[Ruling] Civil Practice and Procedure –court order-application for orders to have the respondent deposit the deficit owing on the fixed deposit together with interest thereon-where there was an order directing the parties to open a Joint Account in the names of the two firms of advocates with Barclays bank Limited –application on the ground that the defendant had delayed in opening the fixed deposit account and hence the amount fell short of the amount due-where the delay was due to the fault of the applicants- whether the application was merited-Order53 rule 6(a) Civil Procedure Rules and section 3 of the Civil Procedure Act

[Ruling] Civil Practice and Procedure –enlargement of time-application seeking enlargement of time within which to comply with the court’s order pending the hearing of the suit-where the defendants had threatened to exercise its statutory right of sale by advertising the property-where the plaintiff had breached the court order by not paying the amounts ordered on due dates--discretion of the court to enlarge time- whether the plaintiff was entitled to any further indulgence from the court –whether the interest of justice would be met if the orders were extended-

[Ruling]Civil Law-Injunction-an application for an injunction to restrain the defendants from exercising  their statutory right of sale under a charge made in its favor by the plaintiff pending the determination of the suit herein-where the applicant had granted a charge to the respondents over the suit premises on which the respondents now wished to exercise their rights of sale-where the respondent claimed that the applicant had breached the terms of the charge-guiding principles in such applications-where the respondent had proposed payment by installments but the applicant had failed to keep to the proposals –whether the applicant had satisfied the conditions for granting the orders sought

Civil Procedure-order-application that the Defendant do forthwith pay the anmount being the deficit owing on the fixed deposit together with interest thereon at 15% per annum-grounds that the defendant delayed in opening the fixed deposit account and that the amount falls short of the amount due-application opposed on the grounds that any delay in opening the account was caused by the defendant and or his advocates who had refused to comply with the requirements demanded by the Bank

[RULING] Company Law-winding-up-application for winding-up- application brought on the ground that the respondent company had been unable to pay its financial debts-where the application was unopposed- appointment of an interim liquidator power of the court to appoint-where there had been an official receiver who had been acting for close to 10 months-where the court  has no power to appoint a provisional liquidator other than the official receiver after an order for the winding up of a company has been made -whether the orders sought in the petition could be granted S.234 235 and 235of the companies Act

REPUBLIC OF KENYA

Provincial Construction Company Ltd & another v Attorney General

High Court, at Nairobi  
October 15, 1991

Mbito J

Civil Case No 165 of 1991

Contract – privity of contract - agency – third party cannot benefit from contract unless made by his agent – sub-contract – rights created by a sub-contract – whether such rights necessarily bind the principal.

Agency – principal and agent - how the relationship is created - one is deemed an agent if he acts for another or by operation of the law

The applicants contractors entered into a building contract with the government for the construction of certain facilities at Nyeri Provincial Hospital. Pursuant to the main contract the parties thereto were entitled to refer all disputes arising therefrom to arbitration. Acting in pursuance to the provisions of the main contract the contractors appointed a subcontractor and duly entered into a standard form contract with the same.

A dispute thereafter arose between the contractors and the sub-contractors and the respondent contended that the two were not entitled to bring that dispute to arbitration.

Held:

1. It is a cardinal principle of the applicable common law that a third party cannot benefit from a contract unless such a contract is for his benefit or was made on his behalf by his agent.

2. It is a cardinal principle of construction that in construing a document, it should be interpreted in accordance with the clear expression of the documents in question.

3. One is said to be an agent if he acts for another with the consent of that other. One can also be deemed to be an agent of another by operation of law or by an agreement.

4. The contractors (applicants) were entitled to appoint a sub-contractor who would definitely be deemed to be their agents and if a dispute arose as between the employer and the sub-contractor the contractors would be responsible for such actions, or would be entitled to make a claim arising from services performed on their behalf by such subcontractors.

5. The sub-contractor claim could therefore be referred to arbitration by the contractors one or jointly with the sub-contractors to avoid the necessity of third party proceedings.

6. Clause 20(f) of the main contract clarifies that a sub-contractor is an employee or agent of the contractor and not the employer. Consequently the government could not be responsible for actions of such nominated sub-contractor that the government could not pay for services rendered through such nominated sub-contractor.

7. Rights created by a sub-contract need not necessarily bind the employer unless the employer would have been bound if the act had been done by the contractor himself or if the employer can be said to have impliedly authorised or approved the specific actions upon which the claim under the sub-contract is founded more especially if the sub-contract was entered into at the instigation of the employer.

Application allowed.

Cases

Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] QB 644; [1984] 2 All ER 175; [1984] 2 WLR 676

Statutes

1. Arbitration Rules (cap 49 Sub Leg) rule 3

2. Arbitration Act (cap 49) section 22(a)

Advocates

Mr Le Pelley for the Applicants.

Mrs Manyasi for the Respondent.

[Ruling] – BANKRUPTCY LAW – bankruptcy petition – application to discharge the bankruptcy order given by the court – where the applicant claimed not have been given adequate notice of the petition – effect of – factors the court considers in such applications – validity of order - Bankruptcy Act section108; Bankruptcy Rules rule 144 and 147

Criminal law – causing death by dangerous driving – whether merely alleging high speed is sufficient - failure to call expert evidence to show that speed may have been implied by the length of the skid marks - whether charge proved beyond reasonable doubt.

Duncan Nderitu & 2 others t/a Trustees of African Club v John Harun

High Court, at Nairobi May 17, 1991

Githinji J

Civil Case No 3098 of 1990

Civil Practice and Procedure – summary judgment – against a tenant – whether a landlord may apply for summary judgment to recover rent from a tenant whose term has expired – order XXXV rule 1(1)(b) of the Civil Procedure Rules.

