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Nzai & 3 others v Kilifi County Council & 2 others

High Court, at Mombasa November 10, 1994

Wambilyangah J

Miscellaneous Application No 146 of 1992

Civil Practice and Procedure – security for costs – application for – circumstances in which the Court has to consider – whether Court should exercise discretion – where a party to litigation is likely to abuse court process – whether Court should order grant of security for costs.

This was an application by one defendant for security for costs.

The tussle between the parties here was over a plot which was allocated to the 2nd defendant by the Commissioner of Lands and Kilifi County Council.

The plaintiffs contended that since they were squatters on the plot they were entitled to it on priority when the decision to allocate was made.

The plaintiffs had earlier made an interlocutory application for injunction. They lost it and their belated application for leave to appeal to the High Court was also refused. The second defendant’s costs for that application were assessed at Kshs 89,217/-. The plaintiffs could not however pay this amount. Their counsel contended that the plaintiffs were squatters, with no visible property to levy attachment for the decreed costs.

Held:

1. In exercising discretion the Court will have to consider all the circumstances of the case. A major matter for consideration is the likelihood of the plaintiffs succeeding. If there is a strong prima facie presumption that the defendant will fail in his defence to the action the Court may refuse him any security for costs.

Application allowed.

Cases

Giella v Cassman Brown & Co Ltd [1973] EA 358

Texts

Jacob, I H et al (Eds) (1990) The Annual Practice London: Sweet and Maxwell p 502

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XXV rule 6

Rules of the Supreme Court [UK] order 23 rule 1

Advocates

Mrs Khaminwa for the Applicants/Plaintiffs

Jilo & another v Republic

High Court, at Mombasa October 24, 1994

Oguk J

Criminal Appeals Nos 541 & 544 of 1993 (consolidated)  

(From original conviction and sentence in Criminal  Case No 108 of 1993 of the Senior Resident Magistrate’s  Court at Kilifi - P M Ndungu, Esq, SRM)

Evidence – identification – corroboration – where one is found with recently stolen goods – whether this acts as corroboration of the evidence of other witnesses – whether this is enough to impute that one has engaged in crime.

The appellants were jointly convicted after trial by Senior Resident Magistrate, Kilifi of the offence of robbery contrary to section 296(1) of the Penal Code. Each was to serve 5 years imprisonment, to receive 3 strokes corporal punishment and further to undergo a period of police supervision of 5 years.

The prosecution’s case was to the effect that on 30.1.1993 the complainant was awoken by barking dogs, peeped through the window and saw 2 men outside compound. The men went to servant quarters, woke the complainant’s servants, threatened to kill them if the complainant did not wake. The workmen (PW2 and PW3) woke complainant, who was in turn robbed by the said men of radio cassette, iron box, wrist watch, kitchen knife and Shs 5040.

PW5, the administration policeman met them, ordered them to stop but ran away. He arrested one of them. The appellants’ contention was to the effect that they were not involved in robbery and that they had been innocently arrested by police officer after they had found him at Bamburi stage.

Held:

1. The claim by the 1st appellant that he had been innocently arrested was not true.

2. The fact that the 1st and 2nd appellants were found in possession of very recent stolen properties corroborates the evidence of PW2 and PW3 that they were able to see them at the scene of crime during the robbery.

3. The Court is satisfied that the defences of each of the appellants were duly considered by the court below and rightly dismissed.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1)

Advocates

Mrs Momanyi for the Respondent/State

Employment Law-breach of contract-defendant wrongfully and in breach of the said agreement and without giving the plaintiff three months' notice to determine the said employment by their letter dismissed the plaintiff-claims of loss and damage-quantum of damages-whether the plaintiff was entitled to reliefs sought

Legai v Republic

High Court, at Mombasa September 26, 1994

Oguk J

Criminal Appeal No 457 of 1993

(From original conviction and sentence in Criminal Case No 1060 of the Principal Magistrate’s Court at Malindi - J R Karanja, Esq - R M)

Criminal Practice and Procedure – evidence – charge of possession of dangerous drugs – where one is arrested in possession of drugs – where there’s no evidence of grudge or motive or anything to show the planting of the evidence of possession on accused – where drug is examined and found to be prohibited under the Dangerous Drugs Act – whether claim that one was planted with evidence of possession could stand.

