Dominic Mwalugha v Republic

High Court, at Mombasa December 23, 1993

Mbogholi - Msagha J

Criminal Application No 189 of 1993

Bail – Bail pending appeal – application for – issues the Court will consider in such application – whether the fact that the intended appeal has overwhelming chances of success is a relevant consideration.

The appellant was charged with the offence of being in possession of cocaine contrary to rule 9 of Dangerous Drugs Act cap 245 Laws of Kenya. The charge was read to him and he said it’s true, the facts also read to him and he responded that the facts were correct. He was convicted and sentenced to 18 months imprisonment. He thereafter filed an appeal against both conviction and sentence and also bail pending hearing of the said appeal.

He stated that the plea of guilty was not unequivocal that it was not established that he understood the offence preferred against him, that the answer to the charge did not establish his guilt and finally that the sentence was harsh and excessive.

Held:

1. The prosecution had the duty, even in a plea of guilty, to prove that the applicant was guilty beyond any reasonable doubt.

2. The subject mater alleged to have been cocaine found in possession of the applicant was not proved as such and no government analysts’ report was produced to the Court and put to the applicant. This showed that the applicant’s report had overwhelming chances of being successful.

Application for bail granted.

Cases

Somo v Republic [1972] EA 476

Statutes

Dangerous Drugs Rules (cap 245 Sub Leg) rule 9

Peter Wambua t/a New Tawa Tyre trading v Retail Hardware & Sanitary Stores Ltd & another

High Court, at Mombasa December 6, 1993

Wambilyangah J

Civil Case No 56 of 1989

Civil Practice & Procedure - setting aside of attachment – where one fails to establish his claim as per provisions of order XXI rule 56 of Civil Procedure Rules – whether the Court should set aside attachment.

The plaintiff in this case, filed a suit against the defendant for Kshs 132,000/. The defendant denied liability, but made a set off and counter claim for Kshs 45,000. The defendant however failed to file replying affidavit and grounds of opposition and summary judgment was entered for the plaintiff. The plaintiff then intimated the intention to proceed with the attachment whereupon there was no objection within the stipulated time.

Held:

1. Nalish Ambalal Patel and his co-director had intended to defraud the plaintiff and deny him the fruits of judgment by causing the defendant to be dissolved and then dissipate its assets.

2. It was clear that the attaching creditor was entitled to proceed with the attachment once a copy of the notice under order XXI rule 56 was not served upon him and after 10 days expired before objectors had established its claim.

Application dismissed with costs.

Cases

No cases referred to

Statutes

1. Judicature Act (cap 8) section 5(1)

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

3. Civil Procedure Rules (cap 21 Sub Leg) order XXI rules 53, 54, 56, 57 ; order L rules 1, 2,16 (1)

Advocates

1. Mr Kenzi for the Plantiff

2. Mr Abdullah for the Defendant

Abdulatif Haji Esmail & 7 others v Ali Ashur & another

High Court, at Mombasa November 26, 1993

Mbaluto J

Miscellaneous Civil Case No 176 of 1991

Landlord and Tenant – notice to quit – where one remains on the property that has been sold on the basis of family arrangement and without paying rent – whether such a person is a mere licensee and therefore should be evicted

The plaintiff was a registered proprietor of premises known as Mombasa /Block/XVIII/202 and 203 situate along Kenyatta Avenue Mombasa. The said premises were said to originally belong to one Kassam Ismail Khamisa Kumbar, who was the 1st defendants’ half brother. Prior to acquisition of the premises the defendants were in occupation of premises on a family arrangement. The defendants contended that the arrangement between them and Kassam made them tenants.

The plaintiff contended that the defendants were mere licencees who had no right to remain on the premises against the will of the owner. He contended that although he bought the premises on vacant possession, he was assured by Kassam that the occupiers of property would move because they were relatives of Kassam. The plaintiff further contended that defendants had not been paying rent, therefore they were licencees and should move out of the premises.

