Thomas Nyaiburu Nyakango v Diamond Trust of Kenya Ltd

High Court, at Eldoret October 5, 1993

Aganyanya J

Civil Suit No 142 of 1989

Contract – hire purchase agreement – breach of – where one terminates hire purchase contract on account that the other party did not use the vehicle as per contract – where there was no provision stating that that other party was barred from using vehicle as a matatu – where there was no evidence adduced to support the allegation – whether the allegation was hearsay – whether one is justified to terminate the contract in this claim.

Damages - Special damages- award of - where party does not plead special damages in his plaint but does so in his written submissions - whether such party entitled to the special damages sought.

On 16th June, 1988, the plaintiff entered into hire purchase agreement to purchase motor vehicle Registration No KZB 139, Nissan Sahara pick-up from the defendant. The total purchase price was Kshs 273,400 whereby the plaintiff deposited a sum of Kshs 109,000 and was to pay a balance by instalments of Kshs 8,187/55 per month effective from 2nd July, 1988. The plaintiff collected the vehicle for his own business.

On 8th August 1989 the vehicle was repossessed and the plaintiff was informed that he had breached one of the conditions of hire purchase agreement by using the vehicle as a matatu. This was conformed by a letter dated 21.8.1989. However in another letter dated same day, the defendant told the plaintiff they have repossessed the vehicle due to his failure to meet the instalments as agreed in the hire purchase agreement, a result of which they intimated to him that they had terminated the contract forthwith.

The defendant gave the plaintiff an option of repurchasing the vehicle, but attempts by the plaintiff to pay instalments were refused by defendant.

The plaintiff contended that his payments were upto date and it was after the vehicle was repossessed that he was unable to raise the instalments. He contended that he had purchased road licence and insurance for the motor vehicle and therefore that he was not indebted to the defendants as at that date. He contended that the only breach he was alleged to have committed was the vehicle “illegally used as a matatu”.

The plaintiff’s contention was that there was no specific agreement that the plaintiff would never use the vehicle as a matatu, and furthermore that there was no evidence adduced that the vehicle was found carrying passengers at the time of possession.

Held:

1. There was no specific agreement that the plaintiff would never use the vehicle in question as a matatu.

2. There was no evidence adduced that the vehicle was found carrying passengers at the time of repossession.

3. A claim of special damages must be expressly claimed in the pleadings with full particulars of how it was made out. Since no special damages were pleaded in the plaint, then no such damages could be awarded.

Judgment awarded to the plaintiff.

Cases

No cases referred to

Statutes

No statutes referred

Texts

Bullen, E, Leake sm, (1975) Bullen and Leake & Jacobs Precedents of plead­ings, London: Weet and Maxwell 12th Edn p 379

Advocates:

Onyinkwa for Plaintiff

Kasamani for Defendant

Securicor Courier (K) Ltd v Owino

High Court, at Eldoret August 24, 1993

Aganyanya J

Civil Appeal No 11 of 1992

(From the original Civil Suit No 76 of 1992 of Principal Magistrate’s

Court at Bungoma - D O Ondabu RM)

Civil Practice and procedure – setting aside – application for – where a party to proceedings delays in filing defence – where a party argues that the delay was not deliberate – discretion of the Court in setting aside interlocutory judgment – whether the Court can set aside exparte judgment on this basis – Civil Procedure Rules (cap 21) order IXA rule 10.

This is an appeal against the ruling of Mr Ondabu, Resident Magistrate Bungoma wherein he dismissed an application to set aside the ex parte judgment in Civil Case No 76 of 1992 delivered on 17.3.92.

On 17th March, 1992 the plaintiff had filed a suit on 21.1.92 claiming from defendant both general damages amounting to Kshs 73,000 and Kshs 1800 special damages plus costs of the suit and interest for breach of contract. This was out of claim by respondent that on 28th November, 1991. She had entrusted a letter containing important personal documents with the personnel of the appellants branch office in Bungoma for delivery to her husband in Nairobi, which letter was not delivered to the said husband.

The defendant failed to enter appearance despite the summons being served. The case was heard exparte on 25th February, 1992 and judgment delivered in favour of respondent. The appellant applied that this judgment be set aside but the same was dismissed on 17.3.1992 hence the present appeal.

Held:

1. Where judgment has been entered under order IXA rule 10 of the Civil Procedure Rules the Court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.

