Civil Procedure - application for stay of execution pending appeal - party who has concealed material particulars to the court not entitled to the court's discretion.

Pothiwalla v Kidogo Basi Housing Co-operative

Society Ltd & 31 others

Court of Appeal, at Nairobi December 11, 2003

O’Kubasu JA

Civil Application No NAI 286 of 2003 (UR.142/2003)

Civil Practice and Procedure - extension of time – time to file Notice of Appeal and lodge Record of Appeal – court’s unfettered discretion – how such discretion should be exercised – what an applicant must do in order to succeed in an application for extension of time – rule 4 of the Court of Appeal Rules.

The applicant herein sought an extention of time to file a Notice of Appeal and to lodge a Record of Appeal. The applicant submitted that the suit land had been in dispute for about 7 years and it was valued at Kshs.30,000,000/=. The applicant was a trustee and an ealier appeal was struck out as the Record of Appeal did not contain a certified copy of the decree. The applicant explained that the reason why there was a delay in filing this application was because he had fallen sick.

The respondent contended that the court had to look at the totality of the matter when dealing with an application of that nature. It was pointed out that the Notice of Appeal was defective and so was the certificate of delay.

The respondent argued that there would be no point in granting leave yet the appeal was hopelessly out of time.

Held:

1. In an application under rule 4 of the Court of Appeal Rules to extend time to file a Notice of Appeal and lodge Record of Appeal, the court is being asked to exercise its unfettered discretion.

2. The discretion of the court under rule 4 of the Court of Appeal Rules must be exercised judicially.

3. For an applicant to succeed in an application under rule 4 of the court of Appeal rules (cap 9 sub leg) he must satisfy the court that:-

a) The delay was not inordinate;

b) the delay has been sufficiently explained;

c) the intended appeal is arguable; and

d) no prejudice would be caused to the respondent if the application to extend time is allowed.

4. The delay in bringing the application soon after the earlier was struck out had been satisfactorily explained and the applicant was entitled to the benefit of the court’s discretion.

Application allowed.

Cases

Kiragu, Muchugi v James Muchugi Kiragu & another Civil Application No NAI 356 of 1996

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 4

Advocates

Mr Maanzo for the Applicant.

Mr Jiwaji for the Respondent.

Civil Procedure - extension of time to file and serve notice of appeal - discretion of the court in such an application - matters the court will take into consideration.

Landlord and Tenant - action by tenant for illegal distress for rent.

Muthaiga Road Trust Company Ltd v Five

Continents Stationers Ltd & 2 others

Court of Appeal, at Nairobi December 5, 2003

Tunoi, O’Kubasu & Githinji JJ A

Civil Appeal No 298 of 2001

(Appeal from the ruling and order of the High Court at Nairobi (Visram J)

dated July 31, 2001 in HCCC No 1707 of 2000)

Civil Practice and Procedure - setting aside - ex parte judgment – factors that should be considered in applications to set aside – need for a defence on the merits – requirement of triable issue.

This was an appeal from the ruling of the superior court in which Visram J set aside an ex parte judgment which had been entered against the defendants on failing to enter appearance.

Held:

1. Where a plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons the court shall on request enter judgment against the defendant for any sum not exceeding the liquidated demand together with interest.

2. Sch judgment may however be set aside pursuant to Order IXA rule 10 of the Civil Procedure Rules.

3. The court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits.

4. A defence on the merits does not mean a defence that must succeed but rather a triable issue that is an issue which raises a prima facie defence and which should go to the trial for adjudication.

Appeal allowed.

Cases

Patel v EA Cargo Handling Services Ltd [1974] EA 75

Statutes

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

2. Civil Procedure Rules (cap 21 Sub Leg) order IXA rules 3(1) 5, 6, 10

Advocates

Mr Ohaga for the Appellant

Mr Musili for the Respondents/Defendants

Kenya Bus Services Limited v Dina Kawira Humphrey (suing as the Adminstrator of the Estate of Josephat Kinegeni M'daka)

Court of Appeal, at Nairobi November 21, 2003

Omolo, Tunoi & Githinji JJ A

Civil Appeal No 295 of 2000

(An appeal from the judgment of the High Court

at Embu (Omwitsa, CA) dated 3rd day of March, 2000 in

HCCC No 105 of 1998)

Negligence – vicarious liability – whether appellant vicariously liable for the negligence of it’s driver – master’s liability for his servant’s torts – assessment of damages at the discretion of a trial judge.

Damages - general damages - for loss of expectation of life and loss of dependency - deceased a P1 teacher aged 32 years - deceased survived by three children aged between 2 and 13 years - whether multiplier of 20 appropriate - quantum of damages.

The respondent who had lost her husband in a road accident, sued the appellant to recover damages for the negligence of the appellant’s driver.

The respondent alleged that the appellant was vicariously liable for the negligence of its driver. The trial court found the appellant 100% liable for negligence and awarded damages to the respondent. The appellant filed an appeal against the finding of liability and quantum of damages.