Held:

1. The evidence in this case clearly showed that the defendants were not tenants at all but were licencees.

2. A tenant means a person to whom a lease is granted, while a licence is an authority to do something which would otherwise be inoperative, wrongful or illegal eg to enter land which would otherwise be a trespass.

Judgment for the plaintiff.

Cases

No cases referred to

Statutes

Rent Restriction Act (cap 296)

Texts

1. Sellings, V G (Ed) (1960) Woodfall’s Law of Landlord & Tenant London: Sweet & Maxwell 26th Edn pp 2, 9

2. Osborn, P (1964) Osborn’s Concise Law Dictionary London: Sweet & Maxwell 5th Edn p 193

Advocates

Mrs Ali for the Plantiff

Khisa v Ryce Motors Ltd

High Court, at Mombasa November 19, 1993

Mbaluto J

Civil Case No 766 of 1990

Negligence – industrial accident - where one leaves grease on floor exposing employees to danger of slipping – employee injured in fall – whether defendant negligent – assessment of damages.

Occupiers liability – Duty of care to licensees – where one fails to put dust on grease, result of which employee gets injured after slipping – whether one is in breach of statutory duty of care.

On 10.7.89, the plaintiff in this case, was a watchman employed by defendant. While on duty, he slipped, fell down whereby he fractured his skull and his right elbow was dislocated. He contended that this was due to grease that was on the floor of workshop that was not cleaned. That he therefore fell into a ramp and got injured due to defendants negligence and therefore sued for damages.

There was no answer to plaintiff’s claim as the person called to testify by defence had no knowledge of the events for the material day of accident, having been employed later.

Held:

1. The defendant, as occupier of the premises was in breach of its statutory duty of care to its licensees, one of whom was the plaintiff.

2. The defendant was also negligent in leaving the patch of grease on the floor of the workshop as it exposed people lawfully on the premises to danger of slipping and falling down in the event of stepping on it.

Judgment for plaintiff against the defendants.

Cases

1. Shali, Mohamed Somo Bwana v Kenya Cargo Handling Services Limited Civil Case No 22 of 1986

2. Thuo, Francis Mungai v Moses Gitungo & another Civil Case No 3133 of 1987

3. Mumo, Kitheka v Narshides & Co Ltd Civil Cwase No 220 of 1984

4. Ogari, Wesley Omenyi v Jaqar Singh Vasir Civil Case No 769 of 1987

Statutes

Occupiers Liability Act (cap 34) section 3 (3) (b)

Advocates

Mr Lumatete for the Plaintiff

Mr Musinga for the Defendant

Micahel Mutua Kiema v Hagginson Malindi Mwangemi & another

High Court, at Mombasa October 25, 1993

Wambilyangah J

Civil Case No 89 of 1989

Negligence – assessment of – where one is severely injured in a work pit due to failure of employer to install safety measure - whether the employer was negligent.

Master and servant – liability – where one has two masters – determination of which party is liable in the event that the employee is injured in the course of employment.

The plaintiff instituted a suit to recover from the defendants damages for personal injuries which he suffered when the upper wall of the pit in which he was working in the course of his employment collapsed on him. He underwent an operation to amputate the leg at Coast General Hospital.

It was contended for the plaintiff that the defendant was negligent in not putting safety measurers in the walls of the pit to prevent collapse.

The defendants in this case denied being negligent. Each of the defendants further denied that the plaintiff was their employee.

Held:

1. The contractors or employers of the plaintiff were culpably negligent when they omitted or failed to put the safety measure in place before the workers were ordered to work in the pit.

2. There was no contributory negligence on the part of the plaintiff.

3. In law, a man may have two masters although only one master may be entitled to give him orders as to the particular work upon which he is engaged. The primary test is which of them controls him.

4. The 1st defendant was his actual employer and the supervisor of the construction.

Judgment entered for the plaintiff against defendant.