2. The conduct on the part of the Managing Director was not designed to deliberately shy the company away from its obligation or to obstruct or delay the course of justice on the face of it.

Appeal Allowed.

Cases

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

2. Shah v Mbogo [1967] EA 116

3. Mbogo v Shah [1968] EA 93

4. Shabir Dim v Ram Parkash Anand (1955) 22 EACA 48

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order IXA rule 10

Advocate

Mr Anassi for the Appellant

Mr Onchiri and Onyinkwa for the Respondent

Columbus Kiptum Kiprono v Republic

High Court, at Eldoret June 15, 1993

Aganyanya J

Criminal Appeal No 103 of 1993

(From the Original Conviction and Sentence in Criminal Case

No 6039 of 1991 of the Principal Magistrate’s Court at Eldoret -

M A Opondo (Mrs), RM)

Evidence – corroboration – convicting on uncorroborated testimony – whether it is safe to convict on uncorroborated testimony of the complainant in sexual offences – whether a selfwarning by the court before taking uncorroborated evidence sufficient – how such warning should be administered.

The appellant was charged with defilement of a girl contrary to section 145 (1) of the Penal Code on 27th August, 1991 at Macharia Estate in Uasin Gishu district. The complainant’s evidence was that she had gone to fetch water in a communal tap, when the appellant approached her and pulled her to the bathroom where he had carnal knowledge of her. She waited the following morning before she told her mother. The complainant’s father tried searching the appellant, but he could not be found.

He was arrested on 11th September, 1991 and charged the following day for defilement. The complainant testified that apart from herself, no one else was present at the scene.

In his defence, the appellant stated that he was at home upto 1.30 pm then proceeded to his place of work at 2 pm, so he contended that at the time of the alleged offence, he was at work in Rivatex.

Held:

1. In all sexual offences even where the complainant is an adult, it would be unsafe to convict the appellant solely on the evidence of the complainant without corroboration.

2. A trial judge should warn himself and the assessors of the danger of acting on the uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. The warning required here is not a formality and it must not degenerate into purely technical exercise, or worse, into mere utterances of words.

3. The magistrates’ warning of importance of corroboration in sexual offences was not sufficient because such warning should be accompanied by other words which must show that the evidence adduced by the complainant is fully supported by other evidence implicating the appellant.

4. Where the appellant went out of his way to prove his alibi, more caution had to be taken before convicting him on the complainants uncorroborated testimony.

Appeal allowed

Cases

1. Chila v Republic [1967] EA 722

2. Margaret v Republic [1976 - 80] 1 KLR 334

Statutes

Penal Code (cap 63) section 145(1)

Advocates

Wambua, for the Respondent / State

Joseph Koech Yego  v Republic

High Court, at Eldoret May 18, 1993

Aganyanya J

Criminal Appeal No 176 of 1992

(From Original Conviction and Sentence in Criminal Case No 8230

of 1991 of the Principal Magistrate’s Court at Eldoret M A Opondo, RM)

Evidence – corroboration – where a trial magistrate after warning herself of convicting on uncorroborated evidence proceeds to convict – grounds on which such a conviction may be challenged.

Criminal law – impersonation - personating a person employed in civil service – definition of the offence – appellant personating a police officer – whether this constitutes a misdemeanor.

The appellant was charged by Resident Magistrates Court at Eldoret with 2 offences, namely indecent assault on a female contrary to section 144(1) of the Penal Code and personating a public office contrary to section 105(b) of the Penal Code.

He was alleged to have visited the house of Jane Chepkemoi Chepkwony (PW1) on night of 24.12.1991 at 3 am at Buheba, Uashin Gishu District where he represented himself as police officer looking for chang’aa brewers. He searched the house, saw a sufuria of which he thought was used for brewing busaa, threatened to arrest complainant, marched her out of the house to take her to Soy Police Station. On the way, he unlawfully and forcefully had carnal knowledge of Jane and released her. She reported the matter to members of public and the accused was arrested.

The defence case was that the appellant had not committed whatever was being accused for and that the complainant was first picking on him.

Held:

1. In sexual cases the judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the complainant, but having done so, he may convict in the absence of corroboration if he is satisfied that complainant’s evidence is truthful. If no such warning is given, the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice

2. The complainant never lost any opportunity and the immediate report to the neighbours and PW2 could be construed as sufficient corroboration of what actually happened to her the previous night.

