[Ruling] – BANKRUPTCY LAW – discharge – application for discharge – where the creditors claim that their debts have not been fully realized effect of – factors the court considers in such applications – validity of order

Sharma v Handa t/a K A Handa Secondary Schools

Court of Appeal, at Nairobi December 19, 1994

Gicheru, Kwach & Cockar JJ A

Civil Appeal No 37 of 1991

(Appeal from a judgment of the High Court of Kenya at Meru  (Mr Justice Samuel Odhiambo Oguk) dated 26th November 1990,  in Civil Case No 42 of 1986)

Employment Law – appellant in employment for a period of two years – employer issuing no formal contract but proceeds to apply for work permit for the appellant stating in the application that he wished to employ the appellant – whether this amounts to evidence of employment – whether appellant entitled to salary for the period he remained unemployed.

The appellant who was an Indian national retired from his teaching job with the Government of Kenya upon attainment of the age of 55 years. The respondent however verbally agreed to employ him for another two years and also personally undertook to arrange for the necessary work permit. The respondent however later lost interest in obtaining the work permit for the appellant causing the appellant to make several trips to Nairobi to have his visitor’s permit renewed. Some time in January, 1986 the respondent verbally terminated his services and he then remained unemployed until August, 1986 when he secured another job. The appellant therefore commenced proceedings in the High Court seeking loss of salary for the period he remained unemployed together with house allowance and travelling expenses in connection with his work permit. The trial judge accepted evidence of the appellant and gave judgment for the December salary and house allowance for November and December and dismissed the rest of the claims. The appellant feeling aggrieved filed the instant appeal.

Held:

1. There is uncontroverted evidence of the appellant that his appointment as a teacher was for a period of 2 years in the first instance if the respondent obtained a work permit for him.

2. Having been appointed for a period of 2 years with no provision relating to termination of appointment, the position would be that the appointment would be considered as terminated at the expiry of 2 years.

3. Apart from the judgment sum awarded by the High Court the

appellant was also entitled to salary for the months he had remained unemployed.

Appeal allowed.

Cases

No cases referred to.

Statutes

Employment Act (cap 226) section 14(1)

Muviti v Republic

Court of Appeal, at Nairobi December 15, 1994

Cockar, Omolo & Tunoi JJ A

Criminal Appeal No 23 of 1992

(Appeal from a conviction and sentence of the High Court of Kenya  at Nairobi (Mr Justice Mango) dated 20th December, 1991 in  HCCC No 13 of 1988)

Criminal Practice and Procedure – charge and caution statement – investigating officer recording a statement from an accused person – whether statement admissible in evidence.

Criminal Practice and Procedure – extra-judicial statement – accused making a statement admitting the offence after long period in police custody – trial judge admitting statement without seeking explanation about the long period in custody – whether admission was procedural.

The appellant was tried and convicted by the High Court of the offence of murder and sentenced to death.

On appeal it was argued on her behalf that the learned trial judge misdirected himself by admitting an extra judicial statement by the appellant in which she admitted killing the deceased without seeking explanation from the prosecution over her long period in custody before making her statement.

It was further argued that it was improper for the investigating officer to be the same person to record her statement.

Held:

1. The fact that a statement had been recorded by an investigation officer in the case was, no doubt, a matter for the trial judge to consider in deciding whether or not to admit the statement in evidence, but the fact, in itself, does not automatically result in the exclusion of the statement from the evidence.

2. Where at the time of taking of plea there appears to be an unusual circumstance such as injury to the accused, or the accused is confused, or there has been inordinate delay in bringing the accused to Court from the date of arrest etc; then an explanation of the circumstances, must form an intergral part of the facts to be stated by the prosecution to the Court.

3. If the statement was taken sixteen or seventeen days after arrest, as happened in this case, then in seeking to prove the voluntary nature of the statement, the prosecution must prove that the length of the period for which the accused was in their custody had no effect on his making the statement.

4. The prosecution offered no explanation at all as to why they kept this appellant in their custody for so long before taking the two statements from her. On that basis, the judge ought to have excluded the statements.

