Civil Procedure - application for an injunction or stay of execution pending appeal - Law Society challenging decision allocating land on which a court is built to a private company - whether the Law Society had an arguable appeal.

Paula Waheti Muchina v Henry Wanjohi Muchina
Court of Appeal, at Nakuru October 1, 2003
Waki JA
Civil Application No NAI 178 of 2003
(An application for extension of time to file and serve Notice of Appeal
and Record of Appeal from the Judgment of the High Court at
Nakuru (Tanui, J) dated 18th June, 1992 in HCCC No 499 of 1990)

Civil Practice and Procedure – extension of time – to serve Notice of Appeal and Record of Appeal – where delay has been for 10 years – ignorance pleaded by appellant as reason for delay – mistake of advocate - intended appeal touching on matters of land - whether proper to grant extension of time.

Paula sued Henry, her step-brother, at the High Court claiming that he held their family’s land in trust for her. Henry denied this stating that he had bought the land from their father and that no trust existed. The High

Court agreed with him and dismissed Paula’s case with costs. 10 years after this dismissal she filed a Notice of Motion seeking extension of time to file an appeal. This was after Henry had sought to recover the costs of his suit and obtained orders for Paula’s committal to civil jail in default of payment. She pleaded ignorance of the law as to restriction of time. She however argued that the matters in question involved weighty issues of law and therefore the application should be allowed.

Held:

1. Ignorance of the law cannot amount to a defence.

2. Matters of land involve weighty issues of law. The appellant should therefore not suffer due to the negligence and slovenliness of her advocate.

3. Justice would therefore be enhanced when both parties knew with finality from the highest court in the land whether or not a trust existed in the disputed parcel of land.

Application allowed.

Cases

1. Igweta, Major Joseph Mweteri v Mukira M’Ethare & another Civil Application No NAI 8 of 2000

2. Mbogo & another v Mbuti Ngugi Civil Application No NAI 340 of 1996

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 4

Advocates

Mrs Odhiambo for the Applicant.

Mr Gethi for the Respondent.

Agip (K) Ltd & another v Mohideen Gilani

Court of Appeal, at Nakuru March 21, 2003

Kwach, Tunoi & Shah JJ A

Civil Appeal No 238 of 2001

(Being an appeal from the ruling and decree of the High Court of Kenya

at Nakuru (Mr Justice Rimita) dated 30th March 2001 in

HCCC No 509 of 2000)

Landlord and Tenant – lease agreement – termination of lease – lease providing for termination for any reason attributable to the lessor – lessor purporting to terminate lease without giving reason - whether termination proper - entitlement of an innocent lesee to quiet possession – Registered Land Act (cap 300) section 53(a).

Civil Practice and Procedure – pleadings - counterclaim – whether a counterclaim seeking identical relief to that in plaint warrants a dismissal.

The appellants were tenants of the respondent by a lease for a term of 30 years. The lease was for a fixed term and contained a clause for earlier determination. The respondent decided to terminate the lease but the appellants declined to honour the termination maintaining that the action was unlawful. The appellants, defendants at trial, raised a counterclaim for a declaration that the purported termination was null and void.

Held:

1. As provided in section 53 of the Registered Land Act, unless expressly provided in the lease, there is implied in every lease agreement an obligation binding on the lessor that so long as the lesee pays the rent and observes and performs the agreements and conditions contained in the lease, the lesee shall and may peaceably and quietly possess and enjoy the leased premises during the period of the lease without any lawful interruption from the lessor.

2. At the time of the respondent purported to terminate the appellant’s tenancy there was no allegation that they were in breach of any covenant or had failed to pay the agreed rent.

3. Moreover the clause on which the respondent relied to terminate the lease gave him no such power. The clause envisaged a situation where the lessor did something which would result in the leave being determined.

4. The High Court judge had erred in failing to consider the appellant’s averrment invoking the protection of section 53(a) of the Registered Land Act.

5. The fact that a counterclaim seeks identical reliefs to those in the plaint is not sufficient ground for dismissal. The fact that the respondent had sought a declaration that he had validly terminated the lease was no bar to the appellants asking for a declaration that the defendant had acted unlawfully.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1; order XXXIX

2. Registered Land Act (cap 300) section 53(a)

Advocates

Mirugi Kariuki & Co Advocates for the Respondent.

Sheth & Wathigo Advocates for the Respondent.

M W  G v R M K

Court of Appeal, at Nakuru March 21, 2003

Tunoi, Bosire & Owuor JJ A

Civil Appeal No 172 of 2002 (NAK 13/2000)

(Appeal from the Judgment of the High Court of Kenya at Nakuru

(Mr Justice Rimita) dated 4th February, 2000 in HCSC No 216 of 1996)

Succession – intestate succession–– proof of dependency–– proof of Cutomary Marriage.

