Kenya Commercial Bank Ltd v Osebe

Court of Appeal, at Kisumu

December 29, 1982

Law, Potter JJA & Hancox Ag JA

 Civil Appeal No 60 of 1982

Civil Practice and Procedure - originating summons - matters determinable by originating summons - whether damages may be awarded on such an application - object of the originating summons procedure - Civil Procedure Rules Order XXXVI.

Land - charge - exercise of statutory power of sale over charged land - chargor’s interest therein - sale and market value - whether sale ignorant of chargor’s interest - Registered Land Act (Cap 300) Section 71(1),(3).

Appeal - grounds of appeal - new facts raised at appeal - absence of fair notice on new issue.

The respondent charged his land to the appellant bank to secure a loan of Kshs 30,000 on April 25, 1978, at which time the bank’s own valuation of the land was Kshs 93,000. The respondent fell into arrears but endeavoured to reduce his indebtedness up to Kshs 8,027.20 after the bank had expressed its intention to exercise its right of sale of the property. As the respondent was unable to clear the outstanding balance, the property was sold by auction at the instance of the appellant bank and the sale realized Kshs 20,000. About a year after the auction sale, the buyer of the land sold it for Kshs 180,000. In the meantime, a valuer appointed by the respondent had placed the value of the property at Kshs 160,000. When the respondent tried to lodge a caution against any dealings with the land on the grounds that he had filed an originating summons for the purpose of determining the validity of the auction sale, he discovered that the new owner had charged the same property to the same appellant bank for Kshs 200,000, less than six months after the discharge of the charge against him. The respondent filed an amended originating summons alleging fraud, a conspiracy between the bank and the two buyers to swindle him out of his property, and asking that the auction sale be set aside with a request for a determination of whether he had suffered damage. The respondent also made an express claim for damages. The judge held that the bank had ignored the rights of the chargor and purported to award him Kshs 180,000 by way of damages. The appellant appealed.

Held:

1. The procedure of originating summons is intended for simple matters, and enables the court to settle them without the expense of bringing an action. The procedure is not intended for determination of matters that involve a serious question. The procedure should not be used for the purpose of determining disputed questions of fact.
2. The procedure of originating summons is designed for the summary or ad hoc determination of points of law, construction or certain specific facts or for obtaining of specific directions of the court such as trustees, administrators or the courts execution officers.
3. The question of whether or not the sale was at an under value and whether it was mismanaged, are disputed matters of fact and should not be resolved on affidavit evidence upon an application by way of originating summons.
4. It is not permissible for matters and issues not raised at the trial court to be raised for the first time on appeal. In this instance, permitting an issue to be raised for the first time in reply to the appellant is improper, as the appellant had no fair notice of this issue. Such an issue should not be decided on appeal.
5. There is no power conferred on a judge to award damages on an originating summons.
6. The right of appeal conferred by Section 72 of the Civil Procedure Act (Cap 21) is statutory and confined to the grounds stated in subparagraphs (a), (b) and (c) thereof.
7. While Section 77(3) of the Registered Land Act (Cap 300) refers to a chargor’s remedy in damages, it does not provide for the method by which those damages may be claimed.
8. The Court of Appeal can and must consider a point going to jurisdiction even though it was not raised before the judge.
9.  (Obiter Law JA) The fee payable in lodging a document in the appeal registry is due for payment when the document is lodged but where the fee is not paid out of an oversight on the part of the advocate, the subsequent acceptance of that fee by a sub-registry cures the original failure to pay.
10.  (Obiter Hancox Ag JA) “My reluctance stems from the consideration that the Judge obviously felt disturbed, as I do, at the incontrovertible facts that the respondent’s property, despite his strenuous efforts to repay, was sold by auction for about a tenth of the sum which the same Bank, barely a year later, saw fit to lend on the security of the same property to a subsequent owner. To say that all the Bank was required to do was virtually to cover its own outstanding debt is an attitude which I find not only unrealistic, but also harsh, oppressive and uncompromising in the circumstances of the case. Had it not been for the point of jurisdiction to award damages, the Judge in my view delivered a very good judgment, fully sensitive to the rights of the parties and to the issues before him; and, as I have said, his mind was never directed to this question, as it should have been. The Bank’s conduct has to my mind been shown in a most unmeritorious light, and the judge’s finding that it did not have sufficient regard to the chargor’s interests on the sale is certainly arguable.”

Appeal allowed.

Cases

1. Kennedy v De Trafford [1896] 1 Ch 762 Referred
2. In Re Sutcliffe [1942] 1 Ch 453 Referred
3. Vidyarthi v Ram Rakha [1957] EA 527 Referred
4. Ramji Kulsumbhai v Ramji’s Executors and Others [1957] EA 699 Applied
5. Tanganyika Farmers Association Ltd v Unyamwezi Development Corporation Ltd [1960] EA 620 Applied
6. Saggaf v Algeredi [1961] EA 767 Applied
7. Bhari v Khan [1965] EA 94 Applied
8. BAT Kenya Ltd v Express Transport Co Ltd [1968] EA 171 Referred
9. Official Receiver v Sukhdev [1970] EA 243 Applied
10. Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] 2 All ER 633 Referred
11. Industrial & Commercial Development Corporation v Kariuki & Gatheca [1977] KLR 52 Applied
12. Balchin v Buckle [1982] 79 LS Gaz 921 Referred
13. Standard Chartered Bank Ltd v Walker [1982] 3 All ER 938 Applied
14. In Re Giles (2) (1880) 43 Ch D, 391 Referred
15. Salehmohamed Mohamed v PH Saldanha (3), Kenya Supreme Court (Mombasa) Civil Case No 243 of 1953, (unreported) Applied

