Precast Portal Structures v Kenya Pencil Company Ltd & 2 others

High Court, at Nairobi December 1, 1993

Kuloba J

Civil Case No 969 of 1990

Civil Practice and Procedure – execution -attachment – application for raising of attachment – where judgment debtor sells suit land to objector after judgment is entered against judgment debtor in respect of the suit property, then claims he will suffer loss if application dismissed – whether the judgment debtor could be deemed to have an interest in the suit property – whether objection should be disallowed on this basis.

Civil Practice and Procedure – execution objection proceedings – release from attachment – factors Court considers for or against release of property from attachment.

This was application, brought by objectors seeking an order that the attachment made by the plaintiff on the property known as Nakuru Municipality Block 8/73 be raised and the prohibitory order registered against the title of the said plot be removed. The objector Mr Livingstone Atebe Marita said he bought the plot with Dilip Patel, in 1991 and obtained certificate of lease. He deponed therefore that the plot was wrongfully attached. On the other hand, Shantilal Shah, one of the directors of the plaintiff swore affidavit stating that the purported transfer of the property attached was not in good faith and was intended to defeat the anticipated decree against the defendant.

The judgment debtor contented that it had disposed off the plot, but nonetheless, further went on to state that if the plot was sold then the judgment debtor would suffer an irreparable loss.

Held:

1. The judgment - debtor’s claim that if the parcel of land were disposed off he would suffer irreparable loss, was unfounded since if it was time that the judgment - debtor company had sold the plot to other people, and it had no interest in the plot, then how was it to suffer irreparable loss by disposing what was no longer his.

2. A release from attachment may be made if the Court is satisfied that the property was not, when attached, held by the judgment- debtor for himself, or by some other person in trust for the judgment- debtor; or that the objector holds that property on his own account.

3. Where the Court is satisfied that ownership of the property changed whereby the judgment –debtor has been divested of the property in order to evade execution or the change is tainted with fraud, the court shall dismiss the objection.

4. The property was held on behalf of the judgment – debtor, or that it was sold in order to defeat the legal process, and that the objector was attempting knowingly to assist the judgment – debtor in the scheme. There was no bona fides in the transfer of leasehold from judgment debtor, only on paper.

Objection disallowed

Cases

No cases referred to

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXI rules 53, 57

2. Civil Procedure Act (cap 21) section 44

Advocates

Mr Joshi for the Applicant

Mr Sheth for the Decree Holder

Mr Kamera for the Respondent

Siteyia v Gitome & 3 others

High Court, at Nairobi December 1, 1993

Kuloba J

Civil Case No 4321 of 1991

Injunction – temporary injunction – factors to be considered before the grant of a temporary injunction.

Equity – principles of equity – where one fails to prevent a suit against him from maturing into a decree – diligence – whether one is entitled to any relief at equity.

This was an application for a temporary injunction to restrain the defendants from further charging, leasing, disposing of, selling or interfering with the suit premises until the suit was heard and determined. The applicant stated that the first defendant in a suit obtained judgment against him in a 1988 suit, for Kshs 346,000. The defendant, in execution of the decree attached and sold the plaintiff’s land by public auction to the second defendant, which auction was conducted by the 3rd defendant. The purchaser offered it as security to obtain loan.

The applicant was sued in the earlier case but did not file a and in default of defence, judgment was entered against him for the sum claimed.

The suit land was not about to be sold since it was used as a security to obtain loan and therefore the applicant did not show how he was going to suffer the alleged injury.

Held:

1. He who seeks equity must do equity, and that he who comes into equity must come with clean hands.

2. The applicant did not show what injury he was likely to suffer before the determination of the suit and whether such injury the parable unless injunction issued at once.

3. The applicant did not show to the Court what land he was talking about, its unique features, its special nature and whether any damages could not afford the applicant to get another land, or why the applicant could not do without the suit land.

4. The applicant did not show what expeditious steps he took to prevent the 1998 suit against himself, from maturing into a decree against him. The applicant was not diligent. Such conduct disentitled him to any relief at equity.

Application dismissed.

Cases

No Cases referred to

Statutes

No statutes referred.

Advocates

Mr Machira for the Applicant

Mr Gathenji for the second Respondent

Mr Gatonye for the first and third Respondent

Miss Kittony for the fourth Respondent

Githunguri & another t/a Githunguri & Collins Architects v Kenya Railways Corporation

High Court, at Nairobi November 30, 1993

Bosire J

Civil Suit No 2461 of 1992

Arbitration – arbitration clause – where parties enter into contract with a provision for the reference of any disputes to arbitration – where a party sues another and sued party files defence and replying affidavit – whether a party may rely on arbitration clause to contest jurisdiction of the Court to hear the case.