Held:

1. Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible.

2. This presumption is made stronger or weaker by surrounding circumstances and is not necessarily disturbed by the evidence that the car was lent to the driver by the owner.

3. The assessment of damages is at the discretion of a trial judge and an appellate court will not disturb the award of damages unless it is so inordinately high or low as to reprevent an entirely erroneous estimate.

Appeal on liability dismissed, appeal against assessment of damages allowed.

Cases

1. Dritto v West Nile District Administration [1968] EA 428

2. Karisa v Solanki [1969] EA 318

3. Butt v Uwais Ahmed Khan by M Akmal Khan [1982-88] 1 KAR 1

4. Kenya Bus Services & Peter Kitheka v Fredrick Mayende [1988-92] 2 KAR 232

5. Kemfro Africa Limited t/a “Meru Express Services (1976)” & another

v Lubia & another (No 2) [1987] KLR 30; [1982-88] 1 KAR 727

6. Kitavi v Coastal Bottlers Ltd (1985) KLR 470

Statutes

1. Fatal Accidents Act (cap 32)

2. Law Reform Act (cap 26)

Advocates

Mr Ole Kentai for the Respondent.

Civil Procedure - taxation of costs - bill of costs - reference of a ruling of the High Court dismissing a reference from the taxing master/Deputy Registrar - whether party who acts for himself entitled to costs as if he were an advocate.

Civil Procedure - taxation of costs - reference on taxation under rule 19 of the Court of Appeal rules.

[Ruling] Civil Practice and Procedure - appeal - record of appeal - supplementary record of appeal - application for leave to file a supplementary record of appeal - full bench of the court having previously found that the documents omitted from the record were not primary documents and therefore the record of appeal was not incurably defective - appeal relating to a suit against a national airline for alleged illegal redundancy of its employees - applicant stating that the decree award once computed would be in the amount of Kshs. 2 Billion -  court considering whether to allow the application would cause delay in the  hearing of the appeal or cause any prejudice to the respondents - Court of Appeal Rules rule 85(2A)

Harit Sheth t/a Harit Sheth Advocate v K. H. Osmond

t/a K H Osmond Advocate

Court of Appeal, at Nairobi August 1, 2003

Omolo, O’Kubasu & Githinji JJ A

Civil Appeal No 276 of 2001

(An appeal from the Ruling and Order of the High Court of Kenya at

Milimani Commercial Court Nairobi (Justice Ole Keiwua) dated

16th October, 1998 in HCCC No 311 of 1998 (OS)

Civil Practice and Procedure - appeal - leave to appeal – leave to appeal against order dismissing originating summons for enforcement of an advocate’s undertaking – whether absence of leave fatal - under Civil

Procedure Rules (cap 21 Sub Leg) order LII rule 7 .

Statutes - interpretation of statutes - subsidiary legislation – literal interpretation - where literal interpretation of rules leads to inconsistency and repugnancy – whether rules to be construed in the sense which makes them operative.

The appellant filed an appeal against the dismissal of his application under order 52 rule 7 and 10 of the Civil Procedure Rules and section 3A of the

Civil Procedure Act for an order that the respondent should honour a professional undertaking.

The respondent raised the issue of the absence of leave to appeal because order XLII Rule 1(1)(dd) of the Civil Procedure Rules did not include

Rule 7 of Order LII as one of the orders from which an appeal can be made as if right.

The appellant submitted that rule 6A of order LII referred to in order XLII rule 1(1) (dd) and was in identical terms with the existing order LII rule 7 including the marginal notes.

Held:

1. The Civil Procedure Rules order XLII Rule 1(1)(dd) should not be construed literally. It should be construed together with order LII in the present form and be given a sensible meaning to make it operative.

2. The order of the superior court is appellable as of right and that the appeal should proceed to hearing on its merits.

3. (Obiter Dictum) It is fitting that for the benefit or legal practice, a recommendation be made to the Rules Committee, which we hereby make, that appropriate amendments to rule 1(1)(dd) of order XLII of the Civil Procedure Rules be made as soon as possible.

Application Denied.

Cases

No cases referred to.

Texts

Simonds, V et al (Eds) (1961) Halsbury’s Laws of England London:

Butterworths 3rd Edn Vol XXXVI para 582

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 39, 80

2. Civil Procedure Act (cap 21) sections 3A, 81

3. Civil Procedure Rules (cap 21 Sub Leg) order XLII rule 1(1)(dd); order

LII rules 4, 5, 6, 6A, 7, 10

4. Advocates Act (cap 16)

5. Civil Procedure (Amendment) Rules 1973

6. Civil Procedure (Amendment) Rules 1975

7. Civil Procedure (Amendment) Rules 1978

8. Civil Procedure (Amendment) Rules 1996

Advocates

Mr Nagpal for the Appellant.

Mr Egala for the Respondent.