Catherine Muthoni Kagau v Kenya Catholic Secretariat

High Court, at Nairobi

December 13, 1995

Etyang, J

Civil Case No 677 of 1988

Employment – wrongful dismissal – where one is dismissed from employment on basis of condition which was not disclosed when entering into the contract – whether this qualifies as condition precedent – whether general damages should be awarded in a case of wrongful dismissal.

SUMMARY OF FACTS

The plaintiff, Catherine Muthoni Kagau, filed a case against defendant for breach of contract of service and claimed a liquidated sum of Kshs. 134,630/= plus general damages, and costs of the suit.

The plaintiff’s case is to the effect on 1.4.1986 she entered into a 3 year contract of service with the defendant as a secretary. She attested that at the time she entered into the said contract she had already been married under Kikuyu Customary Law. After working for awhile she requested for leave which was approved and was later told to rectify her marriage during her leave and be able to produce a marriage certificate on resumption. She stated that this however was not one of the conditions during her employment. On resumption she had not rectified her marriage whereupon she was dismissed from employment for gross misconduct.

The defendant’s case was to the effect that the plaintiff was guilty of gross misconduct under clause 5 (iii) and 10 (a) of her contract of service for failing to convert her marriage hence she is alleged to have disobeyed lawful and proper orders from her employer.

HELD

1. The condition was not a condition precedent since it had not been disclosed to the plaintiff at the time of entering into that contract of service.
2. Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered arising naturally.
3. Six months salary and house allowance awarded as general damages.

Judgment for the plaintiff

Deva Samat Keshwala & 10 others v Tolk Investments (K) Ltd & United Nations Food Programme

High Court, at Nairobi December 11, 1995

Githinji J

Civil Case No 2213 of 1991

Immunity – from proceedings – immunity of United Nations – whether United Nations is immune from suits and other legal process in Kenya.

This was an application by the second defendant asking the Court to review its dismissal order on the ground that the order contained errors of law apparent on the face of record.

The dismissed application sought an order that the name of the second defendant be struck out and that the suit against the second defendant be dismissed with costs on the ground that the second defendant was immune from the jurisdiction of court under the Privileges and Immunities Act, Cap 179. The thrust of the argument by counsel of 2nd defendant was that the law in which the Court relied on earlier did not qualify or derogate from rights given by statute.

Held:

1. United Nations enjoys immunity from suit and legal process in this country.

2. There is a clear error of law apparent on the face of the ruling, and that error had on the application of the law on state immunity (restructive doctrine) to diplomatic immunity.

Application allowed.

Cases

1. Irendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529; [1977] 1 All ER 881; [1977] 2 WLR 356

2. Ministry of Defence of the Government of United Kingdom v Ndegwa [1983] KLR 68; [1982 - 88] 1 KAR

Statutes

1. Privileges and Immunities Act (cap 179) sections 9, 12

2. Diplomatic Privileges (United Nations and International Court of Justice) Order (cap 179 Sub Leg)

3. State Immunity Act, 1978 [UK]

Advocates

Mr Le Pelley for the 2nd Defendant

David Kinyua Njiri v Peris Wanja Kinyua

High Court, at Nairobi December 1, 1995

Mwera J

Civil Appeal No 187 of 1990

Marriage - customary marriage – Kikuyu customary marriage – where there is evidence of payment of dowry – whether this is evidence of marriage – whether failure to perform ‘ngurario’ rite an indication that marriage has not been fully celebrated.

The respondent filed a suit for declaration that she had been married to the appellant for 6 years and that she was entitled to maintenance. The Court established this fact and ordered that she was entitled to Shs 1500 per month from the appellant for maintenance.

The appellant challenged this fact stating that the lower court was wrong in finding that he and the respondent were married, and further that an amount of Shs 1500 was without considering the financial means of the appellant.

Held:

1. There is evidence of payment of dowry which was accepted by the respondent’s side.

2. A full celebration including performing the ‘ngurario’ rite is not all that is to Kikuyu Customary Marriage, since the right has no time limit.

3. It was incumbent upon the appellant to show the learned trial magistrate that it could be hardship on him to pay the respondent Shs 1500.

Appeal dismissed.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Mr Kanyi for the Appellant

Ms Karua for the Respondent

Carton Manufacturers Ltd v Moses Bosire

High Court, at Nairobi November 30, 1995

Mwera J

Civil Appeal No 376 of 1992

Employment – loss of employment – where one is wrongfully dismissed – whether one entitled to salary in lieu of notice.

Damages – general damages – whether general damages can issue for loss and damage suffered due to wrongful dismissal.

The respondent sued the appellant for summarily terminating his services on 27.5.1990. The learned trial magistrate found for the respondent, and ordered that he gets 2 months salary in lieu of notice to terminate his services. He was also given 21 days salary in the month of April. The appellant was dissatisfied, hence this appeal.

The respondent had been suspected of theft from his employer. He was arrested in presence of a director of appellant. It’s alleged that when he came to duty after release on bond, he was told to keep away till the case was finalised, but was not taken back on finality of the case.