The appellant was convicted, after trial, of being in possession of 10 grammes of diacetylmorphine (heroin) in accordance with the provisions of Dangerous Drugs Act. He was sentenced to 2 years imprisonment, hence this appeal.

The prosecution’s case was to the effect that on 15.9.1993, acting on a tip off, Sergeant Malat Ayot (PW1) and PC Roiman Sadara (PW2) of Anti Narcotics Unit of CID ambushed the appellant. On searching him they found him with what they suspected to be drugs, and on examining at government chemist, they found it to be heroin.

The defence contention was to the effect that at the time of arrest, he was in company of another person, and that it was that other person who was found with the said drug and not him ( the appellant).

Held:

1. There was no evidence of grudge between appellant and two police officers (PW1 and PW2) or anything that could suggest that they had motive to plant the evidence of possession of the said drug on the appellant.

2. There was good and reliable evidence proving beyond doubt that the appellant was the one who was actually found in possession of the drug in question.

3. The said drugs were duly examined and found to be diacetylmorphine (heroin) which was a drug within the meaning of Dangerous Drugs Act  (cap 245 Laws of Kenya)

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Dangerous Drugs Act (cap 245) sections 14(1) (c); 18(2)

2. Dangerous Drugs Rules (cap 245 Sub Leg) rule 9

3. Statute Law Miscellaneous Amendment Act, 1983

Advocates

Mrs Momanyi for the Respondent/State

Negligence-damages-general damages for personal injuries where a worker sustained injuries after the wall collapsed -allegation that the probable cause of accident was the employers negligent failure to warn the workers about certain sections of the building which were under construction and dangerous to the workers injuries sustained were permanent pain in the wrist joint and the pelvis bone- where the defendants evidence was inconsistent as to the cause of accident-whether the inconsistency rendered the defence improbable- general damages of 450,000 and special damages of 3,600.

Municipal Council of Mombasa v Kanji & others

Ex Parte Ladha

High Court, at Mombasa June 23, 1994

Wambilyangah J

Miscellaneous Civil Application No 67 of 1992

Judicial Review – application for – certiorari and mandamus – where it’s shown that leave was sought – where one objects stating leave was not sought – where original files are lost – whether preliminary objection should be granted or disallowed – Civil Procedure Rules order LIII.

This was an application for judicial review seeking orders of certiorari and mandamus under order LIII of the Civil Procedure Rules.

This was in relation to the suit that had been filed by Municipal Council of Mombasa to recover the outstanding arrears of rates in respect of property No 302 section V/MN registered in the name of one Alibhai Kanji.

It was argued on behalf of the applicant that the property should not have been sold by an auctioneer who purported to execute a decree issued by a Magistrate’s Court because the purported service of the summons to enter appearance in the case had not been effected.

The respondent’s counsel raised a preliminary point whose thrust was that the applicant did not issue notice nor did he obtain the leave of the Court both of which were mandatory requirements under the Rules before the Rules in LN 164 of 1992 purportedly abolished them.

Held:

1. Where it is proved that there was a defective or no service of the process but which followed by unseemingly hurried court proceedings and orders, the High Court would invoke its jurisdiction of judicial review and make an order of certiorari, mandamus or prohibition in favour of an aggrieved party. The Court’s duty on such an application will only confine itself to the question of legality.

2. The remedy of certiorari is discretionary. It is available to the High Court for the purpose of ensuring that the lower courts do not abuse or exceed their powers and thereby make irregular and oppressive orders.

3. This application itself related to fundamental issues which had to be determined on merit.

Objection disallowed.

