academic year and were thus not entitled to results or the award of certificates.

The Academic Registrar of the University deponed that the appellants undermined the authority of the institution by staging an unlawful strike which led to postponement of terminal examinations for first and second year students.

The Registrar further stated that he wrote to each appellant to inform each of them of the alleged misconduct and to convey the decision of the displinary committee and of the Board that the appellants had been expelled from the college. No notice of the charges or the meeting in which the decision of the disciplinary committee was reached had been given to any of the appellants.

It was however contended on behalf of the University that the appellants were not heard because they had by their conduct waived that right

Held:

1. The Board, the Senate and the Disciplinary Committee of the University were not judges in the proper sense of the word. However each was required to give each applicant an opportunity of being heard before it and stating his case and view.

2. There was a failure of natural justice. It was necessary for each applicant to be served with a notice that he was being proceeded against and each organ which dealt with the applicants was required to act honestly and fairly.

3. In the absence of specific provisions or rules as to how the Board, Senate and the Disciplinary Committee of the University were to proceed to decide the matter the law of Kenya will imply no more than that the substantial requirements of the law shall not be violated.

4. Courts are loath to interfere with decisions of domestic bodies and tribunals including college bodies. However, the courts will interfere to quash decisions of any bodies when moved to do so where it is manifest that decisions have been made without fairly and justly hearing the person concerned or the other side.

5. (Per Masime JA) The proceedings of the discilinary bodies of the respondent college were in breach of the rules of natural justice and were consequently null, void and of no effect.

Appeal allowed.

Cases

No cases referred to.

Texts

Simonds, Lord et al (Eds) (1953) Halsbury’s Laws of England London:

Butterworths 3rd Edn Vol II p 65 para 122

Statutes

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

2. Egerton University College Act, Act No 15 of 1986 section 14(1)

Advocates

Mr Ochieng for the Appellants

Mr Sheth for the Respondent

Paul Joseph Ngei v Official Receiver

Court of Appeal, at Nairobi November 22, 1990

Nyarangi, Masime & Cockar JJ A

Civil Appeal No 111 of 1990

(Appeal from a Ruling and Order of the High Court at

Nairobi (Akiwumi J) dated 14th June 1990 in High Court

Bankruptcy Cause No 14 of 1988)

Bankruptcy – adjudication of bankruptcy - procedure for applying for an adjudication order - whether by Chamber Summons or Notice of Motion - public examination of a debtor - whether failure to hold public examination renders adjudication null and void - debtor declining to accept service of statement of affairs - whether debtor can plead non-service - adjournment of bankruptcy proceedings - scope of the court’s discretion in granting an adjournment.

The appellant was adjudged bankrupt by the High Court following an application by the official Receiver.

On appeal it was contended on behalf of the appellant that the trial judge wrongly exercised his discretion in refusing an adjournment and that the application for the debtor to be adjudged bankrupt was incompetent having been made by Chamber Summons instead of by Notice of Motion. It was further argued by the appellant that the proceedings consequent upon the receiving order were contrary to rule 138(2) of the Bankruptcy Rules in that there was no notice requiring the appellant to attend on the official Receiver so that the Receiver could give instructions as to the furnishing of a statement of affairs. Counsel also argued that the official Receiver did not serve the appellant with the receiving order as is required by rule 141 and that no verified copy of a statement of affairs submitted by the appellant was filed in court.

The respondent however maintained that the Bankruptcy order was properly made and that a letter addressed to the appellant pointing out to him that he was required under section 16 of the Act to submit to the Official Receiver his statement of affairs within fourteen days from the date of the letter was personally delivered to the appellant by a state counsel attached to the official Receiver’s office which the appellants read but declined to accept service of. Another letter was subsequently sent to the appellant by registered post and was not returned unclaimed.

Held:

1. As bankruptcy has quasi–penal consequences, the procedural steps contained in the Bankruptcy Act must be viewed strictly.

2. Under the Bankruptcy Rules rule 15, the application for an order to adjudge the appellant bankrupt should have been made by motion.

However, that notwithstanding, the court did not consider that substantial injustice had been caused by the irregularity.

