Joel Ngahu Andrew v Republic

Court of Appeal, Nairobi

18th December 1980

Madan, Potter JJ A & Simpson Ag JA

Criminal Appeal No 62 of 1979

Criminal law - sentence – manslaughter - custodial sentence – eleven years, imprisonment - manifestly excessive.

No case was referred to in the judgment.

Appeal

Joel Ngahu Andrew appealed to the Court of Appeal (Criminal Appeal No 62 of 1979) against a sentence of eleven years’ imprisonment imposed on him by Cockar J in the High Court, Nairobi, on 26th September 1979 on his conviction for manslaughter in Criminal Case No 40 of 1979.

Joseph Waiguru Wang’ombe v Republic

Court of Appeal, Nairobi

11th December 1980

Madan, Miller & Potter JJ A

Criminal Appeal No 56 of 1980

Criminal law – defences – alibi - burden of establishing alibi - need for prosecution to prove case beyond reasonable doubt.

Criminal law – defence – alibi - alibi raised at trial for first time –unsworn statement in Court - effect on ability to test alibi.

When an accused raises an alibi as an answer to a charge made against him he assumes no burden of proof and the burden of proving his guilt remains on the prosecution. Even if the alibi is raised for the first time in an unsworn statement at his trial, the prosecution (or police) ought to test the alibi wherever possible; but different considerations may then arise as regards checking and testing it and it is sufficient for the trial court to weigh the alibi against the evidence of the prosecution. Dictum of Udo Udoma CJ in Ssentale v Uganda [1968] EA 365, 368, applied.

Cases referred to in judgment:

1. R v Jackson and Robertson [1973] Crim LR 356
2. R v Long (1973) 57 Cr App Rep 871, England CA.
3. Ssentale v Uganda [1968] EA 365, Sir Udo Udoma CJ.

Appeal

Joseph Waiguru Wang’ombe appealed to the Court of Appeal (Criminal Appeal No 56 of 1980) against the decision of Trevelyan and Chesoni JJ in the High Court, Nairobi, on 8th July 1980 in Criminal Appeal No 393 of 1979 dismissing his appeal against conviction for robbery. The facts are set out in the judgment of the court delivered by Madan J A.

Rift Valley Textiles Ltd v Cotton Distributors Incorporated

Court of Appeal, at Nairobi

December 1, 1980

Law, Miller & Potter JJA

 Civil Appeals Nos 14 & 15 of 1980

Contract - sale of goods contract - breach of contract - faulty goods - negligent misrepresentation on condition of goods - damage arising from such misrepresentation.

Arbitration - sale of goods contract - breach of contract - contract containing arbitration clause - enforcement of arbitration awards - existence of arbitration clause - application for stay of proceedings under Section 6 of the Arbitration Act - grounds of appeal against an order for stay - meaning of “reference to arbitration” in Section 6(2) - meaning of “an arbitration agreement” in Section 6(1) - differences between Section 6(1) and 6(2) - effect of meanings - when these should apply.

Civil Practice and Procedure - set off - nature of a set off - whether pleading a set off has the same effect as a cross-suit within the meaning of Section 6 of the Act - whether set off a commencement of proceedings.

The appellant, a textile processing company, entered into a contract with the respondent to supply cotton. The appellant, before delivery, sought a confirmation from the respondent that the goods were in good condition (ie not infested with honeydew). The confirmation was given, but when the goods arrived, they were in fact infested with honeydew, causing considerable damage to the appellant’s machinery. The appellant as a result cancelled the remaining contracts and declined to accept delivery of the remaining goods.

The respondent commenced arbitration proceedings in respect of the cancelled contracts and obtained arbitration awards in its favour. The respondent subsequently filed suit seeking to enforce the arbitration awards. The appellant responded to this by filing for a set-off. The set-off was stayed and the appellant appealed against the order. The appellant filed suit for damages in respect of the contaminated cotton and damages arising out of the respondent’s breach of contract or, alternatively, as a result of the respondent’s negligent misrepresentation on the state of the cotton. The respondent made an application for stay which was granted, and appeal was also made against that order. The two appeals against the orders for stay were consolidated, one of the grounds of appeal being that there was no valid arbitration clause.

