Turfena Achieng’ buto & another v Mise t/a Ahero Total Service Station & another

Court of Appeal, at Kisumu December 1, 1995

Kwach, Akiwumi & Tunoi JJ A

Civil Appeal No 177 of 1995

(Appeal from a judgment of the High Court of Kenya at Kisumu

(Justice Kuloba) dated 16th March, 1995 in

HCCC No 198 of 1994)

Product Liability – vendor of paraffin – duty of care to those who buy paraffin.

Product liability – contaminated paraffin – whether purchaser of paraffin is under duty to ensure that paraffin is not contaminated.

Negligence – plea of res ipsa loquitor – circumstances in which the plea may be made.

The appellant in this case sued the respondents in the High Court seeking compensation for burns which they received as a result of explosion and subsequent catching of fire of paraffin which they bought from the 1st respondent’s petrol station supplied by the second respondent.

Evidence was lead to show that the paraffin in question had been bought from the 1st respondent’s petrol station and further that there had been complaints by other consumers of paraffin bought from the 1st respondent’s petrol station and supplied by the second had exploded prompting the police to shut down the 1st respondent’s station pending investigation.

The appellants in their claim relied on the principle of res ipsa loquitor which states that the fact that the accident took place the appellants must have been negligent in ensuring the paraffin they sold to the public was not contaminated.

The trial judge at the conclusion of the hearing and without any evidence that there was intervening acts which could have caused the contamination of the paraffin after buying it from the 1st respondents station, dismissed the suit hence the appeal.

Held:

1. In the context of rural life where the appellants live, paraffin is an article of common household use and known to all rural dwellers as a safe substance and there is thus, no special duty on the part of the appellants to take any special precautions in handling it.

2. The fact that the paraffin exploded and caught fire means that it was contaminated and the onus would be on the respondents to show that the contamination was not due to their negligence.

3. Where the circumstances of the accident give rise to the inference of negligence the defendant, in order to escape liability has to show that there was a probable cause of the accident which does not create negligence or that the explanation for the accident was consistent only with an absence of negligence.

4. The respondents who dealt in paraffin which is an article of common domestic use particularly in rural parts of Kenya, owed a duty of care to the consumer that what was sold as paraffin, was not contaminated and made dangerous.

5. The purchaser of paraffin has no opportunity of testing the quality of the paraffin that he purchases neither is he indeed expected to test it.

Appeal allowed.

Cases

1. Mwananchi Service Station & another v Minga [1973] EA 305

2. Embu Public Road Services v Riimi [1968] EA 22

3. Muhhiddin v El Kassaby [1960] EA 201

5. Donoghue v Stevenson [1932] AC 562; [1932] 1 All ER 1

Statutes

No statutes referred to.

Charles Ogejo Ochieng v Geoffrey Okumu

Court of Appeal, at Kisumu November 24, 1995

Akiwumi, Tunoi & Lakha JJ A

Civil Appeal No 181 of 1995

(Appeal from the judgment and decree of the High Court of Kenya at Kisii (Mr Justice Mbaluto) dated 26th April, 1995 in HCCC No 464 OF 1991)

Trespass - action for damages for trespass - whether a person not having possessory rights can bring an action for recovery of damages for trespass.

The High Court dismissed the appellant’s claim in which he sought eviction of the respondent from the suit land and a permanent injunction restraining the latter from interfering with the suit land in respect of which the appellant was the registered proprietor. The appellant averred that the respondent had trespassed on his land parcel however the respondent provided evidence to the effect that he was not on the appellant’s land but on his own land known as LR No 8534/130 to which he held title having acquired it from the Government of Kenya. The appellant being dissatisfied by the decision of the High Court filed an appeal.

Held:

1. Trespass is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass.

2. In the instant case the appellant has no right to sue in trespass since the respondent was lawfully in possession of the title to the suit land at the time of the alleged trespass.

Appeal dismissed.

Cases

No cases referred to.

Texts

Simonds, V et al (Eds) (1962) Halsbury’s Laws of England London: Butterworths & Co 3rd Edn Vol XXXVIII p 744

Statutes

Registration of Titles Act (cap 281) section 23(1)

Jaluo Mandira v Juma Kwalanda Joseph

Court of Appeal, at Kisumu November 23, 1995

Kwach, Tunoi & Lakha JJ A

Civil Appeal No 131 of 1995

(Appeal from the decision of the High Court of Kenya at Kakamega  (Mr Justice B K Tanui) dated 31 day of May, 1995 at Kakamega  in HCCC No 122 “A” of 1990)

Land law - first registration - rectification of register - whether Court can order rectification of register in respect of a first registration-section 143[1] Registered Land Act.