Cases

Matiba, Kenneth Stanley Njindo v Attorney General Civil Application No 790 of 1993

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order LIII

Advocates

Mr Gautama for the Applicant

Mr Gikandi for the Respondent

Republic v Chairman Mombasa Liquor

Licencing Court ex parte Amonde

High Court, at Mombasa June 2, 1994

Wambilyangah J

Miscellaneous Civil Application No 68 of 1994

Judicial Review – certiorari and prohibition – application for – meaning of judicial review – where no evidential basis is shown upon which application could have been rejected – where decision making was done within parameters of the law – whether judicial review order of certiorari and prohibition should be granted or denied.

The applicant was the proprietor of Le Cosy Cocktail Bar and Restaurant on plot 5322/1/MN leased from Sonia Arts. He was aggrieved by the decision of the Mombasa Liquor Licensing Court whereby Sonia Arts was granted a licence to operate a bar business in premises which was subsequently described by the Mombasa District Commissioner as “small structure identical to a kiosk at the entrance of the premises leading to Le Cosy Cocktail Bar and Restaurant”. He therefore applied for judicial review for orders of certiorari and prohibition in respect of the decision of Liquor Licensing Court.

Sonia Ltd in an affidavit replied by annexing several documents with minutes which showed that their application was considered and granted in a manner similar to other applications.

Held:

1. Judicial review is the process by which the High Court exercises supervisory jurisdiction over proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.

2. There was no evidential basis upon which Court could have rejected the application, since it had not been suggested that prior to this the application was not affixed at the notice board. No objection was lodged to the Court, nor was there any adverse report from the police, trade officer or health inspector.

3. The court’s jurisdiction in this application was specifically limited to the inquiry whether the applicant’s rights were infringed and whether they were so infringed by the misuse of power.

4. The decision making process in the present case was done within the parameters of the law.

Application dismissed.

Cases

1. Chief Constable of North Wales Police v Evans [1982] 3 All ER 141; [1982] 1 WLR 1155

2. Amin v Entry Clearance Officer, Bombay [1983] 2 All ER 864; [1983] 2 AC 818

Statutes

Liquor Licencing Act (cap 121)

Advocates

Mr Ochuka for the Applicant

Salim & others v Dock Workers Union & others

High Court, at Mombasa June 2, 1994

Wambilyangah J

Civil Suit No 261 of 1994

Civil Practice and Procedure – injunction – temporary injunction – application for – factors to be considered before granting temporary injunction.

The plaintiffs filed suit against the defendants alleging that the defendants had raised subscriptions by substantial percentage contrary to rule 3 of the Union’s Constitution. They further stated that the defendants had failed to hold an annual conference, they had failed to hold elections for the office bearers after their term of 5 years expired, that they failed to display the audited accounts in conspicuous manner etc. They therefore sought injunction prohibiting the defendants from dealing with the money and assets of the Dock Workers Union; and from levying the raised subscription from members. The 2nd defendant swore and filed two affidavits and he neither controverted plaintiff’s allegation nor did he offer an explanation of the circumstances which may have militated against the holding of the annual conference.

Held:

1. The requirement to hold the annual conference was both mandatory and fundamental.

2. Although the 2nd defendant swore and filed two affidavits in the application, he neither controverted plaintiff’s allegation nor did he offer an explanation of circumstances which may have militated against holding of the annual conference.

3. Special conference was held irregularly and its deliberations lacked the binding effect on its members.

Application allowed.

Cases

Giella v Cassman Brown & Co Ltd [1973] EA 358

Statutes

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

Advocates

Mrs Khaminwa for the Applicants/Plaintiffs

Mr Ochuka for the Respondents

[Ruling] Land Law-dispute as to ownership-where the suit properties were registered in the names of the plaintiffs having been purchased for valuable consideration from the original owners-defendant claiming that he had for a long time occupied these plots and that the Government should have allotted them to him instead of the original owners-injunction against the defendants barring them from trespassing-whether the plaintiff proved established a prima facie case