Held:

1. The terms of the contract provided that the contract was subject to arbitration by the Liverpool Cotton Association, and there was therefore a valid arbitration clause.
2. Where in a contract there is an agreement that disputes shall be arbitrated, that is in itself a submission or a reference to arbitration within the meaning of “a reference to arbitration” in Section 6(2) of the Arbitration Act (Cap 49).
3. The term “a reference to arbitration” in Section 6(2) of the Arbitration Act (Cap 49) refers both to an actual reference of an existing dispute and an agreement to refer future disputes.
4. The appellant’s set off had the same effect as a cross-suit and the pleading of it was therefore a commencement of proceedings within the meaning of Section 6 of the Arbitration Act (Cap 49).
5. The question as to whether the cotton was infested with honeydew and the alleged negligent misrepresentation, though made subsequent to the contract, arose out of the contract by reason of the contractual relationship between the parties and were questions within the scope of the arbitration clause.

Appeal dismissed with cost.

Editorial Note: The Arbitration Act (Cap 49) was replaced with the Arbitration Act, 1995 (Act No 4 of 1995).

Cases

1. The Merak [1965] 1 All ER 230 Considered & Applied
2. Turnock v Sartoris (1890) 43 Ch D 150 Distinguished/Not applied
3. Printing Machinery Company Ltd v Linotype and Machinery Ltd [1912] 1 Ch 566 Distinguished/Not applied
4. Union of India v EB Aaby’s Rederi A/S [1975] AC 797 Distinguished/ Not applied

Texts

Hailsham, Lord, et al, (Ed), Halsbury’s Laws of England, Butterworths & Co: London, 4th Edn (1982) Vol II, para 556

Statutes

1. Arbitration Act (Cap 49) (Now Repealed) Sections 2; 6(1), (2)
2. Civil Procedure Rules (Cap 21 Sub Leg) Order VIII rule 2

Advocates

Mr Fraser for Appellant

 Mr Deverell for Respondent

Parmar v Kebeiro

Court of Appeal, at Nairobi November 28, 1980

Law, Miller & Potter JJA

Civil Appeal No 9 of 1980

Interpretation of the Law - Conflict of judicial opinion – whether interpretation acted upon consistently though wrong in law should be upheld.

Landlord and Tenant - Tenancy - Rent Restriction Act (Cap 296) - whether it applies to dwelling houses erected after January 1, 1965 - whether prior assessment of rent by Rent Tribunal brings the house within the Rent Restriction Act.

The appeal arises from a tenancy arrangement between the appellants as landlords and the respondent as tenants. The respondent occupied the suit premises and had regularly paid rent monthly until the appellants, after due notice purported to terminate the tenancy.

The respondent declined to surrender possession upon which the appellants moved to the High Court seeking final judgement for possession of the flat, mesne profits, interests and costs. The respondent in his defence, argued that he was a protected tenant under the Rent Restriction Act and that the High Court accordingly was in want of jurisdiction to try the suit. The appellants claim was that the Act did not apply to the suit flat having been constructed in 1972 and therefore not being in existence on January 1, 1965. The Respondent pleaded that protection under the Act is not related to the date of construction of the building but to the quantum of rent. The respondent also pointed out that the appellants had in 1976 applied to the Rent Restriction Tribunal at Nairobi for the assessment of the standard rent of all the flats in the block (which application was still pending at the time of the suit) and that this clearly demonstrated that the appellants at that time, considered that their block of flats including that occupied by the respondent constituted a dwelling house falling within the protection of the Rent Restriction Act. The judge dismissed the application with costs. The appellants appealed against this decision. At the court of Appeal, it was argued for the Appellant’s that the decision in Pirbhai Dharshi v Alkasim Khaji supported their view that the Act did not apply to premises erected after 1st day of January 1965.

Held :

1. That it is a principle of law that where a Court/Tribunal has interpreted the law in a certain manner, particularly with regard to property rights and the said interpretation has been acted upon for a considerable length of time, then that interpretation should not be departed from unless it is clearly wrong and gives rise to injustice.

