Catherine Muthoni Kagau v Kenya Catholic Secretariat

High Court, at Nairobi

December 13, 1995

Etyang, J

Civil Case No 677 of 1988

Employment – wrongful dismissal – where one is dismissed from employment on basis of condition which was not disclosed when entering into the contract – whether this qualifies as condition precedent – whether general damages should be awarded in a case of wrongful dismissal.

SUMMARY OF FACTS

The plaintiff, Catherine Muthoni Kagau, filed a case against defendant for breach of contract of service and claimed a liquidated sum of Kshs. 134,630/= plus general damages, and costs of the suit.

The plaintiff’s case is to the effect on 1.4.1986 she entered into a 3 year contract of service with the defendant as a secretary. She attested that at the time she entered into the said contract she had already been married under Kikuyu Customary Law. After working for awhile she requested for leave which was approved and was later told to rectify her marriage during her leave and be able to produce a marriage certificate on resumption. She stated that this however was not one of the conditions during her employment. On resumption she had not rectified her marriage whereupon she was dismissed from employment for gross misconduct.

The defendant’s case was to the effect that the plaintiff was guilty of gross misconduct under clause 5 (iii) and 10 (a) of her contract of service for failing to convert her marriage hence she is alleged to have disobeyed lawful and proper orders from her employer.

HELD

1. The condition was not a condition precedent since it had not been disclosed to the plaintiff at the time of entering into that contract of service.
2. Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered arising naturally.
3. Six months salary and house allowance awarded as general damages.

Judgment for the plaintiff

Deva Samat Keshwala & 10 others v Tolk Investments (K) Ltd & United Nations Food Programme

High Court, at Nairobi December 11, 1995

Githinji J

Civil Case No 2213 of 1991

Immunity – from proceedings – immunity of United Nations – whether United Nations is immune from suits and other legal process in Kenya.

This was an application by the second defendant asking the Court to review its dismissal order on the ground that the order contained errors of law apparent on the face of record.

The dismissed application sought an order that the name of the second defendant be struck out and that the suit against the second defendant be dismissed with costs on the ground that the second defendant was immune from the jurisdiction of court under the Privileges and Immunities Act, Cap 179. The thrust of the argument by counsel of 2nd defendant was that the law in which the Court relied on earlier did not qualify or derogate from rights given by statute.

Held:

1. United Nations enjoys immunity from suit and legal process in this country.

2. There is a clear error of law apparent on the face of the ruling, and that error had on the application of the law on state immunity (restructive doctrine) to diplomatic immunity.

Application allowed.

Cases

1. Irendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529; [1977] 1 All ER 881; [1977] 2 WLR 356

2. Ministry of Defence of the Government of United Kingdom v Ndegwa [1983] KLR 68; [1982 - 88] 1 KAR

Statutes

1. Privileges and Immunities Act (cap 179) sections 9, 12

2. Diplomatic Privileges (United Nations and International Court of Justice) Order (cap 179 Sub Leg)

3. State Immunity Act, 1978 [UK]

Advocates

Mr Le Pelley for the 2nd Defendant

Isaac Mauti Atemba v Republic

High Court, at Kisii

December 11, 1995

Mbito, J

Criminal Appeal No 356 of 1995

Evidence - Standard of proof - evidence in criminal cases - assault causing actual bodily harm - where sequence of events create doubt in mind of court - whether the case can be said to have been proved to required standard.

SUMMARY OF FACTS

The appellant in this case was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code. He was found guilty and sentenced to 1 year imprisonment hence his appeal.

Prosecution case was to the effect that the complainant was going home when he was attacked by appellant who is his brother. He is alleged to have cut him while the two other brothers who accompanied the complainant ran away.

The incident is said to have taken place on 23^rd March, 1994. When witness was called he said that the date was the 26^th March, 1994. The complainant is said to have said he was attacked on 23^rd March, 1994 and not 26^th March, 1994 as stated by his only witness and as per charge sheet and medical report.