Appeal allowed.

Cases

1. Bassan & Wathobia s/o Kiambu v R [1961] EA 521

2. Ndede v Republic [1991] KLR 567

Statutes

Penal Code (cap 63) section 203

Advocates

Mr Mbuthia for the Appellant

Miss Ndirangu for the State/Respondent

Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation & 2 others

Court of Appeal, at Nairobi December 15, 1994

Kwach, Cockar & Muli JJA

Civil Appeal No 59 of 1993

(An appeal from the ruling of the High Court of Kenya at Nairobi  (Mr Justice Akiwumi) dated 15th January, 1993 in  HCCC 6776 of 1992)

Civil Practice and Procedure - appeal – supplementary record – respondent including in a supplementary record of appeal documents and proceedings produced after the order appealed from was made – whether this amounted to adducing additional evidence – the purpose of the rule 85(1) (k).

The appellant raised a preliminary objection contending that the second and third respondents could not raise the grounds stated in the Notice of Grounds for Affirming Decision nor rely upon the Supplementary Record of Appeal.

Counsel for the appellant submitted that the documents which the said respondents sought to introduce did not form part of the record of the superior court when the trial judge made the order appealed from. It was his contention that the documents contained in the Supplementary Record although forming part of the superior courts file, came into existence after the order appealed from was made. To introduce them therefore, would amount to introducing additional evidence. The Supplementary Record of Appeal was filed under rule 89 (1) (k) of the Court of Appeal Rules which permitted the inclusion in the record of appeal of such other documents as may be necessary for the proper determination of the appeal.

Held: (with Muli J dissenting)

1. The documents in the Supplementary Record could not be called additional evidence because they did not exist at the time the application was heard and determined.

2. The matter contained in the Supplementary Record were matters which the Court was entitled to see and which had to be drawn to the attention of the Court and not concealed from it, if the Court was to do justice to both parties.

3. Rule 85(1)(k) of the Court of Appeal Rules was meant to provide for exceptional situations which litigants or appellants may face such as the one in this case.

Objection overruled.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 29, 85, 85(1); 85(1)(a) (b),

(c), (d), (e), (f), (g), (h), (i), (j), (k)); 89; 89(1)

Advocates

Mr Lakha for the Appellant

Mr Le Pelley for the 2nd & 3rd Respondents

Njoroge & another v Bhima

Court of Appeal, at Nairobi December 15, 1994

Cockar, Muli & Tunoi JJ A

Civil Appeal No 123 of 1986

(Appeal from judgment and decree of the High Court of Kenya  at Eldoret by the Honourable Mr Justice V V Patel dated  9th August, 1985 in Eldoret HCCC No 91 of 1979)

Civil Practice and Procedure – adjournment – whether and in what circumstances an appellate court can interfere with trial court’s decision on an adjournment motion.

Damages - general damages for personal injuries.

Negligence – sexual incapacity – whether Court can award damages in absence of claim for or evidence in support of such a loss.

The appellant appealed against the decision of the High Court awarding damages to the respondent on account of injuries sustained as a result of a road traffic accident.

During the trial in the High Court the appellant’s counsel called only one witness who was the turnboy of the appellant’s lorry and applied for adjournment in order to call a police witness to produce the file prepared in respect of the accident so that he could study the sketch plan and the statements of the witnesses in it. The respondent’s counsel successfully opposed the application for adjournment arguing that the hearing had been adjourned several times previously at the appellants’ request.

On appeal, counsel for the appellants took objection to the fact that the trial judge took judicial notice of sexual incapacity of the appellant and further that the judge prompted evidence of sexual incapacity from a witness. Counsel contended that this was neither pleaded nor proven.

Held:

1. The question of adjournment is a matter within the discretion of the judge of the court of trial and the manner of its exercise will not be interfered with if it appears to an appellate court that all necessary matters have been taken into consideration.

2. The exercise of the discretion should not defeat the rights of the parties altogether and should not do injustice to one or other of the parties. If it does so then the appellate court has power to review such an order.