2. That the Rent Restriction Act (Cap 296) remained equivocal as to whether or not it applies to dwelling houses erected after January 1, 1965.

3. That the Rent Tribunal had interpreted the Act for the past 15 years as applying to dwelling houses erected after January 1, 1965 and that the same interpretation had been acted upon consistently by the legal profession and by members of property owning community, including the appellants.

4. That to depart from the said interpretation would result in injustice.

Appeal dismissed.

Cases

1. Pirbhai Dharshi v Alkarim Khaji Civil case 2781 of 1979

2. Parmar v Shah Civil case No 3060 of 1979

3. Rodseth v Shaw [1967] EA 833

4. Jivraj v Davraj [1968] EA 263

Statutes

Rent Restriction Act (Cap 296) Sections 3, 4 & 35(2)

Advocates

Mr Khanna for Appellants.

Mr Musyoka - Annan for Respondent.

Osodo v Barclays Bank International Ltd

Court of Appeal, at Nairobi November 28, 1980

Madan, Potter JJA & Simpson Ag JA

Civil Appeal No 11 of 1980

Civil Procedure and Practice - Summary Judgment - existenceof triable issues - when can one be denied leave to defend - exercise of discretion under Order XXXV of Civil Procedure Rules (Cap 21).

Partnership - liability of a new partner for debts of partnership incurred prior to his entering the partnership.

An appeal against Summary Judgment entered against the appellant and his co-defendant (both partners in a firm known as Alfa Agencies) in the High Court.

The suit was filed in the High Court by the Respondents (the bank) for recovery of moneys in respect of overdraft facilities and other banking accommodation provided to them as partners of Alfa Agencies. The appellant had pleaded in his defence that he joined the partnership after the overdraft facilities had been cancelled by the bank. The respondent had then applied under Order XXXV of the Civil Procedure rules for Summary Judgment to be entered against the defendants. In his reply the appellant had deponed that he joined the partnership after the overdraft facilities were withdrawn. The Judge entered Summary Judgment against the appellant because he did not find any matters to suggest that the appellant was not to assume the debt.

Held :

1. The appellant being a new partner is not liable for the debts and liabilities of the partnership before he became partner.

2. Where there are triable issues raised in an application for summary judgment, there is no room for discretion and the court must grant leave to defend unconditionally.

Appeal allowed.

Cases

No case referred to.

Statutes

1. Partnership Act (Cap 29) Section 11

2. Civil Procedure Act (Cap 21, Sub Leg) Order XXXV

Advocates

Oraro & Rachier for Appellant

Kaplan & Straton for Respondent

Bandali v Mwalagaya

Court of Appeal, at Nairobi November 27, 1980

Law, Miller & Potter JJA

Civil Appeal No 38 of 1980

Land - Registration of Titles Act Cap 281 - caveat lodged - notice to remove caveat by registrar of titles unless extended by a court order - whether court can invoke its inherent powers to extend the period of caveat ex parte - whether such extension is treated as an interlocutory injunction - application to set aside ex parte order extending caveat for failure to serve notice - whether ex parte order extended pending disposal and determination is spent following dismissal of application but before final disposal of appeal against the dismissal.

Civil practice and procedure - service - required even for originating summons unless dispensed with after exceptional circumstances have been shown to the satisfaction of the court.

The Registrar of Titles issued a notice to the Respondent to remove a caveat he lodged within twenty eight days failure to which it would be removed by the Registrar unless extended by a court order. The Respondent applied to court for an extension pro-tempore pending hearing and determination of a substantive suit over a plot. The Judge granted the application ex parte.

When the appellant entered appearance, he sought that the ex parte order be discharged on the grounds that no exceptional circumstance for making it had been disclosed, no application to dispense with service was made and that no undertaking as to damages had been given. This application by the appellant was dismissed prompting this appeal. It was argued for the appellant that service of an originating summons is a prerequisite to any action by the court unless only in exceptional circumstances and for very good reason, none of which were present in this case.