Counsel for appellant argued appeal on 3 grounds covering awards made to respondent, which was 2 months salary in lieu of notice, and Shs 30000 as general damages.

The respondent maintained that the judgment was proper and he even added on cross- appeal that general damages should be increased.

Held:

1. The respondent was wrongfully dismissed.

2. The lower court was wrong in finding that the notice to terminate respondent’s employment was two months.

3. The respondent was entitled to a month’s salary in lieu of notice.

4. No general damages issue in cases of this type for loss and damage suffered is to the extent of wages for period of notice.

Appeal allowed in part.

Cases

1. Gailey & Roberts Ltd v Ombanya [1974] EA 522

2. Nyaga v Air Zaire [1990] LWR 65

3. Waibi v Railways & Harbours [1971] EA 235

Statutes

Employment Act (cap 226) sections 14(5)(iii); 17(g)

C N K v R M K

High Court, at Nairobi

November 30, 1995

Mwera, J

Divorce Cause No 113 of 1995

Children – custody of – application of – by mother – where the matter is at an interlocutory stage – whether the court should determine this question at this stage.

Children – alimony and maintenance – where one prays for alimony and maintenance of herself and children – where no adequate evidence  has been presented before the court – whether the court should grant  this relief.

Summary of The Facts

The respondent in the petition, filed chamber summons seeking the custody of the 3 children of their marriage with petitioner, and further  seeking alimony and maintenance for herself and the children until the petition was determined. Further she prayed for injunction  to stop petition visiting matrimonial home, and that petitioner be allowed to release family car Reg. No KXQ to her for her use and children.

The petitioners case was to the effect that the Respondent had nowhere to take the children as she was staying with the sister. On the question of alimony and maintenance the counsel for the petitioner contented that the respondent had not filed any affidavits or documents relating to income for which alimony could be paid.

Held:

1. The matter was at an interlocutory stage and the cause is cautious that in making the ruling, it should not appear to be deterring the petition.
2. Alimony may not issue as no adequate evidence was before the court to determine it.

Chamber summons dismissed.

Gurdial Singh v Indian Spray Painters

High Court, at Nairobi November 24, 1995

Mwera J

Civil Appeal No 254 of 1991

Landlord and Tenant – notice to quit – where landlord gives notice to tenant to quit but tenant files case at Business Premises Rents Tribunal for determination – landlord fails to present plans, maps, sketches to prove need of space – where landlord fails to show serious intention to terminate tenancy and use space for period of 1 year or more – whether notice to quit should be held legal.

The appellant, the landlord of the suit premises served a notice of termination of tenancy under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments ) Act (Cap 301). He wanted the respondent to vacate the premises in which the appellant also ran business so that the appellant could expand his business and operate thereat for a period of not less than 1 year.

The tenant however did not comply with the notice and instead filed a reference to the Business Premises Rent Tribunal in which the tribunal upheld the respondents (tenant’s) reasons in the reference for declining to comply with the notice to terminate tenancy.

Held:

1. It was incumbent upon the appellant to present in evidence plans, maps, sketches, local authority approvals etc to the Chairman of Business Premises Rent Tribunal to prove that actually more space was needed.

2. The appellant did not show a serious intentin to terminate the tenancy and take over the premises for his own business for a period of 1 year or more.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Landlord and Tenant (Shops, Hotels and Catering Establishments Act (cap 301) sections 4(2); 7(1)(g)

Advocates

Mr Ngaira for the Appellants

Ms Janmohamed for the Respondent

L Vadgama v Arya Samaj

High Court, at Nairobi

October 30, 1995

Bosire, J

Civil Suit No. 450 Of 1988

Civil Practice and Procedure – pleadings – definition of pleadings.

Civil Practice and Procedure – summons – directions on a summons – whether directions on a summons subject for decision in application for dismissal of a suit under O. XVI rule 5 Civil Procedure Rules.

SUMMARY OF FACTS

The defendant moved the court for rules that the suit be struck out for being an abuse of the process of the court. That it is scandalous, frivolous or vexatious and or for want of prosecution. This application was brought under O. XVI rule 5, L. rule 1 and VI rule 13 (b) (c) and (d) Civil Procedure Rules.

The plaintiff (respondent raised an application contending that prayers for striking out should not have joined with one for dismissal of the suit for want of prosecution. In his view, the prayers were contradictory.

Counsel for the defendant on the other hand was of the view that O. VI rule 13 and O. XVI rule 5 of the Civil Procedure Rules make provision for the same remedy and therefore to him he did not think that there was conflict. He contended that the order merely provided different grounds for the remedy

HELD

1. Pleadings include a petition, a summons and the statements in writing of the claim or demand of any plaintiffs and of the defence of any defendant thereto and of the reply of the plaintiff to any defence or counterclaim of a defendant.
2. Directions on a summons are not subject to a decision in an application for the dismissal of the suit under O. XVI rule 5 Civil Procedure Rules.
3. Application under O. XVI rule 5 Civil Procedure Rules presupposes that the pleadings are proper therefore, application for dismissal of a suit for want of prosecution under O. XVI rule 5 is premature.

Application struck out