Rogan-Kamper v Lord Grosvenor (No 3)

Court of Appeal, Nairobi 13th December 1977

Law JA (in chambers)

Costs - taxation - reference to judge - jurisdiction to alter quantum on reference - sum allowed manifestly excessive - instructions fee for advocate and brief fee reduced.

After consideration of the size of brief fees and instructions fees allowed in comparable cases and after making allowance for the effects of inflation the judge on a reference from a decision of a taxing master reduced the instructions fee from Shs 12,000 to Shs 8,000 and the brief fee from Shs 14,000 to Shs 10,000 on the grounds that the amounts allowed had been manifestly excessive.

Dictum of Buckley LJ in In the Estate of Ogilvie, Ogilvie, v Massey [1910] p 243, 245, Standard Bank Ltd v Mehotoro Farm Ltd (unreported), and Block v Commissioner of Income Tax (unreported) applied.

Cases referred to in judgment:

Block v Commissioner of Income Tax (unreported) Civil Appeal 11 of 1974.

D’Souza (SR) v CC Ferrao [1960] EA 602, EACA.

Grosvenor v Rogan-Kamper [1974] EA 446, EACA.

In the Estate of Ogilvie, Ogilvie v Massey [1910] P 243, CA Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No 3) [1972] EA 162, EACA.

Standard Bank Ltd v Mehotoro Farm Ltd (unreported), Civil Appeal 54 of 1972.

Reference for taxation

Lord Robert Grosvenor, the respondent in Rogan-Kamper v Lord Grosvenor (No 2), page 123 ante, applied by reference to the judge for a reduction in the costs allowed to AW Rogan-Kamper, the appellant, by a taxing officer.

K A Fraser (instructed by Messrs Hamilton Harrison & Mathews) for the Respondent.

MR Pabary for the Appellant.

Morgan v Stubenitsky

Court of Appeal, Nairobi 10th November 1977

Sir James Wicks CJ, Wambuzi & Law JJ A

Sale of land - agreement - memorandum or note in writing – essential terms of agreement - ambiguity as to who was tenant under lease – no agreement as to duration of lease - Law of Contract Act (cap 23), section 3(3).

The appellants advertised their house in Nairobi in a newspaper at a rent of £175, but did not specify the duration of the lease offered. The respondent wrote to them, stating that he was employed by the World Bank and expected to stay in Nairobi for at least two years; he also stated that his employer would pay the rent on a six-month advance basis. The respondent’s wife called round to see the house shortly afterwards. She liked it and she wrote at the foot of the respondent’s letter that she agreed to take the house on 1st June and signed her name. The second appellant, who had shown her around the house similarly noted on the letter that she had agreed to let the house. She signed her name. There was no discussion, however, about the duration of the lease. Later, the respondent changed his mind. The appellants claimed damages from him for a breach of contract, but he pleaded that, in the absence of an agreement in writing in accordance with section 3(3) of the Law of Contract Act, there was no enforceable contract between them.

Held:

That there was no agreement in writing satisfying the requirements of section 3(3) of the Law of Contract Act since (per Wambuzi and Law JJA ) the alleged agreement was ambiguous as to who was intended to be the tenant and there was also uncertainty as to the duration of the lease, or (per Sir James Wicks CJ) it was impossible to state that the respondent had undertaken to pay the rent and, accordingly, he was not a party to the consideration.

No cases were referred to in the judgments of the Court of Appeal.

Appeal

MJE Morgan and Mrs Dorris Morgan appealed to the Court of Appeal (Civil Appeal No 30 of 1977) from the decision of Kneller J in the High Court, Nairobi on 13th January 1977 (Civil Case No 282 of 1975 ) in which he dismissed the appellant’s claim for damages from the respondent to this appeal, F Stubenitsky. The facts are set out in the judgment of Law JA.

P Le Pelley (instructed by Messrs Hamilton Harrison & Mathews) for the Appellants.

WS Deverell (instructed by Messrs Kaplan & Stratton) for the Respondent.

Michael Mukundi Thiong’o & another v The Republic

Court of Appeal for East Africa, Nairobi 27th October 1977

Wambuzi P, Law V-P & Musoke JA

Criminal law- accomplice - common purpose - abandonment of common purpose - intention - timely communication of intention – demanding property with menaces - demand for specific sum made after appellant had left premises.