Held :

1. Where exceptional circumstances exist the court is justified; in using its inherent powers to extend the period of the caveat being removed by the Registrar of Titles.

2. The principles relating to interlocutory injunctions do not apply to extensions of caveats and where the Judge did not make any conclusions in this aspect, there was no reason to disturb such a judgment.

3. Failure to effect a prerequisite service does not deprive a court of its jurisdiction to entertain an ex parte application in exercise of its inherent powers especially where there are exceptional circumstances.

4. That where an ex parte order is to be discharged following a disposal of a suit, an appeal against such disposal of the suit reverses the discharge and reinstates the ex parte order and is not spent until the appeal has been heard and disposed of.

Appeal dismissed.

Cases

1. Mohamed v Haidara [1972] EA 166

2. Mutual Benefits Ltd v Patel [1972] EA 496

Statutes

1. Registration of Titles Act (Cap 281) Section 57(6), (12), (2)

2. Statute Law (Amendments) Act 1979

3. Judicature Act (Cap 8) Section 10

4. Civil Procedure Act (Cap 21, Sub Leg) Order XXXIX rule 3

Advocates

Mr AA Lakha for Appellant

Mr IT Inamdar for Respondent

Wangari Mary Josephine Mathai v Andrew Stephen Mwangi Mathai

Court of Appeal, Nairobi

17th November 1980

Law, Miller & Potter JJ A

Civil Appeal No 21 of 1979

Divorce - matrimonial offences - adultery and cruelty - standard of proof necessary to establish adultery - Court to be satisfied that matrimonial offence proved - meaning of “satisfied” - Court must feel sure of guilt of respondent.

Divorce - matrimonial offences - adultery and cruelty - adultery proved to satisfaction of court by circumstantial evidence - cruelty not proved.

When considering the question of the standard of proof requisite to establish the commission of a matrimonial offence, the safe and proper direction is that the Court must be satisfied beyond reasonable doubt or satisfied so as to feel sure that guilt has been proved; there is no need for a Court to pre-occupy itself with other words and expressions used by other judges in other places as to do so can only lead to confusion.

The charge of adultery is a serious matrimonial offence. Circumstantial evidence in proof thereof ought to be carefully and cautiously considered, the Court being required to move with great care. The standard of proof required is very high. The charge must be proved clearly, beyond establishing a mere balance of probabilities or a preponderance of probability or a mere suspicion and opportunity to commit adultery. It must be proved to the satisfaction of the court, which means that the Court must be satisfied beyond reasonable doubt or satisfied so as to feel sure.

After analysing the evidence, in particular that of two night watchmen whom he believed, the trial judge was satisfied that the co-respondent stayed on many occasions both in day time and at night with the appellant wife of the husband (petitioner) at her house on diverse occasions when her husband was absent from home, and he held that the circumstances of the case were such as to lead the guarded discretion of a reasonable and just man to the conclusion that adultery had been committed on these occasions. He also found her guilty of cruelty. The trial judge granted the husband’s petition for divorce on the two grounds. The wife appealed. There were two grounds of appeal against the finding on the charge of cruelty, and the advocate for the husband conceded that the trial judge’s finding on the charge of cruelty was not maintainable having regard to the required standard of proof to establish that charge. The Court of Appeal was therefore concerned with the finding of adultery.

Held:

Dismissing the appeal on the issue of adultery:

1. That if a Court is not satisfied as to feel sure of the guilt of the respondent then the charge of a adultery has not been proved; but in this case there was nothing wrong in the trial judge’s approach to the question of adultery, and he was right in this conclusion that it had been proved to his satisfaction that adultery had taken place; and the appeal must be dismissed on the issue of adultery;
2. That as the advocate for the petitioner did not seek to support that part of the trial judge’s judgment in which he held that cruelty had been proved against the wife, the appeal would succeed to that extent.

