Samat Bhima Keswala v Republic

High Court, at Eldoret November 12, 1992

Aganyanya J

Criminal Appeal No 30 of 1992

(From Original Conviction and Sentence in Criminal Case No 5339 of 1990 of the Principal Magistrate’s Court at Eldoret - J Ondieki (Mrs), R M)

Criminal Law – obtaining by false pretences contrary to section 316(a) of the Penal Code – ingredients of the offence which have to be proved – consideration of section 316(a) of the Penal Code.

Criminal Law – obtaining by false pretences – definition of the term obtaining by credit – where the repayment of the liability is by a third party – whether the ingredient of the offence is established.

Criminal Law – obtaining by false pretences – where a person incurs a debt when his confidence to repay rested in a third party – whether such a person is guilty of obtaining by false pretences.

Criminal Law – obtaining by false pretences – procedure as to how the offence should be charged – consideration by Court.

The appellant was charged with the offence of obtaining credit by false pretences contrary to section 316(a) of the Penal Code. It was alleged that he incurred a debt or liability from a trader by obtaining motor vehicle tyres valued at Shs 40,200/- by pretending that he was buying them and that he would pay him cash on the following day, facts which he knew or believed to be false.

He issued postdated cheques which bounced, and later made a cash payment to partly settle the total sum owing. The appellant argued on his defence the items were provided to New Mumias Supermarket Ltd. He was convicted and sentenced to 12 months imprisonment, hence he appealed.

Held:

1. The offence of obtaining by false pretences has seven possible ingredients which have to be proved beyond doubt before an accused person is convicted. They are (a) a false representation (b) which is made (c) by words or writing or conduct (d) of a matter of fact (e) either past or present (f) with knowledge of the falsehood or without belief that the presentation is true, and (g) the representation causing the giver to part with the thing obtained.

2. The word obtaining credit refers to the obtaining of credit in connection with a debt or liability which will be liquidated by a payment or repayment in money only and this must be by the accused person himself. Where therefore the repayment is by a third party, then that ingredient does not lie for a decision.

3. If the credit is obtained by a false pretence then it must be a pretence about an existing fact which is false. Therefore a person personally incurring a debt by false pretences could not have arisen because his confidence rested in the third party.

4. In this class of case, evidence need to be adduced to show that an inquiry was made to establish that the accused had known that he had no sufficient funds to meet the cheque or that he had no intention to pay.

5. The offence under section 316 (a) is in two limbs; firstly incurring a debt or obtaining credit by false pretences and secondly obtaining such credit by means of any other fraud. It is desirable to charge an accused person with two counts, namely: of obtaining credit by false pretences and of obtaining credit by means of any other fraud; otherwise the accused person may be confused and not know exactly with what offence he is charged.

Appeal allowed.

Cases

1. Bennalt Oinamo v The Republic [1976-80]1 KLR 196

2. Amugo v Republic High Court Criminal Appeal No 32 of 1980

3. R v Jones [1898] 1 QB 119

4. Broderip v Solomon [1895] Ch 323

5. R v Homes (1958) CR LR 394

Statutes

Penal Code (cap 63) section 316(a)

Advocates

Onyinkwa for the Appellant

Kabitu for the Respondent

Uasin Gishu Weekly Advertiser Ltd v Abdul Aziz Kanji & 2 others

High Court, at Eldoret October 9, 1992

Aganyanya J

Civil Case No 33 of 1990

Civil Practice and Procedure – consent order – whether appellable once entered into – section 67(2) Civil Procedure Act.

Civil Practice and Procedure – decree – whether it is possible to strike out a decree drawn without going into the merits of the judgment.

The applicant sued the respondent seeking several reliefs which included an order for accounts of the business and profits made and damages.

The parties to the suit however entered into a consent in which they agreed that monies awed to the 1st respondent be proved within one month. It was not clear to the Court what happened thereafter but counsel for the respondent drew up a decree for execution in terms of the consent order.

Counsel for the applicant argued that 1st and 2nd respondents filed a decree for execution based on the consent order which required the respondents to prove their debts within one month of the signing of the agreement which the respondents had not done. According to the applicant therefore the respondents were not supposed to execute the decree.

Counsel for the respondents argued that under order 20 and 21 of the Civil Procedure Code once a consent order was filed in Court it became a judgement of the Court and that such consent could not be challenged.

It was further argued that since the decree is part of the judgment one would not urge striking out without going with the merits of the judgment.

Held:

1. Under section 67(2) of the Civil Procedure Act once parties have entered into the judgment by consent the same is not appellable and can only be set aside on grounds which would necessitate setting aside a contract.

2. To strike out a decree which has been drawn without going into the merits of the judgment seems to be an act not covered by the Civil Procedure Rules.