The appellant and two other police officers arrested O at his restaurant. The appellant and one of the officers intimidated O in order to extort money from him. They went to a store where O handed an envelope containing Shs 100 to each of them. The appellant looked inside his envelope and walked out of the store in disgust. The other police officer, however, remained and demanded that O should pay Shs 5000. The appellant and the other police officer were convicted of demanding property with menaces and their appeals to the High Court were dismissed.

On appeal to the Court of Appeal for East Africa, the appellant maintained, inter alia, that he had withdrawn from the common purpose before the Shs 5000 was demanded.

Held:

dismissing the appeal, that the High Court had not erred in upholding the finding of the appellant’s guilt; the abandonment of a common criminal purpose required to be evidenced by a timely communication to the other party to the common purpose of the intention to abandon; and, although the appellant had had the opportunity to indicate to his companion that he had abandoned their common purpose, he had not done so.

R v Whitehouse (alias Savage ) [1941] 1 WWR 112, British Columbia

CA, applied.

R v Antonio Becerra (1976) 62 Cr App Rep 212 considered.

R v Tabulayenka s/o Kirya (1943) 10 EACA 51 explained.

Cases referred to in judgment:

Kagori v The Republic [1967] EA 427.

Okech v The Republic [1968] EA 508, EACA.

R v Becerra (Antonio) and John David Codrer (1976) 62 Cr App Rep 212, CA.

R v Patel (1946) 13 EACA 179.

R v Tabulayenka s/o Kirya (1943) 10 EACA 51.

R v Whitehouse (alias savage) [1941]1 WWR 112, British Columbia CA

Vaz (John Raymond ) v R [1961] EA 320.

Appeal

Michael Mukundi Thiong’o appealed against the dismissal by the High Court (Trevelyan and Platt JJ) at Nairobi on 4th January 1977 of his appeal (heard with that of Christopher Gitonga: Criminal Appeal Nos 529 and 721 of 1976 ) against conviction and sentence on a charge of demanding property with menaces. The facts are set out in the judgment of the court.

M Kilonzo for the Appellant.

Savji Harji Varsani v Kanjee Naranjee (Kenya) Ltd

Court of Appeal for East Africa, Nairobi 13th October 1977

Wambuzi P, Law V-P & Musoke JA

Third-party proceedings - dismissal of third party from suit - procedure - Civil Procedure Rules, order I, rule 14(1).

The tenant’s premises were damaged by fire. Repairs were carried out on the instructions of the landlord by an independent contractor; a clause in the contract excepted works in the roof. Rain water came through the ceiling of the premises and damaged the tenant’s goods. The tenant sued the landlord for damages in negligence and nuisance. The landlord issued a third party notice to the two partners in the independent contractor; the third party maintained that there was no liability under the contract. The landlord took out a summons for directions. The applicant, one of the two partners in the third party, applied by chamber summons for the dismissal of the third party from the suit. The application was dismissed, and the applicant applied for leave to appeal to the Court of Appeal for East Africa.

Held:

Refusing leave to appeal,

(1) As he landlord had taken out a summons for directions, the proper time for application to be made to dismiss the third party from the suit was at the hearing of that summons and not by way of chamber summons taken out by the third party.

(2) That as the cause for complainant, the relief and the cause of action between the tenant and the landlord were the same as those between the landlord and the third party and as the absence of contractual liability would necessarily exonerate the third party from liability in negligence, the third party proceedings properly fell within order I, rule 14(1), of the Civil Procedure Rules.

Sango Bay Estates Ltd v Dresdner Bank AG [1971] EA 17, EACA, applied.

Cases referred to in judgment:

Myers v N & J Sherick Ltd [1974] 1 WLR 31; [1974] 1 All ER 81.

Sango Bay Estates Ltd v Dresdner Bank AG [1971] EA 17, EACA.

Application for leave to appeal

Savji Harji Varsani applied to the Court of Appeal for East Africa for leave to appeal (Civil Application No NAI 9 of 1977) against decisions of Kneller J in the High Court, Nairobi, on 21st and 29th April 1977 in Civil Case 758 of 1974. The facts are set out in the judgment of the court.

DN Khanna and Sayed Ahamed (instructed by S Ahamed) for the Applicant.

RICE Harris (instructed by Messrs Daly & Figgis) for the Landlord.