3. The appellant had not resisted the affidavit evidence that he declined service of the receiving order together with two sets of a statement of affairs. That being the factual position the appellant could not be heard to complain that rule 149 was not adhered to.

4. The particulars which have to be shown on a statement are so diverse and so vital for public examination and a compensation or scheme of arrangement that only a verified statement would be credible.

5. The court finds it difficult to suppose that the legislature intended that a public examination must in all cases be held before adjudication.

6. The power of adjournment is given to the Court by section 104(2) of the Act. The power is very wide indeed. The court is expected of course to exercise its discretion judicially.

Appeal dismissed.

Cases

1. R v Pike [1902] 1 KB 552

2. Mota Singh, In the matter of (1934 - 35) 16 KLR 33

3. Nandhra and Others v Munshi Ram & Co Ltd [1965] EA 753

4. Ngei v Official Receiver [1989] KLR 43

5. Beck v Value Capital Ltd (No 2) [1976]1 WLR 572; [1976] 2 All ER 102

Texts

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

Butterworths 4th Edn Vol III paras 399, 400

Statutes

1. Bankruptcy Act (cap 53) sections 14, 16, 16(1), 16(2), 16(2)(a), 16(2)(b); 17, 17(1), 17(2), 17(10); 18(7); 20, 20(1); 33, 33(1); 104(2); 133(1)

2. Appellate Jurisdiction Act (cap 9) section 3(2)

3. Bankruptcy Rules (cap 53 Sub Leg) rules 5(1); 15, 16, 138(2); 141, 149, 149(1), 149(2), 149(3); 150, 151, 204

4. Court of Appeal Rules (cap 9 Sub Leg) rule 29

Advocates

Mr Mwirichia for the Appellant

Mr Ole Keiwua for the Respondent

Githu v Katibi

Court of Appeal, at Nairobi November 5, 1990

Nyarangi, Masime JJ A & Cockar Ag JA

Civil Appeal No 47 of 1989

(Appeal from the judgment and order of the High Court of Kenya

at Nairobi (Porter J) dated 20th December, 1988 in High Court

Civil Case No 4758 of 1987)

Land Law – controlled transaction – whether agreement for sale of agricultural land is a controlled transaction – Land Control Act (cap 302) section 6(1) - parties not applying for Land Control Board Consent - whether agreement void - whether purchaser entitled to lodge a caveat against the title to the land - Registration of Titles Act (cap 281) section 57.

The appellant, who was the defendant in the High Court, appealed against that court’s order allowing the plaintiff’s application for extension of the period of a caveat under section 57(8) of the Registration of Titles Act. The respondent had entered into agreement with the appellant for sale of agricultural land and proceeded to register a caveat against the title to protect his interest as a purchaser.

The appellant however applied for the removal of the caveat as he had negotiated a new sale to a third party and called on the respondent to agree to the cancellation of the agreement. The respondent declined the request and proceeded to sue for specific performance. It transpired that no consent to the transaction between the respondent and the appellant had been obtained within the stipulated period.

Held:

1. An agreement for the sale of agricultural land is a controlled transaction and therefore caught by section 6(1) of the Land Control Act (cap 302).

2. Under the provisions of section 9(2) of the Act, such an agreement shall become void unless the Land Control Board for the land control area where the land is situated has given the necessary statutory consent.

3. As there was no application for consent made to the relevant Land Control Board, the respondent had no legal interest capable of registration under the Registration of Titles Act (cap 281).

Appeal allowed.

Cases

Shamalla v Chibeu [1988] KLR 251

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rule 38

2. Registration of Titles Act (cap 281) sections 57(1),(8)

3. Land Control Act (cap 302) sections 6, 6(1), 6(3), 8(1), 9(2)

4. Land Control Act 1967

Advocates

Mr Kowade for the Appellant.

Mr Ransley for the Respondent.

Pop-In (Kenya) Ltd & 3 others v Habib Bank AG Zurich

Court of Appeal, at Nairobi October 5, 1990

Nyarangi, Gachuhi & Kwach JJ A

Civil Appeal No 80 of 1988

(Appeal from the Judgment and Decree of the High Court of Kenya

at Nairobi (Mr Justice A Rauf) dated 24th November, 1987 in Civil Case

No 1893 of 1987)

Civil Practice and Procedure – res judicata – extended application of res judicata – where a claim made in a subsequent suit between the same parties could have been made in a previous suit – whether subsequent suit is res judicata.