Application dismissed.

Cases

1. Hirani v Kassam (1952) 19 EACA 131

2. Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266

3. Mawji v Arusha General Store [1970] EA 137

Texts

Seaman, O (1912) Seton’s Judgments and Orders London: Stevens and Sons 7th Ed, Vol 1, page 124

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) orders XX, XXI, XLIV

2. Civil Procedure Act (cap 21) section 67(2)

Advocates

Kimaru for Applicant

Kamau for Respondents

Sofia Mohamed v Rodah Sitienei

High Court, at Eldoret October 9, 1992

Aganyanya J

Civil Appeal No 4 of 1991

(From the Original Civil Suit Tribunal 14 of 1990)

Civil Practice and Procedure - consent jugment - where it’s alleged that the advocate had no instructions to enter consent - whether the reason is sufficient to set aside a consent judgment.

Civil Practice and Procedure - consent judgment - setting aside a consent judgment - circumstances under which consent orders can be set aside - consideration by Court.

Advocate – advocate/client relationship - instructions to an advocate – where an advocate has been instructed by a client in a litigation matter – whether the advocate can compromise the suit without express instructions from client.

The appellant filed an application by Chamber Summons praying that orders made on 28th May 1990 by consent of both counsel be set aside, which application was dismissed. On appeal, it was submitted for the appellant that the counsel who appeared for the appellant at the Tribunal had no authority or consent to record or make orders dated 28th May 1990. It was submitted that an advocate is only an agent of the client and where he intends to compromise a matter on behalf of his client he should seek and obtain the client’s express interest. The respondent submitted the appeal had no merit.

Held:

1. An advocate who appears for a client is presumed to be properly instructed by such client unless the contrary is proved.

2. Section 67(2) of the Civil Procedure Act provides that no appeal shall lie from a decree passed with the consent of the parties.

3. A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside or if certain conditions remain to be fulfilled, which are not carried out.

4. A solicitor or counsel would ordinarily have ostensible authority to compromise a suit so far as the opponent is concerned.

5. (Obiter) A consent judgment could be challenged either in the suit itself or by an application for review under the order relating to that procedure.

Appeal dismissed.

Cases

1. Mwakio, James Mwashori v Kenya Commercial Bank Ltd Civil Appeals Nos 28 of 1982 and 69 of 1983

2. Purcell v FC Trigell Ltd (trading as Southern Window and General Cleaning Co) [1970] 3 All ER 671; [1971] 1 QB 358; [1970] 3 WLR 884

3. Hirani v Kassam (1952) 19 EACA 131

4. Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266

5. Wasike v Wamboko [1988] KLR 429; [1982 - 88] 1 KAR 625

6. Waugh & others v H B Clifford and Sons Ltd [1982] 1 All ER 1095; (1981) 126 Sol Jo 66

Statutes

1. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) section 12(1)(i)

2. Civil Procedure Act (cap 21) section 67(2)

3. Civil Procedure Rules (cap 21 Sub Leg)

Advocates

Machio for the Appellant

Mr Njuguna for the Respondent

Gabriel Ndungu Kinuthia v George W Waweru

High Court, at Eldoret May 19, 1992

Aganyanya J

Civil Case No 61 of 1991

Civil Practice and Procedure – admission – judgment on admission – whether the word “otherwise” contained in order XII rule 6 of the Civil Procedure Rules includes admission by a person not party to a suit – order XII rule 6 Civil Procedure Rules.

Insurance Law – discharge voucher – plaintiff signing a discharge voucher in favour of an insurance company – whether signing gives right of action against an insurance company in action where the insurance company is not a party.

The plaintiff/applicant sued the respondent seeking compensation for injuries arising out of an accident which he claimed was a result of the respondent’s negligence.

Though the respondent filed a defence denying liability for the accident, the parties’ advocates entered into negotiations in which the defendant’s/respondent’s insurer agreed to settle the claim at Kshs 67,900 and accordingly issued a discharge of indemnity voucher which was duly executed by the applicant in favour of the insurance company.

The insurance company however did not pay the agreed sum prompting the applicant to bring an application for judgment on admission without first joining the insurance company as a party to the suit.

Held:

1. The word “otherwise” in order XII rule 6 of the Civil Procedure Rules does not include an admission by a party other than the party to the suit.

2. The fact that a discharge voucher was signed in favour of the insurance company did not make that insurance company a party to the suit.

Application dismissed.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XII rule 6

Advocates

Njuguna for the Plaintiff/Applicant.

Warorua for Mbugua for the Defendant/Respondent.

