Amir A. Boy v Land Adjudication Director & another

Court of Appeal, at Mombasa July 28, 1995

Gachuhi JA

Civil Application No NAI 168 of 1995

(Application for extension of time to lodge memorandum and record of appeal out of time in an intended appeal from a ruling/order of the High Court of Kenya at Mombasa (Justice ICC Wambilyangah) dated 23rd November, 1992 in HC Misc C No 131 of 1991)

Court of Appeal - application for extension of time to file record of appeal - whether applicant is under obligation to give details of the case in support of the application.

Court of Appeal - application for extension of time to file record of appeal - applicant seeking extension of time to file record of appeal after the land subject matter of the appeal has been registered in the names of third parties-whether application if granted will not cause injustice

The applicant brought the instant application under rule 4 of the Court of Appeal Rules seeking extension of time within which to file a record of appeal.

The applicant had filed a record of appeal against the ruling of the superior court but when the same came up for hearing on 20th January, 1995, it was struck out as being incompetent for having failed to include a certified copy of the order appealed against as provided by rule 85(1)(h).

Counsel for persons directly affected by the application however opposed the application on the grounds although the Court has discretion under rule 4, such discretion should not aid a litigant who fails to lodge proper papers and seek orders for review or to cause injustice to the successful party. The applicant however maintained in his affidavit in support of the application that the omission to file certified copy of the order was bona fide and was occasioned by the misinterpretation of rule 85 by his advocate.

Held:

1. In an application for extension of time, it is unnecessary to state in detail the facts of the case, but in the present application, it is necessary to do so since counsel for the directly affected persons and Senior Principal State Counsel submitted that even if extension is granted, it will be a waste of time and money as the appeal has no prospect of success.

2. Where indulgence is sought, even if the delay be excusable the applicant still has to show that no injustice would be caused to the successful litigant.

3. The respondents and the directly affected persons have undergone traumatic process and expense in getting the ex-parte order set aside and rectification of the register. The applicant has been requested to return the titles issued to him for cancellation but has refused which refusal has caused the Kwale District Land Registrar to publish Gazette Notice No 5386 on 2nd September, 1994 to the effect that the directly affected persons named in the notice will be re-registered as owners of their respective plots. To allow the application will be an exercise in futility as the intended appeal has already been overtaken by events and it has no prospect of success.

Application dismissed

Cases

1. Brink’s-Mat Ltd v Elcombe [1988] 3 All ER 188; [1988] 1 WLR 1350

2. Owners of the Motor Vessel “Lilian S’” v Caltex Oil (K) Ltd [1989] KLR 1

3. R v Kensington Income Tax Commissioners Ex parte Princess. Edmond De Polignac (1917) 1 KB 486

4. Pollok House Ltd v Nairobi Wholesalers Ltd (No 2) (1972) EA 172

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 4, 85, 85(1) (h)

2. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13

Advocates

Mr Gacivi for the 1st and 2nd Respondent

[Ruling] Civil Practice and Procedure - record of appeal - illegibility of the record of appeal - respondent complaining that the record appeal contained illegible material which rendered it incompetent - appellant requesting to be allowed to produce the original exhibits and to file them in a supplementary record - appellant seeking an adjournment -Court of Appeal Rules rule 13

 Munaver N Alibhai t/a Diani Boutique v  South Coast Fitness & Sports Centre Limited

Court of Appeal, at Mombasa July 24, 1995

Gachuhi, Kwach & Omolo JJ A

Civil Appeal No 203 of 1994

(Appeal from the judgment of the High Court of Kenya at Mombasa (Justice Wambilyangah) dated 21^st September, 1993 in HCC Appeal No 111 of 1992)

Landlord/Tenant Law - controlled tenancy - procedure for termination-section [4]1 Landlord & Tenant (Shops, Hotels & Catering Establishments) Act.

Landlord/Tenant Law - controlled tenancy - landlord giving notice of termination of controlled tenancy contrary to provisions of section [4]1 Landlord & Tenant (Shops, Hotels & Catering Establishments) Act-whether tenant is under duty to react to the invalid notice.