Rioki Estate Co (1970) Ltd v Kinuthia Njoroge

Court of Appeal for East Africa, Nairobi 26th July 1977

Wambuzi P, Mustafa & Musoke JJ A

Land control - agricultural land - consent to disposal, etc of - failure to obtain consent - Tenant holding over after notice to quit - whether landlord entitled to mesne profits - Land Control Act (cap 302), section 7.

The appellant concluded an agreement in 1972 to lease premises for residential purposes to the respondent. The lease was subject to consent under the Land Control Act, although neither party applied for or obtained such consent within the prescribed three-month period. The respondent entered into possession, paid the rent up to the end of June 1973 and used the premises to entertain tourists. From the beginning of July 1973, the appellant refused to accept any rent and demanded the possession of the premises. The respondent gave up possession in May 1976. The appellant sued the respondent for, inter alia, mesne profits for the period after he had demanded possession. The trial judge found that the agreement was void for want of consent under the Land Control Act, section 6(2). Section 7 of that Act entitled any person who had paid rent in such circumstances to recover it as a debt from the payee. On appeal, on the question of mesne profits,

Held:

Dismissing the appeal, that as the lease was void the respondent’s continued possession of the premises was wrongful from the moment when the appellant had demanded possession, but that it did not necessarily follow that the appellant was entitled to mesne profits in respect of the period of wrongful occupation; the effect of making an award of mesne profits would be to restore to the appellant that which section 7 of the Land Control Act had taken away from him in the guise of rent and the Court would not, in the particular circumstances, make such an award.

Dictum of Briggs JA in Heptulla Bros Ltd v Jambhai Jeshangbhai Thakore [1957] EA 358, 362, EACA, considered.

Dictum of Duffus JA in Chemelil Sisal Estate Ltd v Makongi Ltd [1967] EA 166, 177, EACA, not applied.

Cases referred to in judgment:

Chemelil Sisal Estate Ltd v Makongi Ltd [1967] EA 166, EACA.

Heptulla Bros Ltd v Jambhai Jeshangbhai Thakore [1957] EA 358, EACA.

Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd [1967] EA 287, High Court of Tanzania.

Wambungu v Public Service Commission [1972] EA 296.

Appeal

The Rioki Estate Co (1970) Ltd appealed to the Court of Appeal for East Africa (Civil Appeal No 9 of 1977) against a summary judgment awarded in its favour by Chesoni J in the High Court on 2nd March 1976 (Civil Case No 1200 of 1974) in so far as the judge refused to order the respondent, Kinuthia Njoroge, to pay mesne profits and made no order as to costs. The facts are set out in the judgment of Wambuzi P.

JW Okwach (instructed by Messrs Hamilton Harrison & Mathews) for the Appellant.

S Gautama for the Respondent.

Rogan–Kamper v Lord Grosvenor (No 2)

Court of Appeal for East Africa, Nairobi 7th July 1977

Wambuzi P, Mustafa JA & Platt J

Landlord and tenant - agreement for lease - entry into possession following agreement - nature of tenancy following entry and payment of rent - monthly tenancy or tenancy at will - terms of draft, unexecuted lease inapplicable - Transfer of Property Act (India), section 106.

Landlord and tenant - tenancy - registration - evidence of tenancy – unregistered tenancy not validated by Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2(3)

The tenant entered in to an agreement with the landlord in 1969 which was evidenced by a letter sent to the tenant and signed by him. The letter stated that the parties had agreed to enter into a lease for five years and one month for certain premises at a specified monthly rent. The tenant was to occupy the premises from 1st November 1969 and the landlord would arrange for a draft lease incorporating the agreed terms to be drawn up for the tenant’s approval. The tenant duly entered into possession; and it was agreed that the premises fell within the ambit of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. On 15^th November, a draft lease was submitted to the tenant; despite several reminders, the tenant neither approved nor executed the lease. The tenant paid the rent in full up to 30th April 1970 when he purported to surrender half the premises to the landlord; thereafter he paid or tendered only one half of the agreed rent. In 1971 the landlord, referring to a term in the draft lease entitling him to re-enter the premises for nonpayment of rent, gave the tenant notice to quit and instituted proceedings for ejectment. He did not, however, follow the procedure prescribed by the Act for terminating controlled tenancies.