Kibiwot Cheruiyot & another v Cheptoo Kobot Cheturuta

High Court, at Eldoret May 15, 1992

Aganyanya J

Civil Appeal No 32 of 1990

(From the Original Civil Suit No 30 of 1988 of Resident Magistrate’s Court  at Kapsabet – P M Mutani SRM)

Advocate - advocate/client relationship - advocate acting for a client has full authority to do so - failure to carry out instructions is actionable against advocate.

Advocate - advocate/client relationship- advocate duly served to attend court for the reading and confirmation of an award - advocate failing to attend - whether court can set aside the award on an application by the advocate’s client.

The appellant who was one of the disputants over a parcel of land appointed an advocate to file a suit in Court challenging the respondent’s title over the said land.

Both parties eventually agreed that the matter be arbitrated upon by the District Officer. The District Officer after listening to the dispute filed his report in Court and the Court duly notified the parties of the date for the reading of the report. The appellant nor his counsel appeared on the appointed date. Counsel for the respondent asked for the reading of the award since counsel for the appellant had been duly served. The Court read the award and allowed thirty days for filing any objection of the award and served the appellant’s advocate with the notice for the date of confirmation but the counsel for the appellant once again did not attend and the award was thus confirmed.

The appellant’s counsel consequently appealed arguing the appellant was not properly served to appear in Court for the reading of the award in that her advocate was never granted ample time to contact her for reading of the award.

Held:

1. In law, an advocate with instructions to act for his client has due authority to act as an agent in the matter and if the agent fails to carry out his principal’s authority then the principal has to turn to the agent for remedy.

2. In this case counsel for the appellants were wholly to blame by failing to appear for the reading of the award and confirmation thereof after they were duly served and have to bear the blame for the mishap that has befallen the appellants.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order IXB rule 8; order XLIV rule 1

Advocates

Mr Chebii for the Appellants.

Mr Onyingwa for the Respondents.

Kurui & 2 others v Cherop

High Court, at Eldoret March 6, 1992

Walekhwa J

Civil Case No 20 of 1991

Adverse possession – change of title - where a change of title by virtue of succession occurs- whether the time of limitation begins to run afresh.

Adverse possession – proof of possession- where it is alleged that the claimant has been cultivating the land- evidence of cultivation must be definite as to the area and time.

The plaintiffs filed a case seeking eviction against the defendant. They alleged that they were heirs to the said parcel of land Elgeyo Border SFT plot No 281 which they inherited from their late father to which they had already been issued with a title deed. The defendant averred that he bought the plot in the year 1963 from the father of the plaintiffs and had been in occupation since 1963 and had acquired adverse possession on it.

The plaintiffs in their evidence stated that upon making inquiries at the settlement office, they found that the loan had not been paid and so they paid off the loan. The defendant maintained that he purchased the property but the property was not transferred to him and had been cultivating it from the year 1963.

Held:

1. In adverse possession claims, it is a general rule that the period starts running afresh whenever there are changes in the title.

2. Where cultivation of land is advanced to support the claim to adverse possession the evidence of the cultivation must be definite as to the area and time.

Judgment for the Plaintiffs.

Cases

1. Kimani Ruchine & another v Swift, Rutherford & Co Ltd & another [1976-80]1 KLR 1500

2. Sospeter Wanyoike v Waithaka Kahiri [1976-80] 1 KLR 381

Statutes

No statutes referred.

Hassan Kipkemboi Ngeny v Thabiti Finance Co

High Court, at Eldoret February 26, 1992

Walekhwa J

Civil Case No 172 of 1991

Injunction - application for temporary injunction-whether the Court can exercise discretion and grant such an injunction even when the applicant does not meet the four requirements governing such a relief.

The applicant moved to Court by way of chamber summons seeking a temporary injunction to restrain the defendants from selling suit premise until the case was heard. The indebtness of the applicant was not denied but it was his contention that he is paying the loan regularly and that the entire family relied on the suit land for their livelihood so much so that if it was sold, the entire family was going to suffer irreparable harm. The respondent stated that the applicant does not deny indebtedness but was employing delaying tactics in trying to deny the respondent the fruits of its judgement. It was the respondent’s further contention that the applicant was given a chance in 1988 to liquidated the debt, but he failed to do so.

Held:

1. From the record it is clear that the applicant’s indebtness is not denied and its further clear that instalments are not being paid and so the plaintiff’s chances of succeeding in the case are nill.

2. It is upon the applicant to try and save the suit premises from being held because it is true that he will suffer irreparable harm, but that should not be used as a case to deny the respondent the fruits of his judgement.

3. The amount claimed is large, but in view of the fact that no effort was made to liquidate the same, then no damages can arrive in such situation except where property may be sold for a lesser value than its market price.

4. Despite the fact that the applicant doesn’t fall within the principles governing the issuance of injunction the Court has the onus to exercise its discretion in the best interests.

Temporary injunction issued.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Machio for the Plaintiff/Applicant