Mifra Construction Company Ltd v Eldoret

Municipal Council

High Court, at Eldoret September 20, 2000

Visram, Commissioner of Assize

Miscellaneous Civil Application No 193 of 1998

Contract – illegal contract – such contract void ab-initio.

Local Government – contracts by Local Government – where people with vested interests participate in proceedings – such contracts illegal and void ab-initio.

Arbitration – arbitration award - arbitrator applying wrong principles or failing to take into account correct principles – Court to upset such award.

The applicant, by way of Notice of Motion brought under sections 3A and 89 of the Civil Procedure Act and 35(1) (a) (ii) and (b) of the Arbitration Act, 1995 and order L rule 1 of the Civil Procedure Rules, sought to set aside an interim arbitral award. The main ground of the application was that the arbitrator erred in principle in failing to appreciate that the contract was in dispute, hence void ab initio. The reason for the illegality was stated to be that it was entered into in contravention of the express provisions of the Local Government Act.

Held:

1. No application is to be defeated by use of a wrong procedural mode and the judge has the discretion to hear it either in Court or in chambers.

2. If a contract is tainted by illegality, it has no benefit to the parties.

3. Section 89(1) of the Local Government Act talks of any pecuniary interest, direct or indirect, that requires disclosure, and withdrawal from participation in the proceedings.

4. An artibrator’s finding will not invite quick interference of the High Court. However, an arbitrator must always make his determination guided by proper principles. If he fails, the Court will not hesitate to overturn his finding.

Application allowed.

Cases

1. David Taylor and Son, Ltd v Barnett [1953] 1 All ER 843

2. R v Hendon Rural District Council ex parte Chorley [1933] 2 KB 696; [1933] All ER Rep 20

3. Boyes v Gathure [1969] EA 385

4. Kinyanjui, Johnson Joshua v Rachel Wahito Thande Civil Appeal No 284 of 1997

Texts

Furmston, M P et al (Eds) (1986) Cheshire, Fifoot & Furmston’s Law of Contract London: Butterworths 11th Edn pp 334, 337, 341 - 345, 359 - 361

Statutes

1. Civil Procedure Act (cap 21) sections 3A; 89

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

3. Arbitration Act 1995 (Act No 4 of 1995) sections 3, 7(2); 17; 32; 35(2) (a) (ii) (b)

4. Local Government Act (cap 265) section 89(1) (2) (5)

Advocates

Mr Gicheru for the Applicant

Mrs Odede for the Respondent

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Kebaso v Chairman of the Board of Governors

Matongo Lutheran Theological College

High Court, at Eldoret August 25, 2000

Nambuye J

Civil Case No 28 of 1998

Injunction – mandatory injunctions – may not be granted where  inconvenience to third parties is envisaged.

The plaintiff approached the Court under a certificate of urgency by way of Notice of Motion under order 39 rules 1, 2 and 3 of the Civil Procedure Rules and section 3(A) of the Civil Procedure Act seeking among other orders, that the defendant/respondent be ordered by way of mandatory injunction not to carry out graduation ceremony without the name of the applicant plaintiff being on the diploma DT 1 or DT 2 list of graduands, until further orders of court.

Held:

1. An urgent application during the court’s vacation should be certified before the judge to make orders that the same be placed before the judge during the vacation. Failure to do so, however, is not fatal.

2. A mandatory injunction should not be granted where innocent parties are likely to be affected.

Application allowed.

Cases

1. Giella v Cassman Brown and Co Ltd [1973] EA 358

2. Shitakha v Mwamodo & 4 others [1986] KLR 445; [1982 - 88] 1 KAR 965

3. Belle Maison Limited v Yaya Towers Limited Civil Case No 2222 of 1992

4. NoorMohamed JanMohamed v Kassamali Virji Madhani (1953) 20 EACA 8

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2, 3

2. Civil Procedure Act (cap 21) section 3A

Koech & 4 others v Yego & another

High Court, at Eldoret July 5, 2000

Nambuye J

Civil Case No 22 of 2000

Civil Practice and Procedure - locus standi - right of a party to bring a suit - incidence of the right - procedure in litigating on behalf of members of the public.

The plaintiffs came to Court by originating summons taken out against Isiah Yego and the African Inland Church of Kenya Trustees for determination of two issues, namely, whether the AIC Kenya Trustees was entitled to amalgamate Nandi/Kamoiywo/308 and Nandi/Kamoiywo/ 317 to form Nandi/Kamoiywo/2076 and whether such amalgamation and consequent registration in favour of the Trustees at the detriment of Saniak Primary School was fraudulent. The respondents filed a notice of preliminary objection to the effect that the plaintiffs had no locus standi and that the entire suit should be dismissed with costs.

Held:

1. Rules of Natural Justice would apply only where the legal right, liberty or interest of an aggrieved party has been affected failing which a party has no right to be heard.

2. For one to litigate one has to have locus standi and secondly one must have an interest capable of being protected.

3. For one to litigate on behalf of the public one has to obtain the mandate of the many members of the public to litigate on their behalf and secondly seek authority from the Attorney General to file such proceedings.

Preliminary objection upheld, application struck out.

Cases

1. Nairobi Permanent Markets Society & 11 others v Salima Enterprises & 2 others Civil Appeal No 185 of 1997

2. Wreck Motor Enterprises v Commissoner of Lands & 3 others Civil Appeal No 71 of 1997

3. Commissioner of Lands v Kunste Hotel Limited Civil Appeal No 234 of 1995

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rule 2; order XXXIX rules 1, 2, 9

2. Civil Procedure Act (cap 21) section 61

3. Registered Land Act (cap 300) sections 30, 143

4. Government Lands Act (cap 280) section 36

...

Evidence-documentary evidence-P3 from was not produced by the police officer who escorted the appellant for medical examination-neither was the postmortem report produced by the police officer who attended the post mortem-whether the documents were improperly introduced in evidence-validity of such evidence