The defendant denied having any dispute on 23^rd March, 1994 with the complainant nor was he aware of any dispute between him and complainant.

HELD

1. The discrepancy in the evidence of events created some doubt in the mind of the court.
2. The evidence fell short of satisfying that the appellant could have suddenly attacked his brother without provocation at all.
3. The gaps left in the sequence of events would suggest a frame up which could easily arise as the complainant believed that he had a dispute with the appellant

Appeal Allowed.

M M v D C J & V N K

High Court, at Mombasa

December 7, 1995

Ringera, J A

Civil Suit No 853 of 1995

Injunction - interlocutory injunction – application for – grounds for granting an injunction – where one has not made out grounds for grant of injunction – whether injunction should issue.

Summary of The Facts

M M, the plaintiff, sought interlocutory injunction to restrain Darious Chika Jumwa, from contracting a marriage under the Marriage Act, or the African Christian Marriage & Divorce Act with the 2^nd defendant.

Here case is that she was the lawful wife of the 1^st defendant  under Taita Customary Law and therefore that the intended marriage  between the defendants was unlawful, illegal and void as being contrary to the provisions of the Marriage Act.

The 1^st defendant however vigorously opposed the application, denying that there subsited a valid Taita Customary Law Marriage  between himself and the plaintiff. He contended that any marriage that may have subsisted between himself and the plaintiff stood dissolved.

HELD

1. An interlocutory injunction is granted in order that the risk of a serious prejudice to the Applicant’s legal rights between the time of the application and the time of trial may be forestalled.
2. An interlocutory injunction cannot issue in as the applicant has not made out a prima facie case with a probability of success.

3. Equity does not aid the indolent.

Application dismissed

David Kinyua Njiri v Peris Wanja Kinyua

High Court, at Nairobi December 1, 1995

Mwera J

Civil Appeal No 187 of 1990

Marriage - customary marriage – Kikuyu customary marriage – where there is evidence of payment of dowry – whether this is evidence of marriage – whether failure to perform ‘ngurario’ rite an indication that marriage has not been fully celebrated.

The respondent filed a suit for declaration that she had been married to the appellant for 6 years and that she was entitled to maintenance. The Court established this fact and ordered that she was entitled to Shs 1500 per month from the appellant for maintenance.

The appellant challenged this fact stating that the lower court was wrong in finding that he and the respondent were married, and further that an amount of Shs 1500 was without considering the financial means of the appellant.

Held:

1. There is evidence of payment of dowry which was accepted by the respondent’s side.

2. A full celebration including performing the ‘ngurario’ rite is not all that is to Kikuyu Customary Marriage, since the right has no time limit.

3. It was incumbent upon the appellant to show the learned trial magistrate that it could be hardship on him to pay the respondent Shs 1500.

Appeal dismissed.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Mr Kanyi for the Appellant

Ms Karua for the Respondent

Carton Manufacturers Ltd v Moses Bosire

High Court, at Nairobi November 30, 1995

Mwera J

Civil Appeal No 376 of 1992

Employment – loss of employment – where one is wrongfully dismissed – whether one entitled to salary in lieu of notice.

Damages – general damages – whether general damages can issue for loss and damage suffered due to wrongful dismissal.

The respondent sued the appellant for summarily terminating his services on 27.5.1990. The learned trial magistrate found for the respondent, and ordered that he gets 2 months salary in lieu of notice to terminate his services. He was also given 21 days salary in the month of April. The appellant was dissatisfied, hence this appeal.

The respondent had been suspected of theft from his employer. He was arrested in presence of a director of appellant. It’s alleged that when he came to duty after release on bond, he was told to keep away till the case was finalised, but was not taken back on finality of the case.

Counsel for appellant argued appeal on 3 grounds covering awards made to respondent, which was 2 months salary in lieu of notice, and Shs 30000 as general damages.

The respondent maintained that the judgment was proper and he even added on cross- appeal that general damages should be increased.