Cases referred to in judgment:

1. Blyth v Blyth [1966] AC 643; [1966] I All ER 524; [1966] 2 WLR 634.
2. Bastable v Bastable and Sanders [1968] 3 All ER 701; [1968] I WLR 1684.
3. Preston Jones v Preston Jones [1951] AC391; [1951] 1All ER 124; [1951] I TLR 8.
4. Davis v Davis [1950] P 125; [1950] I All ER 40
5. Campbell McNeill v Ruth McNeil1 [1952] EACA 89.
6. Stjernholm v Stjernholm (1955) 28 KLR 183
7. Ouko v Ouko Divorce Cause No 71 of 1975 (unreported),
8. Meme v Meme [1976] Kenya LR 13

Appeal

Wangari Mary Josephine Mathai, the respondent wife in a petition against her in the High Court of Kenya at Nairobi, heard by Chesoni J, in Divorce Cause No 64 of 1977 in which the judgment was delivered on 3rd May 1979, (unreported), appealed to the Court of Appeal (Civil Appeal No 21 of 1979) against the judgment granting the petition in favour of the petitioner (husband) Andrew Stephen Mwangi Mathai, who had joined Waruru Kanja as the co-respondent. The co-respondent did not appeal. The facts are set out in the judgment delivered by Miller, JA.

Advocates

PK Muite (instructed by Waruhiu & Muite Advocates) for the Appellant.

AA Lakha for the Respondent.

Wilson Kinyua & another v Republic

Court of Appeal, at Nairobi

November 10, 1980

Madan, Miller & Potter JJA

Criminal Appeal No 70 of 1979

(Appeal from the High Court at Meru, Cockar J)

 Evidence – accomplice evidence - evidential value of - necessity for corroboration of accomplice evidence - when court may rely on accomplice evidence – principles applicable - Evidence Act (cap 80) section 32.

The appellants were charged and convicted of murder contrary to section 204 of the Penal Code (cap 63). In convicting the appellants, the trial court had taken into account the confession of the second appellant, which had been admitted in evidence after a trial within a trial, in which confession the second appellant had stated how he and the first appellant had planned and executed the murder the deceased. The appellants appealed.

Held:

1. A confession by an accused person involving his co-accused, when unsupported by other testimony, is evidence of the weakest kind against such co-accused. It is accomplice evidence needing corroboration, the need for corroboration being the greater when the maker of the statement has sought to retract it.
2. The evidential value of a confession by an accused person, as set out in section 32(1) of the Evidence Act (cap 80), is that it can only be used as lending assurance to other evidence against the co-accused, evidence which narrowly falls short of the standard of proof for a conviction. It cannot be used as the basis for the prosecution case.
3. However, corroboration is not necessary in law and the court may act on the confession alone where it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true.
4. Before accepting the retracted confession in this case, the trial court had neither looked for corroboration nor warned itself of the necessity of considering whether in all the material points and circumstances the confession could not but be true.
5. (obiter) “We think that section 32(1) of the Evidence Act could be repealed profitably. A co-accused against whom a confession is taken into consideration has no opportunity of cross-examining when the maker does not give evidence or makes an unsworn statement in court. In England it is a fundamental rule of evidence that statements made by one defendant either to the police or to others (other than statements, whether in the presence or absence of a co-accused, made in the course and pursuance of a joint criminal enterprise to which the co-defendant was a party) are not evidence against a co-accused unless the co-accused either expressly or by implication adopts the statements and thereby makes them his own. Rudd (1948) 32 Criminal App R 138.”.

Appeals allowed.

Cases

1. Anyuma Omolo and Another v Republic (1953) 20 EACA 218
2. Gopa s/o Gidamebanya and Others v Reginam (1953) 20 EACA 318
3. Muthige s/o Mwigai and Others v Reginam (1954) 21 EACA 26
4. Odhiambo v Republic Criminal Appeal No 14 of 1980 (unreported)
5. Tuwamoi v Uganda [1967] EA 84
6. Rudd v Republic (1948) 32 Crim App R 138

Statutes

1. Penal Code (cap 63) section 204
2. Evidence Act (cap 80) section 32 (1)

Advocates

1. Mr Ole Kaparo & Mr Njuguna the for the Appellants

Ndirangu v Abdalla

Court of Appeal, at Nairobi October 14, 1980

Law, Miller & Potter JJA

Civil Appeal No 10 of 1979

(Appeal from the High Court at Nakuru, Nyarangi J)

Civil Practice and Procedure – attachment before judgment – application for – procedure in considering such application – issue of attachment order ex parte without ordering defendant to furnish security – no notice given to defendant to show cause why he should not furnish security – whether attachment order proper – Civil Procedure Rules order XXXVIII.