This was an application for summary judgment expressed to be brought under order 35 Civil Procedure Rules. The plaintiffs had made a liquidated demand for monies they said was the balance of sums due to them from defendants for services rendered to them in a building contract. The contract document had an arbitration clause respecting all disputes arising out of the contract.

The defendant appeared and filed a written statement of defence denying liability. In the application, they raised the issue of jurisdiction to entertain both the suit and the application relying on the arbitration clause.

Held:

1. Once a party sued delivers a pleading or takes a step in the proceedings, he denies himself the right to rely on the arbitration clause.

2. The defendant had not only filed a written statement of defence, but also filed a replying affidavit in opposition of the application for summary judgment. He was precluded from relying on arbitration clause, thus the court had jurisdiction to handle the case.

3. The plaintiff having chosen to base his fees on paragraph 9 (a) of 4th schedule, clause B of the Architects and Quantity Surveyors Act, he was not later to submit a claim based on final account worked under paragraph 9 (d), because he was precluded by dint of order 11 rule 1 of Civil Procedure Rules.

Judgment entered for the plaintiff.

Cases

Pitchers Ltd v Plaza (Queensbury) Ltd [1940] 1 All ER 151

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order II rule 1; order VI rule 9 (3); order XIV rule 1 (4); order XXXV rule 2

2. Arbitration Act (cap 49) section 6 (1)

3. Architects and Quantity Surveyors By-Laws (cap 525 Sub Leg) 4th schedule clause B 9(a), (d)

Advocates

Mr Kituku for the Defendant

T W N v S N K

High Court, at Nairobi November 5, 1993

Pall J

Civil Case No 2133 of 1992

Family law – husband and wife – matrimonial property – property acquired during marriage registered in the name of one spouse – applicant/wife seeking declaration that the property had been acquired by the joint efforts of both her and her husband – whether the applicant had contributed to the acquisition of the property – whether the applicant had made out a prima facie case for an injunction to restrain her husband from disposing the property – applicant having obtained an order of maintenance in separate proceedings - Married Women’s Property Act, 1882 section 17.

The applicant/wife took out an originating summons against the respondent/husband under the English Married Women’s Property Act, 1882 seeking a declaration that certain properties which she enumerated in her supporting affidavit had been acquired by the joint funds and efforts of herself and her husband during their marriage even though they were registered in the name of her husband.

The applicant also sought an injunction to restrain her husband from disposing the property and for orders that the husband should release a certain motor vehicle to her for her own use and that she should collect the rent from certain properties pending the determination of the proceedings.

Held:

1. The special nature of the relationship between a husband and wife gives rise to difficulties of proof when a marriage breaks down and the questions of ownership of property have to be decided. It is not to be expected that the transaction between them when they are happily married will be evidenced in the same way as ordinary commercial transactions.

2. In determining proprietary interests, the Court will therefore have regard to both direct as well as indirect contributions. For example, a wife who has helped her husband regularly and continuously in a business and has received no wages will be entitled to a share in the property acquired with the proceeds of the business.

3. In this case, there was evidence that all the properties owned by the respondent were acquired during wedlock. There was prima facie evidence that the applicant was more than a mere housewife. She had been contributing to the welfare of the family at first by farming and later in business.

4. So far as her prayer for an injunction was concerned, the applicant had a prima facie case with a probability of success that she had contributed to the acquisition of the properties owned by the respondent. It was only fair that the status quo should be maintained.

5. The other prayers sought by the applicant were in the nature of allowance by the husband for the interim maintenance of the applicant while the litigation was pending. As the applicant had obtained an order for her maintenance in separate proceedings for judicial separation, granting the applicant’s prayers would be tantamount to varying the maintenance order.

Prayer for injunction granted, other prayers dismissed.

Cases

1. Karanja v Karanja [1976-80] 1 KLR 389

2. Kivuitu v Kivuitu [1991] KLR 248

3. Razelos v Razelos (No 2) [1970] 1 All ER 386

Texts

Hailsham, Lord et al, (Eds) (1997) Halsburys’ Laws of England ; London: Butterworths & Co 4th Edn Vol XXII p 639 paras 1030, 1040

Statutes

Married Women’s Property Act, 1982 [UK] section 17

Tort-Damages- suit for damages arising from damage to residential houses on the plaintiffs parcel of land by the defendant- where the defendant denied responsibility-where the was a termination notice of the occupation licence which had not expired at the date of demolition-whether the plaintiff was entitled to damages for the loss she and her family sustained as result of the demolition- S.10, 42 and 78 of the Government Lands Act

..

Julius Kaloki Wambua v Republic

High Court, at Nairobi September 17, 1993

Oguk J

Criminal Application No 407 of 1993

Bail – application for – factors to be considered before grant of bail – whether the magnitude of the crime should be used as determinant factor in considering such application in grant of bail.

This was an application for the variation of bail terms imposed by the learned Chief Magistrate, wherein the applicant was charged with stealing by servant contrary to section 281 of the Penal Code. It was alleged that the accused stole 3127 filing cabinet, and locks from Mecol Ltd valued at Shs 2,501,600.