Texts

Simonds, Viscount (Rt Hon), et al, (Ed), Halsbury’s Laws of England, Butterworths & Co: London, 3rd Edn (1952 - 64) Vol XXVII para 567

Statutes

1. Civil Procedure Act (Cap 21) Section 72(1)(a), (b), (c)
2. Civil Procedure Rules (Cap 21 Sub Leg) Order XXXVI rules 3A, 10
3. Indian Contract Act, 1872, Section 139
4. Court of Appeal Rules (Cap 9 Sub Leg) rule 103(1)
5. Registered Land Act (Cap 300) Sections 74; 77(1), (3)

Advocates

RO Kwach for Appellant

JO Soire for Respondent

Lamek Omboga v Republic

Court of Appeal, at Kisumu December 8, 1982

Law, Potter JJA & Hancox Ag JA

Criminal Appeal No 122 of 1982

Criminal Practice and Procedure - charge - misjoinder of charges – when misjoinder can occasion injustice - defective particulars - failure to have separate counts - offences of fraudulent false accounting and stealing by person employed in public service contrary to sections 331 and 280 of the Penal Code (cap 63) - when a general deficiency can be properly charged - deficiency of separate thefts - whether separate counts should be drawn.

Criminal Practice and Procedure - charge - withdrawal of – withdrawal by state counsel - whether court bound by counsel’s opinion.

The appellant, an account clerk, was charged in the district magistrate’s court with two counts: fraudulent false accounting contrary to section 331 of Penal Code (cap 63) and stealing by a person employed in the public service contrary to section 280 of the Penal Code. The appellant pleaded not guilty. No objection was taken to the form of the charges at the trial. He was convicted on both counts and sentenced to two concurrent terms of one year’s imprisonment. The appellant appealed to the High Court.

The judge, in dismissing the appellant’s appeal, noted that the first count was defective in that the appellant was alleged to have made a number of false entries and should have been charged separately for each false entry, but he held that no prejudice or failure of justice resulted. He did not comment on the second count which charged the appellant with stealing on a general deficiency made up of separate acts of theft over a period of time. He appealed to the Court of Appeal through his counsel arguing that since one counsel for the respondent did not support the conviction, the court should have allowed the appeal. Further, it was argued the charges were defective and the learned magistrate had misdirected himself in his judgment.

Held:

1. Where an accused person is alleged to have falsely accounted by making false entries, there should be a separate count for each false entry.

2. An omnibus charge relating to false accounting over an extended period of time on different occasions is incurably bad.

3. Although it is legally permissible to charge a general deficiency under section 280 of the Penal Code, it is inappropriate where the deficiency is made up of separate thefts committed on different occasions each capable of proof (Republic v Tomlin (1954) 38 Cr App R 82).

4. Injustice will be occasioned where evidence is called relating to many separate acts all contained in one charge because the accused cannot possibly know what offence exactly he is charged with.

5. The fact that the state counsel does not support a conviction does not bind the court and neither does counsel’s opinion as to the merits of the appeal.

Appeal allowed.

Cases

Republic v William John Tomlin (1954) 38 Cr App R 82

Texts

Mitchell, SG, et al, (Eds) (1979) Archbold: Criminal Pleading, Evidence and Practice 1979, London: Sweet & Maxwell Ltd, 40thEdn para 48(b) p 49

Statutes

Penal Code (cap 63) sections 331, 280

Advocates

Mr Okoth for Appellant

Mr Mugu for Respondent

Oyoko v Republic

Court of Appeal, at Kisumu

December 6, 1982

Law, Potter JJA & Hancox Ag JA

Criminal Appeal No 8 of 1981

Criminal law - burglary, stealing, forgery, uttering false doc uments, obtaining goods by false pretences - cheque book stolen in a burglary - accused identified as person using the stolen cheques to obtain goods - accused convicted - accused’s appeal to High Court summarily dismissed - second appeal to the Court of A ppeal.

Criminal Practice and Procedure - appeal - first appeal against conviction to the High Court dismissed summarily - second appeal - whether accused’s conviction proper - wheth er any points of law raised for consideration in second appeal - matters with which the court is concerned in a second appeal.

Soon after a cheque book was stolen in a burglary, the stolen cheques were used to obtain goods from traders. The person using the cheques was identified in court by two witnesses as being the appellant. In addition, a Government Document Examiner certified that the signature on some of the cheques was in the appellant’s handwriting. The appellant was convicted by a magistrate’s court of burglary and stealing and of seventeen counts of forgery, uttering false documents, obtaining goods by false pretences and other offences. His appeal to the High Court was summarily dismissed and he appealed to the Court of Appeal. Held:

1. The judgment of the learned magistrate was well reasoned and convincing and left no doubt that the appellant was properly convicted.

2. No points of law fit for consideration on a second appeal were raised.

3. The court is not concerned with the severity of the sentence in a second appeal.

4. In any case, the total sentence and punishment seemed reasonable.

Appeal dismissed.

Cases

No case referred to. Statutes

No statute referred to.