Landlord/Tenant Law - controlled tenancy - landlord giving notice of termination of controlled tenancy contrary to provisions of section [4]1 Landlord & Tenant (Shops, Hotels & Catering Establishments) Act -whether court has jurisdiction to grant summary judgment on an application grounded on the invalid notice.

The respondent after giving the appellant notice of termination of tenancy successfully sued the latter for vacant possession in the magistrate’s court. The appellant appealed to the superior court against that decision and its

appeal was dismissed, giving rise to the present appeal.

Both the magistrate’s court and the High Court made concurrent findings that the appellant was a protected tenant with a controlled tenancy under the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act (Cap 301). The appellant in its defence before the magistrate challenged the court’s jurisdiction but the trial magistrate though that the notice of termination served on the appellant by the respondent was both valid and effective and, on that basis, the magistrate thought he had jurisdiction to make the order for possession, which he did. The judge, on the other hand, was of the view that the notice, strictly construed, did not comply with the requirements of the Act, but having so found, he went on to uphold the magistrate on the ground that the appellant had not reacted to the invalid notices sent to him. The judge thought the appellant was bound to react to the invalid notices by, for example, making a reference to the tribunal, so as to be able to claim the protection afforded to it by the Act.

Held:

1. Section 4(1) of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act.

2. The notice of termination given by the respondent was clearly void and had no effect in law on the appellant’s tenancy and the appellant was under no duty, legal or otherwise to react to it.

3. Neither the magistrate nor the judge had jurisdiction in this matter as the tenancy in issue was a controlled one and in signing summary judgment in favour of the respondent, the magistrate acted without jurisdiction

Appeal allowed.

Landlord and Tenant – controlled tenancy – right to terminate – where one serves notice to another purporting to terminate and tenancy - whether such notice is valid – whether controlled tenancy can be terminated by just issuing a notice.

This was a second appeal by the appellant from a decision of a Resident Magistrate; Mombasa giving vacant possession of suit premises of the respondent.

The gist if the case is that the respondent served a notice on the appellant purporting to terminate the appellant’s tenancy. The appellant ignored the notice and the Respondent sued him for grant of vacant possession of premises. Respondent won the case whereby the appellant appealed to Supreme Court, whereupon his appeal was dismissed, hence this appeal.

The appellant in its defence before the magistrate challenges jurisdiction and also raised the issue of the invalidity of the notice of termination.

The Respondent on the other hand had applied for summary judgment claiming the defendant had no arguable defence.

Held:

1. A controlled tenancy shall not terminate or be terminated, and in no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Landlord and Tenant Act (Shops, Hotels & Catering Establishments) Act (Cap 301).

2. The notice of termination given by the respondent was clearly void and had no effect in Law on the appellant’s tenancy and the appellant was under no duty, legal or otherwise to react to it.

Appeal allowed.

Cases

Tiwi Beach Hotel Ltd v Juliane Ulrike Stamin [1988-92] 2 KAR 189

Statutes

1. Landlord & Tenant (Shops, Hotels & Catering Establishments) Act (cap 301) section 4(1)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1

 Car & General (K) Limited v Diamond Trust of Kenya Limited

Court of Appeal, at Mombasa July 20,1995

Gachuhi, Kwach & Omolo JJ A

Civil Appeal No 159 of 1994

(Appeal from the ruling and subsequent decree of the High Court of Kenya at Mombasa (Justice Wambilyangah) dated 23rd March, 1994 in  HCCC No 17 of 1993)

Civil Practice and Procedure - execution-attachment of property - where the motor vehicle attached by the decree holder does not belong to the judgment debtor under the terms of a hire purchase agreement-validity of the attachment.

Civil Practice and Procedure - execution-attachment and sale of movable property - where the sale takes place less than 15 days from the date on which the advertisement of the sale is affixed in the court precincts-validity of the sale-Civil Procedure Rules, Order XXI, rule 62.