The application for bail was duly granted, and initially the applicant was imposed bail in the sum of Shs 500,000 with one surety of similar amount. Being unable to raise this, he applied before the same magistrate for variation of said bail and this time round the bail was reduced to Kshs 250,000 with 2 sureties of similar amount. Being unable again to raise the said amount, he applied to this Court to reconsider the amount of bail imposed by the Court below on him.

Held:

1. The High Court may, in any case, whether or not an accused person has been committed for trial, direct then the person be admitted to bail or that the bail required by a subordinate court or police officer be reduced.

2. It appeared that in fixing the amount of bail terms, the learned trial magistrate was unduly influenced by the value of the alleged stolen goods whereas the purpose of granting bail is preliminary to ensure the attendance of the accused to trial of his case.

3. The amount of bail /bond imposed by the Court was extremely high to warrant interference by the Court.

Bail terms set aside.

Cases

No cases referred to

Statutes

Penal Code (cap 63) section 281

Criminal Procedure Code (cap 75) section 123(3)

Advocate

Mr Mwiti for the Applicant

Mr Murungi for the Respondent/State

David Muola v East African Packaging Limited

High Court, at Nairobi August 9, 1993

Owuor J

Civil Suit No 2604 of 1988

Employment - wrongful dismissal from – damages for wrongful dismissal – assessment of damages.

The plaintiff in this case, Mr David Muola brought an action against his former employer East African Packaging Limited. He claimed among other things a two months salary in lieu of notice and general damages. He stated that he was employed by defendant as machine operator. He postulated that what led to his summary dismissal was an allegation that he had been given by mistake salary of another employee. He denied this and even refused to pay it back in 2 monthly instalments, the arrangement the employer had made. He was therefore dismissed from employment hence this suit.

Held:

1. In the absence of any evidence to the contrary, the plaintiff proved that his dismissal was unlawful and he was therefore entitled to damages.

2. The plaintiff did not lead evidence as to what benefit terminal or otherwise he was denied by virtue of his summary dismissal.

Plaintiff entitled to two months salary as special damages, and 3 months salary as general damages.

Cases

1. Southern Highland Tobacco Union Limited v Mc Queen [1960] EA 490

2. East African Airways v Knight [1975] EA 165

Statutes

Employment Act (cap 226) section 17(g)

Advocates

Mr Kitonga for the Plaintiff

Kabansora Limited v The Standard Limited

High Court, at Nairobi August 6, 1993

Owuor J

Civil Case No 3094 of 1988

Defamation – libel – a publication concerning a person whose name is not given – whether one will have cause of action if he proves words concerned him.

Defamation – fair comment – malice - whether plea of fair comment can succeed where there is malice.

Damages – proof of damages– whether a corporation needs to prove special damages or financial loss to recover damages for defamation.

This suit related to an article published in the Standard newspaper on 14th February, 1988, the alleged offending part stating that “A mill processing animal feed and other cereals is posing hazard to aircraft as birds get attracted to the site.” “The mill, situated along old airport road started operating last September despite objections by the Directorate of Civil Aviation.”

“The mill was started by Sansora Group of Companies but was sold later to an Asian firm.”

The plaintiff was not mentioned by name but Mr Nyachae claimed that the suit had been properly brought.

The question was whether the article complained of was defamatory of the plaintiff and whether fair comment and qualified privilege could be used here as defences.

Held:

1. A hurtful statement may be made concerning a person whose name is not given and the plaintiff will have a cause of action if he proves that there has been a publication of and concerning him of words which are defamatory of him.

2. The Court is satisfied having regard to the evidence of Mr Nyachae that the suit was properly brought.

3. An allegation that the mill started operation despite objections by Director of Civil Aviation imputed that the plaintiff commenced operation in an unlawful or otherwise irregular manner as he did not have the consent from the Civil Aviation Authority, which is prima facie defamatory to the plaintiff.

4. The Court is not satisfied on the material before it that this was a case of fair comment at all. There was nothing factful on which a fair comment was based.

5. To say that the ownership of the Company had changed hands was a clean attempt to impute some sinister or dishonourable intentions and conduct on the plaintiff company.

6. There was malice on the defendant’s part and this could not protect it on the issue of fair comment.

7. As to the finding of malice, the qualified privilege was destroyed.

8. A corporation does not need to prove special damages or financial loss to recover damages for defamation to its business reputation in a way calculated to injure its reputation in its trade or business.

Judgment for the plaintiff.

Cases

Kadhi, Joe v Isaac J Arimi Civil Appeal No 94 of 1984

Texts

Lewis, P (1981) Gatley on Libel and Slander London: Sweet and Maxwell 8th Edn

Statutes

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

Advocates

Mr Noad for the Defendants