Khalid Salim Ahmed Balala v Republic

High Court, at Mombasa December 4, 1992

Omolo J

Criminal Application No 153 of 1992

Criminal Practice and Procedure – Transfer of cases – where the accused is charged at a different place from where the offence occurred – where his advocates, relatives and sympathizers would be inconvienced in attending – whether the reasons are sufficient for a transfer to be ordered.

Fundamental Rights and Freedoms – rights of an accused person – where an accused person is charged with an offence in a different jurisdiction from where the offence arose – where his counsel will be under great inconvenience to consult with the accused – whether such action is a violation of the accused person constitutional right to be afforded the opportunity to adequately prepare his defence.

Fundamental Rights and Freedoms – conduct of criminal trial – where an accused is charged in a different jurisdiction – where his sympathisers and relatives cannot attend the proceedings – whether such action amounts to violation of the constitutional right for a trial to be conducted in public.

The applicant by a Notice of Motion dated 29th September, 1992 filed under section 81 of the Criminal Procedure Code applied to Court for an order that the criminal case known as Voi SRMCC Case No 871 of 1991 Republic v Khalid Salim Ahmed Balala be transferred from Voi Court to the Mombasa Chief Magistrate Court. It was argued for the applicant that the offence charged against him arose in Mombasa where his counsel, prosecution witnesses, and the relatives of the applicant resided, who would find it inconvenient and expensive to travel. The respondent argued that the charge in Voi was due to the fact that a trial in Mombasa posed security concerns. The applicant had been charged with the offence of treason contrary to section 40(1) (a) (b) (3) of the Penal Code.

Held:

1. It is obvious that the mere physical distance between the place where the applicant is held and the place of abode of his counsel must hamper or impede the applicant in the preparation of his defence. Since the applicant is held at Manyani prison while his counsel resides in Mombasa a distance of approximately 160Km.

2. Unless the parties to a dispute themselves wish it, or unless the Court orders to the contrary, all criminal trials are to be held in open Court.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 40(1)(a),(b),(3)

2. Criminal Procedure Code (cap 75) sections 77, 81(1)(b),(d),(e)

3. Constitution of Kenya sections 77(2)(c), 10

Advocates

Mr Taib for the Applicant

Habib Bank Limited v Mohamed Shariff Hassan

High Court, at Mombasa November 2, 1992

Wambilyangah J

Civil Case No 368 of 1992

Civil Practice and Procedure - summary judgment - where one can get an overdraft from the Bank and its not in dispute that such money has to be repaid - where one portrays himself as an independent customer of the bank - whether this is a sufficient case for entry of summary judgment.

The plaintiff claimed from the defendant a certain sum of money alleged to be the debit balance of the amount due and owing by the defendant to the plaintiff as at 16th April, 1992. This is alleged to be in respect of the bank loan or an overdraft reflected on the defendant’s account with the plantiff. It was entered on behalf of the defendant that he has never had any business or resources of his own to enable him operate this account. That the account in question was opened at the instance of and that it was operated for the benefit of his father, one Sharriff Hassan Alwi. The defendant further admitted that he drew the cheques but went on to say that that was done likewise for the benefit of his father or his father’s business.

Held:

1. The customer/bank relationship is of a contractual nature so that a customer would be someone who has an account with a bank and has agreed to be bound by the Bank’s rules of conduct of such accounts.

2. The mere right of a defendant to be indemnified by or to have a claim against a third party in respect of defendants liability to the plaintiff or to recover from the plaintiff by way of a counterclaim a sum of money which does not readily reduce the liability of the defendant to the plaintiff, does not entitle the defendant to prevent the plaintiff from obtaining a summary judgment.

Application allowed

Cases

Zola v Ralli Brothers Ltd [1969] EA 691

Texts

Hailsham, Lord et al (Eds) (1973) Halsbury’s Laws of England London: Butterworths & Co Ltd 4th Edn Vol III para 40

Statutes

No statutes referred.

Advocates

Mr Amolo for the Defendant.