Held:

1. The respondent was wrongfully dismissed.

2. The lower court was wrong in finding that the notice to terminate respondent’s employment was two months.

3. The respondent was entitled to a month’s salary in lieu of notice.

4. No general damages issue in cases of this type for loss and damage suffered is to the extent of wages for period of notice.

Appeal allowed in part.

Cases

1. Gailey & Roberts Ltd v Ombanya [1974] EA 522

2. Nyaga v Air Zaire [1990] LWR 65

3. Waibi v Railways & Harbours [1971] EA 235

Statutes

Employment Act (cap 226) sections 14(5)(iii); 17(g)

Charles Kahindi Nzai v Republic

High Court, at Mombasa

November 30, 1995

 Oguk, J

Criminal Appeal No 36 of 1995

Evidence  - circumstantial evidence – where evidence points to guilt of accused – whether it can sustain conviction.

Summary of The Facts

The appellant was tried and convicted of the offence of shop-breaking and stealing contrary to section 306 (a) of the Penal Code. He was sentenced to serve 2 years imprisonment  and ordered to receive 8 strokes of Corporal punishment. The prosecution case was to the effect that the appellant was at work as a security guard on the night of 18.6.1994 when the supervisor, Nicolas Wambua found him on duty about midnight and that everything was in order. At about 4 am, police received report that the ship in which appellant was guarding had been broken into and he (the appellant ) was not at work.

The appellant stated that he reported to work and taken to another ground from CSS, who took after his duties and excused himself since he was sick. He stated the time to have been about 10 pm.

Held:

1. The conduct of the appellant and the circumstances in which the theft took place pointed to him to have been party to theft that took place.

Appeal denied.

C N K v R M K

High Court, at Nairobi

November 30, 1995

Mwera, J

Divorce Cause No 113 of 1995

Children – custody of – application of – by mother – where the matter is at an interlocutory stage – whether the court should determine this question at this stage.

Children – alimony and maintenance – where one prays for alimony and maintenance of herself and children – where no adequate evidence  has been presented before the court – whether the court should grant  this relief.

Summary of The Facts

The respondent in the petition, filed chamber summons seeking the custody of the 3 children of their marriage with petitioner, and further  seeking alimony and maintenance for herself and the children until the petition was determined. Further she prayed for injunction  to stop petition visiting matrimonial home, and that petitioner be allowed to release family car Reg. No KXQ to her for her use and children.

The petitioners case was to the effect that the Respondent had nowhere to take the children as she was staying with the sister. On the question of alimony and maintenance the counsel for the petitioner contented that the respondent had not filed any affidavits or documents relating to income for which alimony could be paid.

Held:

1. The matter was at an interlocutory stage and the cause is cautious that in making the ruling, it should not appear to be deterring the petition.
2. Alimony may not issue as no adequate evidence was before the court to determine it.

Chamber summons dismissed.

Kenindia Assurance Company Ltd v Bhai O M Al-Amin

High Court, at Mombasa

November 28, 1995

Ringera, J

Civil Suit No 235 of 1995

Civil Practice and Procedure – setting aside – application for setting aside ex parte judgment – whether the court ahs discretion to set aside ex parte judgment – how discretion should be exercised.

SUMMARY OF FACTS

The defendant ought to set aside ex parte judgment entered against him in default of appearance. He did not deny he was served with summons to enter appearance but failed to do so. His excuse for the default is that the Plaintiff’s Advocate also happened to be his own Advocate and furthers that he was told by the said advocate that no action could be taken against him.

The Plaintiff however opposed the application contending the advocate who is alleged to have misled the defendant had deponed that there was no communication between him and the Defendant until after the Defendant’s goods were attached in execution of the ex parte decree.

HELD

1. High Court has an unfettered discretion to set aside an ex parte judgment. Discretion must be exercised judicially in the best interests of even handed justice.
2. On material before the Court, the defendant does not have a good defence.

Application Dismissed.