The appellants appealed against a decision of the High Court by which their suit was dismissed for being based on averments barred by the doctrines of estoppel and res judicata.

One of the arguments advanced by the appellant’s counsel was that it was essential for the former suits to have been adjudicated before res judicata could be invoked and further that the earlier actions had been withdrawn before adjudication.

In opposing the appeal, the respondent argued that the suit was barred upon an extended application of the principle of res judicata in that in their earlier suit, the appellants could have made the claim which they made in the subsequent suit, but they had failed to do so.

Held:

1. The plea of res judicata applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have been brought forward at the time.

2. The admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started with a view of obtaining another judgment upon a different assumption of fact.

Appeal dismissed.

Cases

1. Hoystead & others v Taxation Commissioner [1925] All ER Rep 56

2. Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581;

[1975] 2 WLR 690; 119 SJ 273

Statutes

No statutes referred.

Advocates

Mr Lakha for the Respondent.

Mr Shah for the Appellants.

Premchand Nathu & Co Ltd & 4 others v Kariuki

Court of Appeal, at Nairobi July 13, 1990

Gachuhi, Gicheru & Cockar JJA

Civil Appeal No 33 of 1990

(Appeal from the Ruling and Order of Shields J dated 20th November 1989 in Civil Appeal Nos 147, 148-154, 157 of 1989)

Jurisdiction – jurisdiction of the Court of Appeal–– where the High Court dismisses an appeal from the Business Premises Rent Tribunal and refuses to set aside that dismissal – whether the Court of Appeal has jurisdiction to determine an appeal against the refusal to set aside the dismissal – section 66 of the Civil Procedure Act (cap 21) – section 3(1) of the Appellate Jurisdiction Act (cap 9) – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) section 15(4), regulation 15 and 16.

The appellants had appealed to the High Court against a determination made by the Business Premises Rent Tribunal. The High Court dismissed the appeal on the ground that there was no sufficient reason for interfering with the decision of the Tribunal. The appellants applied to have the dismissal set aside but this was also rejected.

The appellants then sent to the Court of Appeal and argued that the matter was not a further appeal from the dismissal of appeal from the Tribunal but was an appeal from the refusal of the High Court to set aside the dismissal. They relied heavily on section 66 of the Civil Procedure Act (cap 21) to show that the Court of Appeal had jurisdiction in such matters.

Held:

1. All that section 66 of the Civil Procedure Act (cap 21) prescribes is that an appeal shall lie from a decree or any part of a decree and the orders of the High Court to the Court of Appeal except where otherwise provided in that Act. This section does not define the jurisdiction of the Court of Appeal.

2. It is clear from section 3(1) of the Appellate Jurisdiction Act (cap 9) which defines the jurisdiction of the Court of Appeal, that not every determination from the High Court is appealable. The jurisdiction of the Court of Appeal to entertain an appeal form the High Court is essentially derived from the law which is applicable to the matter in issue before the High Court.

3. Under Section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act it is only the procedure and the particular sections of the Civil Procedure Act relating to appeals in civil matters from subordinate courts to the High Court which have been adopted.

Section 66 of the Civil Procedure Act is neither related to nor is it a part of the procedure in respect of such appeals.

4. The Civil Procedure Act (cap 31) does not apply to the Landlord and Tenant Act (cap 301) except in very limited areas as defined in regulations 15 and 16 thereof. There is no mention of the Civil Procedure

Act anywhere in the Landlord and Tenant Act itself.

5. The court in this case is of the view that there is a clear manifestation of the intention of the Legislature to bring finality to appeals from the Business Premises Rent Tribunal with the decision of the High Court. Trying to take the appeal on some pretext beyond the High Court is an attempt to defeat the purpose of the Legislature. The Court of Appeal therefore has no jurisdiction to entertain this appeal.

Appeal struck out.