3. Where any person who falsely represents himself to be a person employed in the public service, and assumes to do any act or to attend in any place for the purpose of doing an act by virtue of such employment, is guilty of misdemeanor.

4. The appellant’s allegation that the complainant had a grudge with him did not hold any water because the two did not know each other before and there would have been no reason for the grudge.

Appeal dismissed.

Cases

Chila v Republic [1967] EA 722

Statutes

Penal Code (cap 63) sections 105(b); 144(1)

Advocates

Kabitu for the State/Respondent

Wasike v Khisa

High Court, at Eldoret March 18, 1993

Aganyanya J

Civil Appeal No 34 of 1992

(From the Original Civil Suit No 67 of 1990 of Senior Resident Magistrate’s Court at Kitale – C C Kanyangi, SRM)

Limitations of Actions - action to recover land - adverse possession - meaning of - when does time start to run in claim of adverse posession - where one sought alternative remedies including arbitration - whether it can be said that the case was filed in court within the required period - Limitations of Actions Act (cap 22) section 7.

Civil Practice & Procedure - jurisdiction - suits for recovery of immovable property or partitioning of the same - party opposing hearing of the matter on ground that the Senior Resident Magistrate’s Court lacked geographical jurisdiction to hear the matter - where such suits should be instituted - whether Senior Resident Magistrate’s Court has jurisdiction to entertain such suit.

Civil Practice & Procedure - preliminary issue - definition of preliminary issue - issues of limitation of actions and jurisdiction - whether such issues constitute preliminary issues - whether preliminary issue must always be an issue of law - whether evidence admisible when preliminary issue is raised.

On 27th March 1990 the respondent filed a suit against the appellant and prayed for a declaration that plot No 79 Naitiri Settlement Scheme measuring 37 acres belonged to him and that the appellant be restrained by a permanent injunction from occupying and using 7 acres thereof.

When the case came up for hearing on 20th February, 1992, the counsel for the appellant raised two preliminary issues, namely that the course of action was time barred by the Limitations of Actions Act and that the Court of the Senior Resident Magistrate Kitale had no jurisdiction to entertain the case as the suit land was situated in Bungoma District.

It was contended on behalf of the defendant that the action arose in 1967 when the appellant was alleged to have encroached on the portion of land in dispute and that since that time, 12 years had passed within which the respondent should have filed a suit in respect thereof.

The learned Senior Resident Magistrate made a ruling in which he found that there was no time bar the reason being that this was a boundary dispute and that since the respondent had sought the remedy from other avenues including arbitration, then the case was filed in Court within the period required by section 7 of the Limitation of Actions Act cap 22 Laws of Kenya.

As to the preliminary point over jurisdiction, the learned magistrate said that his Court had jurisdiction because most of the cases heard before him were from all parts of the country and that if he was to restrict himself to hearing cases emanating from Trans Nzoia District alone, then the Courts would stall. The defendants were not satisfied with the ruling hence this appeal.

Held:

1. Issues of limitation and jurisdiction are points of law of considerable magnitude as they go to the root of the matter raised in the suit.

2. A preliminary point is and must always be an issue of law. It must be considered on the basis of the allegation on the pleadings and on the assumptions that they are true.

3. If one relies on adverse possession over a piece of land time only starts running in favour of the defendant, when he proves that at the time he/she had an effective right to recover possession thereof from the opposite party otherwise if there’s an indication that he/she was occupying that land by some kind of permission or licence which had not been determined, then the period of limitation does not run.

4. It appeared that each of the parties was laying a claim to the 7 acre portion in dispute in which case the issue of adverse possession where one party should claim the Limitation of Actions Act would be difficult to apply at the stage the counsel for the appellant raised the point.

5. Considering that the Court of the Senior Resident Magistrate has jurisdiction throughout Kenya, it was not appropriate to decide the case on preliminary issue raised over jurisdiction at that stage.

Appeal dismissed.

Cases

1. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696

2. Odinga, Raila v Francis Ole Kaparo & another Civil Suit No 394 of 1993

3. Wambugu v Njuguna [1983] KLR 172; [1982 - 88] 1 KAR 217

4. Githu v Ndeete [1984] KLR 776

5. Hosea v Njiru & others [1974] EA 526

Statutes

1. Limitations of Actions Act (cap 22) section 7

2. Civil Procedure Act (cap 21) section 12

Advocates

Mrs Sichale for Appellant