Cases

Awadh, Mohamed v Simon Njenga Rurigi & another High Court Civil Case No 665 of 1989

Texts

1. Batt, FR (1953) The Law of Master and Servant; London: Pitman 4th Edn

2. Munkman, J (1979) The Employer’s Liability at Common Law; London: Butterworths & Co 9th Edn

3. Mann, A (1985) Medical Assessment of Injuries for Legal Purposes; London: Butterworths & Co 4th Edn p 276

Statutes

No statutes referred

Advocates

1. Mr Pandya for the Plaintiff

2. Mr Gikandi for the Defendant

Mathigi v Munuvi & another

High Court, at Mombasa October 22, 1993

Wambilyangah J

Civil Case No 545 of 1991

Civil Practice and procedure – execution objection to attachment – application for – where one’s property is attached – debtors entering into consent agreement for repayment - default in payment leading to sale of property to a third party - whether the innocent purchaser without notice acquired a valid title that could not be challenged.

This was an application under order XXI rule 58 of Civil Procedure Rules seeking attachment of the house which was done in executing decree. On 12.8.91 the plaintiff was given judgment after defendant had failed to file defence. Defendant’s swahili house was then attached on 29.10.91.

9.12.91, a consent order was recorded to the effect that defendants would settle the sum claimed by monthly installments of Shs 12,500, whereupon he defaulted and the house was reattached on 21.10.92 in execution of decree. The objector gave notice on 26.10.92 that the house no longer belonged to the defendant, that he bought it on 29.12.91, 20 days from date when consent was recorded, and that he was purchaser without notice.

It was contended for decree holder that he house was still attached, remained attached until the debt was cleared.

Held:

1. The objector was an innocent purchaser for value without notice.

2. The title the objector acquired in the property could not be challenged by the decree holder in the case.

Application dismissed with costs.

Cases

No cases referred to

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XXI rule 58

Advocates

Miss Munyari for the Decree holder

Mr Ogola for the Objector

Republic v Land Registrar, Kwale District Exparte Hassan Said Dele & another

High Court, at Mombasa October 14, 1993

Wambilyangah J

Misc Civil Application No 172 of 1992

Land – caution - where one registers a caution and he is not able to legally demonstrate his registrable interest – where one does not present Land Control Board’s letter of consent – whether such caution can be revoked.

This was an application seeking an order of mandamus directing the Land Registrar Kwale District to expunge from the registration records of Kwale /Mabokoni/913, Kwale/Mabokoni/1829, Kwale/Mabokoni/830 the caution file by Hamisi Saidi Mwakizondo. The application also sought an order of certiorari to remove into the High Court and quash the order of the Land Registrar Kwale District made by him at Kwale on 27.5.1992. The applicants, Hassan Saidi Dele and Andelya Omwitsa Gilbert contended that after a sale agreement between them, Msambweni Land Control Board issued them with a consent to the transaction of sale of Kwale/Mabokeni/1829. A transfer was duly signed and the application for registration dated 9.3.1993.

The said plot was part of subdivision of plot Kwale/Mabokoni/913 in which one Hamisi Said Mwakizondo had launched a caution. So when the applicant sought to registrar the transfer in respect of plot 1829, the Land Registrar registered the application on the ground that there was a caution.

Held:

1. It was instructive to note that a person who is entitled to register a caution in respect of a given piece of land must be the one who is able to assert and manifest his registrable interest in that piece of land as per section 131 of the Registered Land Act.

2. The caution in the question was wrongly lodged and equally, it was wrongly used by the Land Registrar to reject the application for registration of a valid transfer.

Application Allowed.

Cases

No cases referred to

Statutes

1. Registered Land Act (cap 300) sections 131, 133 (2)

2. Land Control Act (cap 302) sections 6(1); 7; 8(1); 22

Advocates

Mrs Momanyi for State (Land Registrar)

Mr Sagasi for the Interested Party

Banga Githae & 3 others v Kenya Ports Authority

High Court, at Mombasa October 13, 1993

Wambilyangah J

Civil Suit No 598 of 1993

Civil Practice and Procedure – pleadings – where one seeks a mandatory injunction in the chamber summons, but does not seek one in the plaint – whether the Court can issue a mandatory injunction in such as case.