Land law - first registration-appellant causing registration of land occupied together with the respondent in his sole name - land earlier apportioned between appellant and the respondent - whether appellant’s title being a first registration is challengeable - section 143[1] Registered Land Act.

The respondent successfully sought a declaration in the High Court that the appellant (defendant) holds half of land parcel South Kabras/Chemuche/7 in trust for him and the appellant was ordered to execute the necessary documents to effect transfer of the said portion in his favour.

Held:

1.Under section 143 (1) of the Registered Land Act the Court may not make an order for rectification of the register if it is a first registration whether or not the title was obtained, made or omitted by fraud or mistake.

2. Section 143(1), however, does not preclude the recognition of a trust provided it can be established.

3. The learned judge was correct when he so held that the trust created in 1957 would not be defeated by the registration of the respondent as proprietor of half of the suit land.

Appeal dismissed.

Cases

Kimani v Gikanga [1965] EA 735

Statutes

Registered Land Act (cap 300) section 143(1)

Advocates

Mr Siganga for the Appellant

Civil Practice and Procedure - arbitration - appeal against a judgment entered in terms of the arbitration award - appellants challenging the entering of the award - matters to which such an appeal under the Civil Procedure Rules Order 45 rule 17(2) is confined - whether the decree was in excess of or not in accordance with the award - whether the appeal was proper.

[Ruling] Civil Practice and Procedure - appeal - appeal against the dismissal of a case - partly heard case dismissed without hearing any witnesses or submissions - whether the dismissal was a travesty of justice - whether the case should be reinstated and re-heard.

Kyale v The Republic

Court of Appeal, at Kisumu

November 22, 1995

Kwach, Akiwumi & Lakha, JJ A

Criminal Appeal  No 68 of 1995

Criminal practice and procedure- charge- amendment of- procedure to be followed by court on amendment of charge- Section 214[1] –Criminal Procedure Code.

Criminal practice and procedure-charge-amendment of-appellant indicating to court that trial may proceed after amendment of the charge without recalling witnesses-whether appellant can subsequently challenge the trial as contrary to Criminal Procedure Code.

Head notes

The appellant who was an Inspector of Police and was convicted on the alternative charge of stealing by a person employed in the public service contrary to Section 280 of the Penal Code and ordered to serve two years suspended sentence. His appeal to the superior was dismissed as lacking in merit. On second appeal, his counsel on two principal grounds: first, he submitted that Section 214 (1) (ii) of the Criminal Procedure Code, Cap. 75 had not been complied with and, secondly, that the charge was defective and contravened Section 280 of the Penal Code, Cap. 63 in failing to state whose property it was that the appellant stole.

HELD

1. Under section 214 (1) of the Criminal Procedure Code, where at any stage of a trial before the close of the case for the prosecution it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case provided that where a charge is so altered, the Court shall call upon the accused person to plead to the altered charge.

2. Where a charge is altered under section 214[1] the accused may demand that the witness or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.

3. in the instant case after the court had allowed an amendment of the charge the appellant’s then advocate is recorded to have indicated that the trial may proceed without recalling the witnesses and the appellant was called upon to plead to the altered charge. The court does not therefore, agree that there was non compliance with Section 214 (1) (i) (ii) of the Criminal Procedure Code.

Appeal dismissed

 William Ocharo Maangi v Joseph Onyoni Kombo

Court of Appeal, at Kisumu June 16, 1995

Akiwumi, Tunoi & Shah JJ A

Civil Appeal No 18 of 1995

(Appeal from the judgment and decree of the High Court of Kenya at Kisii (Mr Justice Tom Mbaluto) dated 4th July, 1994 in HCCC Case No 172 of 1992)

Land law - sale of land - contract for the sale of land - agricultural land - requirement of the consent of the land control board - parties failing to seek and obtain the transaction of the land control board - transaction became void for all intents and purposes - future discussions of the contract not amounting to a new contract since oral discussions could not vary contract - Land Control Act sections 6(1), 8(1)Cases

No cases referred to.

Statutes

1. Land Control Act (cap 302) sections 6(1); 8(1), (3)

2. Court of Appeal Rules (cap 9 Sub Leg) rules 31, 91

3. Judicature Act (cap 8) section 3(2)

Advocates

Mr Omae for the Appellant