Held:

That on its proper construction the 1969 agreement was a contract for a lease and, as the only right which flowed from such a contract was the right to seek an order for specific performance, the landlord could not give notice to terminate in accordance with the terms of draft lease; the entry into possession and the and the payment of rent by the tenant together with the acceptance of rent by the landlord created a tenancy which was either, (per Wambuzi P and Mustafa JA) a monthly tenancy terminable by virtue of the Transfer of Property Act (India), section 106, by fifteen days notice or (Per Platt J) a tenancy at will in respect of which no formal notice was necessary; however, as the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act applied to the premises and its procedure had not been followed, the tenancy still substituted.

Ariff v Jadunath Majumdar (1930) 58 Cal 1235, PC, Souza Figuerido & Co Ltd v Moorings Hotel Co Ltd [1960] EA 926, EACA, applied.

Ashmore Benson, Pease & Co Ltd v A V Dawson Ltd [1973] 2 All ER 856 considered.

Grosvenor v Rogan-Kamper [1974] EA 446, EACA, explained. Walsh v Lonsdale (1882) 21 Ch D 9, CA, not applied.

Cases referred to in the judgment:

Abdul Rehman v RH Gudka [1957] EA 4, EACA.

Ariff v Jadunath Majumdar (1930) 58 Cal 1235, PC.

Ashmore, Benson, Pease & Co Ltd v AV Dawson Ltd [1937] 2 All ER 828, [1973] 2 All ER 856, [1973] 2 Lloyd’s Rep 21, CA.

Clarke (Kenneth Thomas) v Sondhi Ltd [1963] EA 107, EACA.

Grosvenor v Rogan-Kamper [1974] E A 446, EACA.

Jagat Singh Bains v Ishmael Mohamed Chogley (1949) 16 EACA 27.

Ramjoo Mohamed v Haridass Mullock (1925) 52 ILR Cal 701.

Souza Figuerido & Co Ltd v Moorings Hotel Co Ltd [1960] E A 926, EACA.

Walsh v Lonsdale (1882) 21 Ch D 9; 52 LJ Ch 2; 46T L 858, CA.

Appeal

In June 1971, Lord Robert Grosvenor, the Landlord, instituted proceedings for ejectment of Dr AW Rogan-Kamper, the tenant, for arrears of rent and mesne profits in the High Court (Civil Case No 786 of 1971). Chanan Singh J dismissed the action with costs. The landlord appealed to the Court of Appeal for East Africa which remitted the case back to the same judge (reported sub nom Lord Grosvenor v Rogan-Kamper [1974] EA 446). On 31st July 1975, Chanan Singh J gave judgment for the landlord and the tenant appealed to the Court of Appeal for East Africa (Civil Appeal No 33 of 1976).

JM Nazareth QC and MR Pabary (instructed by MR Pabary) for the Appellant.

P Le pelley and KA Fraser (instructed by Messrs Hamilton Harrison & Mathews) for the Respondent.

..

T v T

Court of Appeal for East Africa, Nairobi 17th June 1977

Law V-P, Mustafa & Musoke JJ A

Maintenance - consent order - order subject to variation - application to vary on grounds of inflation - form of order - court order varying amount to differentiate between variation for former spouse and variation for children.

Appeal - jurisdiction of appellate tribunal - exercise of discretion - reluctance to interfere - award of maintenance - willingness of Court to vary by even a small amount - approach of appellate tribunal to appeal against award of maintenance.

When an order is made increasing the amount of maintenance payable to a former spouse and children, the amount payable to the former spouse should be specified separately from that payable in respect of the children.

On an appeal against an award of maintenance, the appellate court will not hesitate to interfere with the exercise of discretion in a lower court and will substitute what it regards as the appropriate figure even if this only represents a very small variation in the amount; in so doing, however, its starting-point is the original award and it does not view the question de novo.

Dictum of Donovan LJ in Irvine v Irvine (1963) 107 SJ 213, CA, and Foster v Foster [1964] 1 WLR, 1155, CA, applied.

Cases referred to in judgment:

Foster v Foster [1964] 1 WLR, 1155; [1964] 3 All ER 541,CA.

Irvine v Irvine (1963) 107 SJ 213, CA.

Williams v Williams [1965] P 125; [1964] 3 WLR 832; [1964] 3 All ER 526, CA.