The appellant, upon obtaining a decree, attached a motor vehicle that was on hire to the judgment debtor but belonged to the respondent. The respondent subsequently through a letter dated July 10, 1992 informed the appellant that the vehicle belonged to them and not to the judgment debtor. On July 14, 1992 the appellant’s advocates wrote to the respondent asking the respondent to provide relevant documents to prove their ownership of the vehicle. The respondent received the correspondence on July 17, 1992 and the respondent supplied the information on July 18, 1992. In the interim the appellant had advertised the vehicle for sale in the Kenya Times newspaper on July 15, 1992 and it was sold on the same day. The respondent then sued the appellant claiming Kshs 428,871/30, which represented the aggregate principal amount of the installment due and owing under the hire purchase agreement along with interest at the rate of 26% per annum from January 1, 1993. The appellant then filed a defence that was struck out upon the respondent’s application under Order VI, rule 13 of the Civil Procedure Rules on the grounds that it disclosed no reasonable defence, was scandalous, frivolous or vexatious and was otherwise an abuse of the processes of the court. The judge then entered judgment for the respondent for the sum of Kshs 428,871/30 with interest thereon at 26% per annum as claimed in the plaint. The appellant appealed this decision.

Held:

1. The sale was done in flagrant violation of Order XXI, rule 62 of the Civil Procedure Rules, which requires that where movable property is attached to be sold, the sale shall not, without the written consent of the judgment debtor, take place before 15 days from the date on which the advertisement of the sale is affixed in the precincts of the court.

2. The judge could only and must have entered judgment for the sum of Kshs 428,871/30 which was the sum claimed in the plaint. The other claim for Kshs 436,000 was in the alternative and could only be awarded if the main claim had failed.

3. The interest to be paid on a decretal sum is a matter for the discretion of the trial judge.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13; order XXI rule 62.

Arthur K. Magugu & another v Gitutho Associates & 3others

Court of Appeal, at Mombasa January 20, 1995

Kwach, Akiwumi & Shah JJ A

Civil Application No NAI 251 of 1994

(Application for stay of execution in an intended appeal from a ruling of the High Court of Kenya at Mombasa (Mr Justice Wambilyangah) dated 29th  July, 1994, in HCCC No 15 of 1994)

Appeals - stay of execution pending appeal - where summary judgment has been entered against the appellant after the appellant filed a defence that was a bare denial - validity of the application.

Appeals - stay of execution pending appeal - where one of the grounds of appeal is that the respondents were involved in a conspiracy with the appellant to defraud potential financiers - validity of the application.

The applicants brought the application under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution pending the hearing and final determination of an intended appeal against a summary judgment in the sum of Kshs 17, 773,889 entered against them. Summary judgment was entered after the applicants filed a defence that was a bare denial. The applicants advocate contended that the fees claimed by the respondents for services rendered were excessive and not within the scales prescribed under the Architects and Quantity Surveyors Act (cap 525), and that in signing judgment for the respondents for the full amount the judge misdirected himself because he rejected the opinion given by the applicants quantity surveyor without giving any valid reason for doing so.

Held:

1. The applicant’s track record had been completely appalling but as a court of justice the court cannot permit the applicant’s conduct, however reprehensible, to deter it from considering any redeeming features of his case.

2. The only reason the court deigned to hear the application which was supported by the affidavit of a self confessed conspirator to defraud innocent third partiers, is that the respondents, who, it was deduced from the affidavit evidence before the court, to have heartily participated in the same conspiracy to defraud, would otherwise, on their part, have without any challenge whatsoever, successfully exploited and abused the process of the court in achieving their reprehensible designs.

Application allowed.

Cases

No cases referred to.

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2) (b)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1

3. Architects and Quantity Surveyors Act (cap 525)

Advocates

Mr Machiras for the Applicants

Mr Gatonye for the Respondants

Pwani Wines & Spirits Merchants Limited & another v Hassan Saidi Ngonja & another

 Court of Appeal, at Mombasa January 19, 1995

Cockar CJ, Kwach & Shah JJ A

Civil Appeal No 116 of 1995

(Appeal from a judgment and decree of the High Court of Kenya at Mombasa (Justice Wambilyangah) dated 14th day of July, 1994 in HCCC No 720 of 1991)

Evidence - witnesses-testimony - where the learned judge in arriving at his judgment did not go at length into why he accepted the second respondent’s testimony over that of the second appellant-where the learned judge did not refer to a private investigator’s assessment, called on behalf of the first appellant in his judgment-validity of the judgment.