Civil Practice and Procedure – summary judgment - application for - where an applicant has set out facts to warrant grant of his prayers – the respondent has the onus of showing that his defence raises triable issues.

Civil Practice and Procedure – applications – where an application is made in chambers instead of court – whether such an application is fatal – power of the court under order L rule 11 of the Civil Procedure Rules.

Civil Practice and Procedure – pleadings – plaint – where allegations of fact are made in the plaint – whether such allegations are deemed to be admitted unless traversed in the defence – where the defence is a general denial – whether a general denial constitutes a sufficient traverse – provision of order VI rule 9(1) and (3) of Civil Procedure Rules.

Land – leases – unregistered leases under the Transfer of Property Act of India 1882 – effect of – provisions of section 106 and 116 of the Transfer of Property Act of India.

Land – land rates – rateable owner – definition of a rateable owner – provisions of sections 2 of the Rating Act cap 267 and section 7 of the Valuation for Rating Act cap 266.

Land – land rates – payment of rates – procedure where the rateable owner fails to pay rates after publications – circumstances under which a tenant can pay rates – whether payment of rates can create a tenancy.

Societies – deregistration of a society – where a society has allegedly been deregistered – where a receiver has not been appointed by the Minister – whether the registered trustees have a legal duty to deal with the property of the society.

The applicants applied for summary judgment against the respondent seeking for orders that the respondent hands over the premises known as LR 209/930 Monrovia Street, an injunction to restrain the respondent from interfering with the applicants enjoyment of the suit premises, an order that the respondent vacates the suit premises, damages and costs.

The applicants, trustees of a registered society stated that they had leased out premises to the respondent for a period of 3 years but a lease was not prepared and signed. The respondent failed to pay rent and the applicants demanded his vacation of the premises which he did but later returned to the premises. Furthermore, the respondent without the applicant’s knowledge purported to make payments of land rates to Nairobi City Commission.

The respondent denied that society was registered under the Societies Act. He acknowledged being let the premises but claimed that they were let the premises that were not in a habitable condition. He denied also having released the premises to the applicants and had paid all the rents and rates necessary.

Held:

1. Under order XXXV rule 1(1)(b) of the Civil Procedure Rules a landlord is at liberty to apply for summary judgment from a tenant whose term has expired.

2. The fact that the application is made in chambers instead of court is not fatal for order L rule 11 of the Civil Procedure Rules recognises that such an error can be made and empowers the Court to either adjourn it or hear it in chambers.

3. In an application for summary judgment, if the applicant has set out in his affidavit(s) in support of his motion and exhibits facts which are properly true and sufficient to warrant the granting of his prayer for summary judgment the respondent must discharge the onus on him if showing his defence(s) raises triable or bona fide issues.

4. Under section 106 and 116 of the Transfer of Property Act of India, a lease of business premises is in the absence of a contract or local usage deemed to be a lease from month to month terminable by a 15 days notice. If the lessee holds over after determination of the lease and lessor accepts rent or asserts to lesssee’s possession of the business, the lease is assumed to be a month to month tenant.

5. Allegations of fact made by the plaintiffs in the plaint are deemed to be admitted by the respondent unless he traverses them in his defence or affidavit and a general denial is not sufficient traverse under order VI rule 9(1) and (3) of the Civil Procedure Rules.

6. Under the Rating Act – cap 267 section 2 makes the rateable owner as the person liable to pay the rates. A rateable owner, under section 7 of the Valuation for Rating Act, cap 266 includes the owner of registered freehold or tenant for life in possession or in reversion, it also includes categories of lessees of property under a registered lease for periods ranging from 21 years to 25 years.

7. Before the occupier can be entitled to be served with a notice to pay the rent directly to the rating authority or indeed to pay the rates, he must be a tenant of the lessor. The mere payment for such rates does not create a tenancy unless the lessor consents.

8. Under section 15, 16 and 17 of the Rating Act, if the rateable owner fails to pay the rates after 30 days of publication, he can be given a notice of 14 days to pay and in default enforcement proceedings can be commenced against him. But if the rateable owner fails to pay the Rating Authority can serve the tenant with a notice to pay the rent direct to the Rating Authority until the arrears are duly paid.

9. As provided in section 38 of the Societies Act cap 108 after deregistration of a society the Minister responsible has a discretion either to appoint a receiver of the society or vest the properties of the society in the receiver; where there is no evidence that a receiver has been appointed and the suit premises vested in the receiver, the registered trustees of the immoveable property have a legal duty to recover the property and account it to the receiver when duly appointed.

Application allowed.

Cases

1. Hola G Holdings v Lavarini’s Restaurant Ltd & another Civil Appeal Nos 48 and 49 of 1980

2. Bachelor’s Bakery Ltd v Westlands Securities [1982] KLR 366

3. Gohil v Wamai [1983] KLR 489

Texts

Blundell, L A; Wellings, V G (1970) Woodfall Landlord and Tenant, London: Sweet & Maxwell 27th Edn Vol I p18 - 19 para 29 - 30

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 9(1), (3); 2(1), (2); order XXXV rule 1(1); (b); order XXXIX rules 2(1); (2); order L rule 11

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

3. Societies Act (cap 108) section 38

4. Government Lands Act (cap 280)

5. Registration of Titles Act (cap 281)

6. Rating Act (cap 267) sections 2, 15, 16, 17, 18(1); 20(1)

7. Indian Transfer of Property Act, 1882 sections 106, 107, 108(c), (g); 111(g); (h); 112; 116

8. Valuation for Rating Act (cap 266) section 7

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