The plaintiffs in this case asserted that they purchased scrap metal from defendant on 14th April, 93. The defendant however did not explicitly deny this contention. The plaintiff asserted they paid for them and were issued with receipts and requisition for port passes.

The defendant contended that it had intended to dispose off the scrap metal to the plaintiff, but they stopped it because the rate at which the plaintiffs wanted to buy it was too low.

The plaintiff’s further made an application for mandatory injunction to restrain defendant from disposing the said metal, while they did not make such an application or prayer in the plaint in the first place.

Held:

1. There was a consensus ad idem for the contract of sale of the goods.

2. The defence was vexatious

3. A mandatory injunction could not be issued as sought in the chamber summons as no such relief was prayed for in the plaint itself.

Chamber summons dismissed.

Cases

No cases referred to

Statutes

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

Mary Wanjiru Gachii v Kenya Bus Services (Msa) Ltd

High Court, at Mombasa October 12, 1993

Mbaluto J

Civil Case No 678 of 1990

Civil Practice & Procedure – stay of execution – application for – where it’s claimed that appeal has overwhelming chances of success – where its claimed that if decretal amount is paid, it will not be refunded – whether these are sufficient grounds for grant of stay of execution – Civil Procedure Rules o XLI rule 4.

The applicant in this case made an application for stay of execution under the provisions of Civil Procedure Rules o XLI rule 4. It was stated on behalf of the applicant that if the appeal had overwhelming chances of success, and that if the decretal amount was paid, it was to render appeal nugatory, counsel for the respondent expostulated that attachment of property had been effected and that there was no chances of appeal succeeding.

Held:

1. No order of stay of execution shall be made unless the Court is satisfied that substantial loss may result to the applicant unless the order is made, and that the application has been made without unreasonable delay.

2. Upon assessment of the matter, substantial loss was likely to occur if the application was not made.

Stay of execution granted.

Cases

No cases referred to

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XLI rule 4(2)

Advocates

Mr Gidandi Ngibuini for the Applicant

Mr Mburu Kariuki for the Respondent

Katana Mgao v Andrew Kamau Wokabi & another

High Court, at Mombasa September 28, 1993

Wambilyangah J

Civil Case No 165 of 1990

Negligence – road accident – where one is injured by vehicle due to failure of driver to completely bring vehicle to stop for boarding – whether the bus driver has duty of care – whether there was negligence on the part of the driver.

The plaintiff, was an intending passenger on KBS vehicle, instituted a suit to recover damages for personal injury sustained from the alleged negligent act of the driver.

It was contended for the plaintiff, that he was in the process of boarding bus Reg No KUZ 807 owned by 2nd defendant, when the 1st defendant negligently, suddenly and violently put the same in motion thus causing the said bus to run into a ditch, and causing the plaintiff to be thrown out of the same as a result of which it ran over his foot.

The 1st defendant contended that he remembers stopping at the alleged scene, but denied having seen the ditch in which at the plaintiffs foot was allegedly trapped. The plaintiff asserted that the defendant was negligent and therefore responsible for injury.

Held:

1. A prudent driver of a public vehicle should easily foresee that some passengers maybe hampered by all sorts of factors, whether personal or otherwise, from speedily jumping into the vehicle and so it behooves him to be patient and allow then enough time to safely get into the vehicle. The driver in the present case failed to observe these fundamental rules.

2. The second defendant as the employer was vicariously liable.

Judgment entered for the plaintiff.

Cases

Abed, Hadi v Abdul Ramzan Noormohammed High Court Civil Case No 1269 of 1978
Statutes

No statutes referred.

Advocates

Mr Mburu for the Plantiff