Cases

1. Shah, Mohanlal Henraj & another v Elias Warungu Kariuki Civil Application No NAI 220 of 1989

2. Mudavadi v Kibisu [1970] EA 585

3. Alibhai, Hamzaali & 3 others v Amirali T Sulemanji & others Civil Appeal No 2 of 1985

4. Odongo & 6 others v Savings and Loan Kenya Ltd [1988] KLR 224

5. Gatanga General Store & 2 others v Githere [1988] KLR 603

Statutes

1. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) sections 15(2), 15(4)

2. Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations (cap 301 SubLeg) regulations 15, 16

3. Civil Procedure Act (cap 21) sections 3A, 66, 79B

4. Civil Procedure Rules (cap 21 Sub Leg) order XLI

5. Appellate Jurisdiction Act (cap 9) section 3(1)

6. Court of Appeal Rules (cap 9 Sub Leg) rules 5(2)(b), 42

7. Judicature Act (cap 8)

Advocates

Mr Gautama for the Appellant.

Mr Trivedi for the Respondent.

Joseph Ochieng & 2 others t/a Acquiline Agencies v First

National Bank of Chicago

Court of Appeal, at Nairobi June 8, 1990

Nyarangi, Gicheru & Kwach JJ A

Civil Appeal No 54 of 1989

(Appeal from the ruling and decree of the High Court of Kenya at Nairobi

(Rauf J) dated 20th March, 1989 in Civil Case No 3818 of 1985)

Civil Practice and Procedure - striking out pleadings - striking out plaint for failing to disclose a cause of action - claim for inducing breach of contract - plaint not pleading malice or giving particulars of malice - whether such omission a curable defect - court moved to strike out plaint through a preliminary objection - whether such procedure proper – plaintiff unrepresented - whether proper to strike out the plaint - duty of applicant to state concisely the grounds of his application - Civil Procedure Rules order VI rule 13.

Tort - inducing a breach of contract - essential ingredients of the tort - plaintiff to plead malice and give particulars of malice.

The appellant, who was the plaintiff in the High Court sued the respondent for damages for inducing breach of contract and for an injunction restraining the respondent from exercising its statutory power of sale in relation to the appellant’s mortgaged property.

It was the appellant’s claim that the respondent wrongfully and unlawfully induced a breach of contract between the appellant and third parties by claiming that the appellant’s firm through which they contracted was bogus, of doubtful existence and incapable of performing the contract of in question.

When the trial opened the respondent’s counsel by way of preliminary objection, sought to strike out the plaint for disclosing no cause of action. The judge held that the plaint did not set out important averments relating to the alleged inducement of a breach of contract and consequently did not disclose any cause of action and ordered it struck out. The appellant, who had appeared in person, appealed against the judge’s decision.

Held:

1. The essential ingredients of the tort of inducing a breach of contract are that the wrongdoer knew or acquired knowledge of the contract in question and its essential terms, that he so acted or interfered whether by persuation, inducement or procurement or other means to show that he intended to cause a breach of the contract or prevent its performance by one party to the detriment of the other party, that the breach was directly attributable to such act or interference and that damage was occasioned or was likely to be occasioned to such other party.

2. Although in the plaint in the present case it was stated that the defendant wrongfully and unlawfully induced the breach of contract, there was no allegation that the defendant acted maliciously and no particulars were given.

3. To that extent the plaint was deficient but that deficiency could and should have been cured by an amendment.

4. The procedure for striking out pleadings under Order 6 rule 13 of the Civil Procedure Rules does not exclude other means for instance by way of the preliminary objections, as long as the point raised is purely one of law.

5. Under Order 6 rule 13 the judge has discretion on whether to order a pleading to be struck out or amended.

6. In ordering the plaint struck out in a situation where the party whose pleadings was subject of scrutiny was unrepresented and on the application by an advocate of great experience, the judge clearly exercised his discretion wrongly.

Appeal allowed.

Cases

No cases referred to.

Texts

Jacob, IH et al (1975) Bullen & Leake’s Precedents of Pleadings London: Sweet & Maxwell 12th Edn p 500

Statutes

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

2. Appellate Jurisdiction Act (cap 9) section 3(2)

Advocates

Mr O Kajwang for the Appellant.

Mr Lakha & Mr Owino for the Respondent.