Evidence – documentary evidence–– obtained during pendancy of the case – evidential value thereof.

Both the appellant (objector) and respondent claimed to be wives of the deceased. The appellant (objector) was appealing from the finding of the High Court that she was not a wife of the deceased and that her children had not been fathered by him. The appellant alleged that she was the customary wife of the deceased while the respondent contended that she was not. Both parties adduced evidence to prove and disprove the customary marriage.

Held:

1. The High Court judge, apart from properly evaluating the evidence, had made a categoric finding that he had observed the demeanour of the appellant and was satisfied that she was not telling the truth. This court found no reason to interfere with that finding.

2. There was no proof of a customary marriage between the deceased and appellant. The appellant was not a wife of the deceased.

3. Documentary evidence adduced to prove that the appellant’s children were children of the deceased was of no evidential value as the same was obtained during the pendancy of the case, for the purpose of the case.

Appeal dismissed with costs to the respondent.

Cases

1. Pandya v R [1957] EA 336

2. Gachigi v Kamau Succession Cause No 216 of 1996

3. Glannibanta, The v Transit (1875-76) 1 PD 283

Statutes

Law of Succession Act (cap 160) section 29

Advocates

Mr Githui for the Appellant.

Joseph Gitau Macharia v Republic

Court of Appeal, at Nakuru February 28, 2003

Kwach, Shah & Owuor JJ A

Criminal Appeal No 32 of 2002

(Appeal from a conviction and sentence of the High Court at Nakuru

(Ondeyo J) dated 5th October, 2001 in H C CR C No 23 of 2001)

Criminal Practice and Procedure – sentencing – instances when a court can alter a sentence - victim strangled to death by accused in the course - of rape - accused convicted for manslaughter and sentenced to 10 years imprisonment - whether sentence wrong or excessive.

The appellant was arraigned in the High Court of Nakuru on a charge of murder contrary to section 203 as read with section 204 of the Penal Code.

He appeared in court and offered a plea of guilty to a lesser charge of manslaughter contrary to section 202 (1) as read with 205 of the Penal Code. The appellant had held the deceased’s mouth and tied her neck with a belt in the process of raping her so that she was strangled to death.

He was sentenced to 10 years imprisonment and appealed on the grounds that the trial judge erred in law in failing to take into consideration his mitigation. Secondly he argued that his sentence was manifestly excessive and harsh.

Held:

1. That the Court does not alter a sentence on the mere ground that if a member of the court had been trying the appellant they might have passed a somewhat different sentence.

2. That this will not ordinarily interfere with the discretion exercised by a trial judge unless it is evident that the judge had acted upon some wrong principle or overlooked some material factors.

3. In the circumstances of this case, it could not be validly contended that the sentence of 10 years for such a heinous act was wrong in principle or manifestly excessive.

Appeal dismissed

Cases

Ogalo s/o Owuor v R (1954) EACA 270

Statutes

Penal Code (cap 63) sections 202(1), 203, 204, 205

Law Society of Kenya v Commissioner of Lands & 2 others

Court of Appeal, at Nakuru February 28, 2003

Kwach, Tunoi & Shah JJ A

Civil Application No NAI 181 of 2002

 (Application for an injunction or stay of execution from a Ruling and order of

High Court at Nakuru and delivered at Nairobi (Ombija J) dated 19th December, 2001

 in

High Court Civil Case No 464 of 2000.

Societies — suit by a society - Law Society of Kenya — nature of the society — whether the society should sue under Societies Act (cap 108) — suits by an ordinary society — requirement to invoke order 1 rule 8 of the Civil Procedure Rules.

Civil Practice and Procedure - parties to suits - statutory body established under an Act of Parliament - Law Society of Kenya Act (cap 18) - whether Law Society of Kenya can sue in its own name or it should sue as a society.

The Law Society of Kenya brought an application to maintain the status quo in relation to land upon which the Eldoret High Court buildings stood. The society was aggrieved by the allocation of that land to the second respondent herein.

Initially the superior court had ruled that the society had no locus standi to sue as it had done as it was not a party whose rights were infringed or injured.

Held:

1.The Law Society of Kenya is a statutory body created by an Act of Parliament, viz, the Law Society of Kenya Act (cap 18).

2.As it is a body with a common seal, the Law Society of Kenya need not sue as a society under the Societies Act. (cap 108)

3.An ordinary society wishing to sue would have to invoke the provision of order 1 rule 8 of the Civil Procedure Rules.

Application allowed.

Cases

No cases referred to.

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(b)

2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 8