3. In the instant case the appellants had caused not less than four adjournments some of which appeared to the learned judge to be frivolous and indeed meant to prejudice the expeditious disposal of the suit.

4. It was not pleaded and neither was any evidence adduced to prove that the respondent had ceased to enjoy normal sexual relationship with his wife. It was therefore manifestly wrong for the trial court to surmise that the respondent’s hip joint injury had reduced the frequency of sexual relationship.

Appeal partially allowed.

Cases

Patel v Gottfried (1953) 20 EACA 81

Statutes

No statutes referred.

Advocates

Mr Bowry for the Appellants

Municipal Council of Meru v Mariene

High Court, at Meru December 7, 1994

Ong’udi J

Civil Appeal No 96 of 1992

(From the original decision in Civil Suit No 264 of 1992 of the Resident Magistrate’s Court at Meru – JE Ashioya Esq RM)

Civil Practice and Procedure – setting aside summary judgment - application for–– where defence was not filed in time hence interlocutory judgment awarded – where no good reason is offered–– factors to be considered before setting aside interlocutory judgment – discretion – how the Court should exercise discretion.

The plaintiff sued the defendant claiming Shs 57,074/-. Service was effected to the appellant’s Town Clerk but no appearance or defence was filed, prompting interlocutory judgment to be entered for the respondent against the appellant.

When the matter came for formal proof, it was adjourned because the counsel for the appellants had filed an application seeking to set aside the ex parte judgment. The reasons he adduced was that the reason why defence was not filed in time was because of difficulties they encountered in trying to trace the file in time.

Held:

1. A Court on appeal will not interfere with the exercise of a discretion on an application for setting aside summary judgment unless the exercise was wrong in principle or the judge acted perversely on the facts, and that a mere denial is not sufficient defence.

2. The magistrate in the exercise of his discretion considered the issues before him meticulously. He enunciated correct principles and properly evaluated whatever material had been placed before him.

Appeal dismissed.

Cases

Mugunga General Stores v Pepco Distributors Ltd [1987] KLR 150; [1988 - 1992] 2 KAR 89

Statutes

No statutes referred.

..

Gichachi v Republic

High Court, at Nyeri December 7, 1994

Ang’awa J

Criminal Appeal No 387 of 1993

(From original conviction and sentence in Criminal  Case No 1332 of 1992 of SRM’s Court at Kerugoya)

Evidence – corroboration – sexual offences – uncorroborated evidence of complainant – how Court should treat such evidence – duty of trial court to warn itself before convicting on such evidence – failure of trial court to warn itself – effect of such failure.

Criminal Practice and Procedure – judgments – writing judgments – duty of Court to give reasons for decision reached in each count and its findings –failure of Court to do so – effect of such failure.

The 3 accused in this case were charged with offence of rape contrary to section 140 of the Penal Code and robbery contrary to section 290(1) of the Penal Code. They all pleaded not guilty. Trial was held and were all found guilty of rape and stealing (not robbery). Accused 1 was sentenced to 4 years imprisonment with 5 strokes of cane. Accused 2 committed to Youth Corrective Centre and accused 3 placed in probation for 3 years because they were minors. Accused 1 appealed.

The complainant alleged that the 3 raped her when they volunteered to take her home, and accused 1 and 3 searched her bag.

Counsel for accused raised points of technicalities, first, stating that the magistrate should have warned herself before convicting on evidence of a single witness, that identification was not sufficiently done and that medical evidence was not produced.

It appeared however that though accused 1 was convicted on both counts, he was not sentenced on count number 2.

Held:

1. Section 169 of the Criminal Procedure Code should be complied with in writing of judgments. There are two counts. A point to point decision should be reached in each count and its findings. Sentence should be for each count and the two may not be corroborated.

2. Warning by a trial magistrate must be given for relying on uncorroborated  evidence of a single witness.

3. The medical evidence is required to be adhered to strictly which was not done.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 140, 275, 296(1)

2. Criminal Procedure Code (cap 75) section 169