Appeal

R J T appealed to the Court of Appeal for East Africa (Civil Appeal No 7 of 1977) against the order of Madan J in the High Court on 28th October 1976 (Divorce Cause No 44 of 1971) increasing the amount of maintenance payable by Mr T under a consent order to H M T in respect of herself and the two children of their marriage.

P Le Pelley (instructed by Messrs Hamilton, Harrison & Mathews) for the Appellant.

MR Parbury for the Respondent.

Chelagat Mutai v The Republic

Court of Appeal for East Africa, Nairobi 6th May 1977

Wambuzi P, Law V-P & Mustafa JA

Criminal law - incitement to violence, etc – form of charge – whether actual words of incitement necessary – meaning of “calculated to” - Penal Code (cap 63) section 96(b)

The appellant was charged with incitement to violence and disobedience of law, contrary to section 96 (b) of the Penal Code. The particulars of the offence charged that she “… without lawful authority uttered words indicating that it was desirable to do an act the doing of which was calculated to lead to the destruction …” She was convicted and appealed against her conviction on the ground, inter alia, that the information under which she was charged was defective in that it did not contain the actual words which it was alleged that she had uttered.

Held:

Dismissing the appeal, that in the absence of any relevant form in the second schedule to the Criminal Procedure Code, the particulars of the offence supplied the appellant with reasonable information as to the nature of the offence charged in accordance with section 134 of that Code, and that it was not necessary that the actual words alleged to have been uttered should have been set out.

Per curiam. In the expression eg “any act the doing or omission of which is calculated … to lead to the damage or destruction of any property” in section 96 of the Penal Code, the words “calculated to” mean “of a nature or character proper or likely to”.

No cases were referred to in the judgment of the court.

Appeal

Chelagat Mutai appealed to the Court of Appeal for East Africa (Criminal Appeal No 109 of 1976 ) from the dismissal by the High Court (Sir James Wicks CJ and Hancox J) on 27th October, 1976 (Criminal Appeal No 307 of 1976) of her appeal against conviction of incitement to violence by the Resident Magistrate at Nakuru. The facts are set out in the judgment of the court.

L Muthoga for the Appellant.

Taws Ltd v Othaya Farmers’ Co-op Society Ltd

Court of Appeal for East Africa, Nairobi 22nd April 1977

Wambuzi P, Mustafa & Musoke JJ A

Contract – formal requirements – lack of prescribed formality – cooperative society ordering goods – goods to value in excess of specified amount – counter-signature required – effect of lack of counter-signature – whether contract illegal – Co-operative Societies Rules, 34(2)(c).

Rule 34(2)(c) of the Co-operative Societies Rules provides: “The committee of a registered society shall - … (c) ensure that … any order for goods in excess of amounts specified hereunder are counter-signed by the Commissioner or a person or persons nominated by him for the purpose … - (i) in the case of a primary society … all orders for purchase in excess of Shs 100 unless placed through a co-operative union; …”

The respondent, a primary co-operative society, ordered stationery from the appellant of a value in excess of 100. On seeking payment, the appellant was told that the respondent relied on the terms of rule 34(2)(c) of the Cooperative Societies Rules under which contracts in excess of Shs 100 in value required a counter-signature, which was missing from the order placed by the respondent with the appellant. The appellant instituted proceedings for payment of the money due under the order. The trial judge ruled that the contracts were rendered illegal ab initio by rule 34(2)(c). On appeal,

Held:

Allowing the appeal, that rule 34(2)(c) was only concerned with the internal administration of co-operative societies and did not affect the validity of contracts with third parties, such as the appellant.

Anderson Ltd v Daniel [1924] 1 KB 138, CA, distinguished.

Case referred to in the judgment:

Anderson Ltd v Daniel [1924] 1 KB 138; 93 LJKB 97; 130 LT 418, CA.

Appeal

Taws Ltd appealed to the Court of Appeal for East Africa (Civil Appeal No 40 of 1976) from the decision of Madan J in the High Court on 3^rd March 1976 (Civil Case No 1450 of 1973) in which he ruled that orders placed by the respondent, Othaya Farmers’ Co-operative Society Ltd, with the appellant for goods exceeding Shs 100 in value were illegal and unenforceable. The facts are set out in the judgment of Musoke JA.

SC Gautama and DV Kapila (instructed by DV Kapila & Co) for the Appellant.

PW Wamae and JW Mwangi (instructed by Messrs Munoru & Njugi) for the Respondent.