The first appellant’s motor vehicle while being driven by the second appellant was involved in a road accident with another vehicle being driven by the second respondent whereby the second respondent was coming onto the main road from a side murram road whereas the first appellant was attempting to overtake cars on the right side of the road. The point of dispute was as to the point of impact with the second appellant contending that it was on the tarmac road some 6 feet into the road and the second respondent contending that it was some 2 feet inside the murram road. In the proceedings before the superior court the learned judge considered both versions but did not go at length into why he accepted the second respondent’s version as opposed to the second appellant’s version. Furthermore the learned judge did not refer to an assessment by a private investigator called on behalf of the first appellant, the investigator being a former Chief Inspector in the police force with 12 years of traffic work experience, who was on the scene of accident almost immediately after the accident.

Held:

1. It was an error for the learned judge to brush aside the evidence of the second appellant and not go at length into why he accepted the second respondent’s version as opposed to the second appellant’s version of events.

2. It was a serious misdirection on the part of the judge not to have referred to the private investigator’s assessment.

Appeal allowed.

Cases

Mwangi v Wambugu [1984] KLR 453; [1982 - 88] 1 KAR 278

Statutes

No statutes referred to.

Advocates

Mr Okoth for the 2nd Respondent

 Hassan Mbarak v North Coast Fishermen’s Co-operative Society Limited

Court of Appeal, at Mombasa January 18, 1995

Kwach, Omolo & Shah JJ A

Civil Appeal No 48 of 1995

(Appeal from a judgment of the High Court of Kenya at Mombasa (Justice Wambilyangah) dated 17th June, 1993 in HCCC No 27 of 1986)

Cases

1. Jiwaji & others v Jiwaji & another [1968] EA 547

2. Campling Bros & Vanderwal Ltd v United Air Services Ltd (1952) 19 EACA 155

Statutes

No statutes referred.

Advocates

Mr Anjarwalla for the Appellant

Mr Kimani for the Respondent

 Salvatore De Luca v Khalil & another

Court of Appeal, at Mombasa January 27, 1995

Kwach, Omolo and Tunoi JJ A

Civil Appeal No 73 of 1994

(Appeal from a judgement of the High Court of Kenya at Mombasa (Mr Justice E M Githinji) dated 21st May, 1990, in Civil Case No 778 of 1987)

Judgment – payment in foreign currency – rule in – validity of an order for conversion of currency as at the date of the accident.

Fatal Accident – husband and wife – loss of consortium and servitium – trial court rejecting claim for – validity of order.

The appellant who lost his wife in fatal accident sued the respondent and obtained judgment in default of defence in February 26, 1988.

In assessing damages the trial judge awarded damages in Italian Lira (the currency of the appellant’s country) and directed that the date of conversion be the date of the accident. The learned judge however rejected the appellant’s claim for damages for loss of companionship and servitium of his wife.

The appellant contested the trial judge’s finding by appealing on two main grounds, namely, that the learned judge erred in converting the loss and damages in Italian Lira as at the date of the accident and secondly that failure to award damages for loss of love and consort was erroneous.

Held:

1. Where judgment involves payment in foreign currency the conversion date to be inserted in the claim or in the judgment of the court is the date of payment.

2. While the learned judge erred in holding that proper date of conversion of damages in Italian Lira into Kenya Shillings was in 1986 the Court would not upset his judgment in view of confusion appertaining to the date of payment of the decretal sum.

3. There is no doubt that the appellant lost companionship of his wife, there is moreover an impairment in the social life of the appellant and his young children who, too have lost love, care and devotion of their mothers. The learned judge accordingly erred in failing to award any damages for loss of consortium and servitium.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Law Reform Act (cap 26)

2. Fatal Accidents Act (cap 32)

Advocates

Mr Kasmani for the Appellant