Agricultural Development Corporation v Container Freighters Co Ltd

High Court, at Mombasa September 9, 1992

Omolo J

Civil Case No 649 of 1991

Affidavit – competence to depone to affidavits – whether advocates are competent to depone to disputed matters of fact.

Civil Practice and Procedure – summary judgment – application for – where the supporting and replying affidavits are sworn by advocates – whether advocates are competent to depone to such affidavits.

Civil Practice and Procedure – summary judgment – application for – where the defendant has filed a defence with a counter-claim – whether a counter-claim constitutes a triable issue – whether raising a counterclaim constitutes a defence to a plaintiff’s claim.

The plaintiff is the registered owner of premises known as Mombasa/Block 1/31. On the 21.10.88, the plaintiff by a written agreement leased those premises to the defendant for a period of three years. The plaintiff served a notice on the defendant to vacate the premises and filed suit and applied for summary judgment for the rent arrears. The defendant in its replying affidavit denied the prayer for judgment and argued that its defence had triable issues and had raised a counter claim against the plaintiff. The plaintiff’s motion was supported by an affidavit sworn by his advocate and the defendant’s advocate swore a replying affidavit.

Held:

1. It is clear from the provisions of rule 1(2) of order XXXV of the Civil Procedure Rules that an affidavit in support of a motion ought to be sworn either by the plaintiff or some other person who can swear positively to the facts verifying the cause of action and any amount claimed.

2. An advocate for the plaintiff would normally not have personal knowledge of the matters in dispute. Advocates normally act on instructions and it is doubtful whether most of them would be ready to swear as to the truth or otherwise of such instructions. Hence, in appropriate cases the court will not hesistate to strike

3. An allegation that premises were defective and that there was a reasonable claim for damages raised a triable issue; as to a claim for damages, however this does not provide a defence by way of equitable set-off to the claim for rent; it provides a basis for a counterclaim or a separate action.

4. The existence of a set-off or counter claim is sufficient to entitle a party to defend within the meaning of order 35 rule 2.

5. A reasonable or valid counter-claim constitutes a triable issue, but that alone is no sufficient defence to a plaintiff’s claim. Where appropriate, judgment can always be entered for the plaintiff and at the same time a stay of the same is ordered to enable the defendant pursue the counter-claim.

Cases

1. Camille, Elizabeth Edmea v Merali, Amin Mohamed [1966] EA 411

2. Mwanthi v Imanene [1982] KLR 323; [1982-88] 1 KAR 28

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VIII; order XII rule 6; order XXXV rules 1(2), 2, 3

2. Civil Procedure Act (cap 21) section 6

3. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) sections 4(2); 6(1); 9(3); 10

Advocates

Mr Congo for the Plaintiff.

Mr Chebukati for the Defendant.

Mansukhal Bhoja Shah v Salmin Mohamed Yuman & another

High Court, at Mombasa September 2, 1992

Omolo J

Civil Case No 413 of 1990

Civil Practice and Procedure - damages - assessment of damages by Court - need for paty claiming special damages to prove such claim.

Interest - assessment - assessment of interest on value of a lost item ie motor vehicle through accident where liability has been proved against the defendant.

The plaintiff who trades under the firm name of Amalgamated Agencies EA owned a motor vehicle Reg No KXM 342 an Isuzu lorry which was involved in an accidemt with the defendant’s vehicle.

The plaintiff thus sued the defendant for damages occassioned to his vehicle as a result of the said accicent. After trial, the Court found the defendant liable and entered judgment against him. The plaintiff claims special damages for the value of the vehicle at the time of the accident plus interest on the value of the vehicle from the time of the accident to the date when the suit was filed.

Held:

1. The plaintiff’s claim of towing charges and fee paid for police abstract were not proved hence fails.

2. Interest on the assessed value of the lost item is recoverable from the date when the loss occured.

Cases

Savannah Travel & Tours Ltd v Highways Ltd & another [1976-80] 1 KLR 49

Statutes

1. Traffic Act (cap 403) section 49(1)

2. Penal Code (cap 63) section 35(1)

Advocates

Mr Pandya for the Plaintiff

Mr Musinga for the Defendants