Bayusuf Brothers Ltd v Kyalo

High Court, at Mombasa December 19, 1980

Kneller J

Civil Case No 762 of 1976

Civil practice and procedure - amendment of pleadings - discretion of the court to allow or disallow an application for amendment - when amended defence contradicts earlier defence - long period between amended defence and when cause of action arose.

The defendants applied for leave to amend their defence. The amended defence which came 31/2 years later substantially contradicted the initial defence. The plaintiff objected to the amendment and applied for the same to be struck out.

Held :

1. The granting and disallowing amendment of pleadings is within the discretion of the court.

2. The application to amend is disallowed as applicant had not given valid reasons to the satisfaction of the court.

Application disallowed.

Cases

1. Bindera w/o Said Molo v Salim Said Bajoh and Omar Sheikh Said in Mombasa HCCC 461 of 1973

Statutes

Civil Procedure Act (Cap 21, Sub Leg) Order VIA rule 3

R  M v Gayatri Engineering Works

High Court, at Mombasa June 18, 1980

Kneller J

Civil Case No 214 of 1978

Negligence - contributory negligence - when can an employee aged sixteen be said to have contributed to injury during the course of employment - contributory negligence and proportion thereof - failure to use protective goggles where those provided by the employer were defective - where demand for goggles causes threat of loss of job - existence of notice that work must be done with protective eye goggles when none were provided.

Employment - injury in the course of duty/employment – failure to provide safe working environment; is this a breach of the employment contract?

Factories Act - standard of proof of existence of statutory duty to provide protective clothing as per Section 54(1).

The plaintiff a minor aged sixteen years was employed by the defendant. He was injured during the course of employment. The plaintiff contended that the defendant did not provide protective appliances therefore was in breach of statutory duty under the Factories Act Section 54(1). The defendant argued that it did provide these appliances and that the plaintiff had failed to use them and therefore was negligent to an extent. The defendant further argued that even though the available protective goggles were defective, there was a spare one in the store.

Held :

1. It is not enough for an employer to provide a safe working system or appliance, he must also ensure that the system is followed and the appliance used.

2. The existence of spare goggle in the store does not discharge the employer from liability.

3. The employer having failed to ensure and to see as far as it is reasonably possible that the system worked was in breach of the statutory duty under the Act. Plaintiff has further proved beyond the balance of probabilities that the defendant was guilty.

4. Even if there had been no statutory breach (which was not the case), there would be a breach of its common law duty and it was proved that the defendant was in breach of this common law duty.

5. The plaintiff was 50% responsible for the injury hence contributory negligence.

Appeal dismissed.

Cases

No case referred to.

Statutes

Factories Act

Mwangi v Mwenjathi

High Court, at Mombasa May 14, 1980

Kneller J

Civil Case No 589 of 1977

Land - Land Control Board - transaction in controlled land without subsequent Land Control Board consent - can a purchaser succeed in a claim for improvements or mesne profits in such a failed transaction.

The plaintiff entered into a sale agreement with the defendant for six acres of the defendants 13.9 acres. The plaintiff paid the total purchase price set out which was Kshs 3,900 on condition that the defendant would obtain the necessary Land Control Board consent and cause the land to have a separate title issued. Meanwhile, the plaintiff and his family moved to the suit land and carried on general development. However the defendant failed/refused to obtain the necessary Land Control Board consent and the plaintiff has sued for specific performance of the agreement for sale or the return of Kshs 3,900, Kshs 455 for the agreement and a further Kshs 19,100 for improvements made on the six acres for the last seven years.

Held :

1. That the sale was void for all purposes because the Land Control Board had not given its consent within three months of the agreement hence specific performance cannot be ordered.

2. That the plaintiff’s entry into possession of the suit land was in furtherance of a void transaction and constitutes an offence under Section 22 of the Land Control Act.

3. That the plaintiff could only recover the purchase price as a debt.

4. That the plaintiff failed in his claim for improvements or mesne profits and must vacate the suit land.

Action dismissed with costs.

Cases

1. Peter Kairie Murigi v Nginyo Kariuki & 2 others Nairobi High Court Civil Suit 16 of 1969

Statutes

Land Control Act (Cap 302)

Advocates

Macharia & Njage for Plaintiff