Catherine Muthoni Kagau V Kenya Catholic Secretariat [1995]eKLR
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Case Number: Civil Case 677 of 1988 |
Date Delivered: 13 Dec 1995 |
Judge: Alex George Aluri Etyang
Court: High Court at Nairobi (Milimani Law Courts)
Parties: Catherine Muthoni Kagau v Kenya Catholic Secretariat
Advocates:
Citation: Catherine Muthoni Kagau v Kenya Catholic Secretariat [1995]eKLR
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
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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.
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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.
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Six months salary and house allowance awarded as general damages.
Judgment for the plaintiff
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Deva Samat Keshwala & 10 Others V Tolk Investments (K) Ltd & Another [1995]eKLR
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Case Number: Civil Case 2213 of 1991 |
Date Delivered: 11 Dec 1995 |
Judge: Erastus Mwaniki Githinji
Court: High Court at Nairobi (Milimani Law Courts)
Parties: Deva Samat Keshwala & 10 others v Tolk Investments (K) Ltd & United Nations Food Programme
Advocates:
Citation: Deva Samat Keshwala & 10 others v Tolk Investments (K) Ltd & another [1995]eKLR
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
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Isaac Mauti Atemba V Republic [1995] EKLR
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Case Number: Criminal Appeal 356 of 1995 |
Date Delivered: 11 Dec 1995 |
Judge: Gideon P Mbito
Court: High Court at Kisii
Parties: Isaac Mauti Atemba v Republic
Advocates:
Citation: Isaac Mauti Atemba v Republic [1995] eKLR
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 23rd March, 1994. When witness was called he said that the date was the 26th March, 1994. The complainant is said to have said he was attacked on 23rd March, 1994 and not 26th March, 1994 as stated by his only witness and as per charge sheet and medical report.
The defendant denied having any dispute on 23rd March, 1994 with the complainant nor was he aware of any dispute between him and complainant.
HELD
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The discrepancy in the evidence of events created some doubt in the mind of the court.
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The evidence fell short of satisfying that the appellant could have suddenly attacked his brother without provocation at all.
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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.
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EMMANUEL ADIDI ANGUNE V REPUBLIC [1995]eKLR
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Case Number: crim app 947 of 93 |
Date Delivered: 10 Dec 1995 |
Judge: John Micheal Khamoni
Court: High Court at Nairobi (Milimani Law Courts)
Parties: EMMANUEL ADIDI ANGUNE vs REPUBLIC
Advocates:
Citation: EMMANUEL ADIDI ANGUNE v REPUBLIC [1995]eKLR
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M M V D C J & Another [1995] EKLR
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Case Number: Civil Suit 853 of 1995 |
Date Delivered: 07 Dec 1995 |
Judge: Aaron Gitonga Ringera
Court: High Court at Mombasa
Parties: M M v D C J & V N K
Advocates:
Citation: M M v D C J & another [1995] eKLR
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 2nd defendant.
Here case is that she was the lawful wife of the 1st 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 1st 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
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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.
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An interlocutory injunction cannot issue in as the applicant has not made out a prima facie case with a probability of success.
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Equity does not aid the indolent.
Application dismissed
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David Kinyua Njiri V Peris Wanja Kinyua [1995] EKLR
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Case Number: Civil Appeal 187 of 1990 |
Date Delivered: 01 Dec 1995 |
Judge: John Wycliffe Mwera
Court: High Court at Nairobi (Milimani Law Courts)
Parties: David Kinyua Njiri v Peris Wanja Kinyua
Advocates:
Citation: David Kinyua Njiri v Peris Wanja Kinyua [1995] eKLR
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
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Carton Manufacturers Ltd V Moses Bosire [1995]eKLR
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Case Number: Civil Appeal 376 of 1992 |
Date Delivered: 30 Nov 1995 |
Judge: John Wycliffe Mwera
Court: High Court at Nairobi (Milimani Law Courts)
Parties: Carton Manufacturers Ltd v Moses Bosire
Advocates:
Citation: Carton Manufacturers Ltd v Moses Bosire [1995]eKLR
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)
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Charles Kahindi Nzai V Republic [1995] EKLR
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Case Number: Criminal Appeal 36 of 1995 |
Date Delivered: 30 Nov 1995 |
Judge: Samwel Odhiambo Oguk
Court: High Court at Mombasa
Parties: Charles Kahindi Nzai v Republic
Advocates:
Citation: Charles Kahindi Nzai v Republic [1995] eKLR
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:
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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.
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C N K V R M K
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Case Number: Divorce Cause113 of 1995 |
Date Delivered: 30 Nov 1995 |
Judge: John Wycliffe Mwera
Court: High Court at Nairobi (Milimani Law Courts)
Parties: C N K v R M K
Advocates:
Citation: C N K v R M K
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:
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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.
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Alimony may not issue as no adequate evidence was before the court to determine it.
Chamber summons dismissed.
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Gurdial Singh & Another V Indian Spray Painters [1995] EKLR
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Case Number: Civil Appeal 254 of 1991 |
Date Delivered: 24 Nov 1995 |
Judge: John Wycliffe Mwera
Court: High Court at Nairobi (Milimani Law Courts)
Parties: Gurdial Singh & another v Indian Spray Painters
Advocates:
Citation: Gurdial Singh & another v Indian Spray Painters [1995] eKLR
Gurdial Singh v Indian Spray Painters
High Court, at Nairobi November 24, 1995
Mwera J
Civil Appeal No 254 of 1991
Landlord and Tenant – notice to quit – where landlord gives notice to tenant to quit but tenant files case at Business Premises Rents Tribunal for determination – landlord fails to present plans, maps, sketches to prove need of space – where landlord fails to show serious intention to terminate tenancy and use space for period of 1 year or more – whether notice to quit should be held legal.
The appellant, the landlord of the suit premises served a notice of termination of tenancy under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments ) Act (Cap 301). He wanted the respondent to vacate the premises in which the appellant also ran business so that the appellant could expand his business and operate thereat for a period of not less than 1 year.
The tenant however did not comply with the notice and instead filed a reference to the Business Premises Rent Tribunal in which the tribunal upheld the respondents (tenant’s) reasons in the reference for declining to comply with the notice to terminate tenancy.
Held:
1. It was incumbent upon the appellant to present in evidence plans, maps, sketches, local authority approvals etc to the Chairman of Business Premises Rent Tribunal to prove that actually more space was needed.
2. The appellant did not show a serious intentin to terminate the tenancy and take over the premises for his own business for a period of 1 year or more.
Appeal dismissed.
Cases
No cases referred to.
Statutes
Landlord and Tenant (Shops, Hotels and Catering Establishments Act (cap 301) sections 4(2); 7(1)(g)
Advocates
Mr Ngaira for the Appellants
Ms Janmohamed for the Respondent
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