On the plaintiff’s/respondent’s ex parte application to the High Court for the attachment before judgment of the defendant’s/appellant’s property, the judge ordered the attachment of a certain motor vehicle without directing the appellant either to furnish security or to appear and show cause why he should not furnish security. The appellant applied for the setting aside of the attachment order and this application was dismissed.

The appellant appealed.

Held

1. Under the Civil Procedure Rules order XXXVIII rule 6, it is upon a defendant’s failure to show cause why he should not furnish security, or to furnish the security required within a specified time that the court may order the attachment of the property sufficient to satisfy the decree which may be passed in the suit.

2. The judge erred in ordering the summary attachment of the vehicle at first instance on the respondent’s application without calling upon and requiring the appellant to show cause.

3. (Per Potter JA) In considering an application for attachment of property before judgment under order XXXVIII rules 5 and 6 of the Civil Procedure Rules, the court should follow the following steps:

a) Before the court can take any action, it must be “satisfied” that the defendant is about to dispose of his property or to remove it from the jurisdiction of the court with intent to obstruct or delay the execution of any decree that may be passed against him.

b) If the court is so satisfied, it then proceeds to direct that the defendant, within a time to be fixed by it, either to furnish security or to appeal and show cause why he should not furnish security.

c) The final step is that where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, the court may order the attachment of such property as is sufficient to satisfy the decree.

4. The judge erred in dismissing the appellant’s application to set aside the attachment of the property.

5. The order of attachment was a nullity.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Act (cap 21) section 3A

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXVIII rules 1(a)(ii), b; 2; 4; 5; 6(1); 10; Appendix E, Forms 5, 7

Advocates

Mr Varia for Appellant

Mr Bowry for Respondent

Kenya Flamingo Airways Ltd v Thorneycroft & another

Court of Appeal, at Nairobi September 17, 1980

Law JA

Civil Application No 31 of 1980

Civil practice and procedure - liquidated demand of Civil Procedure Act (Cap 21) - under Order IXA rule 5 – application of Order IXA - whether it is restricted to contract only.

Appeal - extension of time to file a further appeal where the first one was incompetent - failure to include formal order in the Record of Appeal.

The appellant failed to enter appearance and the respondents were awarded judgment as prayed under Order IXA rule 3(1). Thereafter, the appellants applied to have the judgment set aside and the execution stayed. It was argued that Order IXA rule 3(1) applied to a liquidated demand and was confined to contract or quasi-contracts hence not suitable for the present suit which arose out of damages for the tort of conversion.

The High Court dismissed the application with costs having ruled that the sum claimed constituted a liquidated demand within the meaning of order IXA rule 3. The appellants were granted time within which to appeal, during which execution of the order was suspended.

On appeal, the record was found to be defective as it did not contain the formal order of the High Court. Before being called for hearing upon which it would have been struck out for being incompetent, the appellants lodged the present application for an extension of time in which to lodge a further appeal the earlier one being incompetent.

Held :

1. That the principles governing the grant of an extension of time in which to file a further appeal are conditional on there being no delay on the part of the applicant, on the public importance of the matter, and on the prospects of the appeal. That these conditions were not satisfied hence the application must fail.

2. That the reading of Order IXA Rule 5 reveals that it is not restricted to contract but applies generally to all plaints making a liquidated demand.

Application dismissed.

Cases

1. Beth Mugo v Garnets Mining Co, Civil Application No 8 of 1979

2. Belinda Murai & others v Wainaina (Court of Appeal, Civil Application No NAI 9 of 1978)

3. Harnam Singh v Mistri [1971] EA 122

4. Baker v Barclays Bank [1956] I WLR 1409

Statutes

1. Civil Procedure Act (Cap 21, Sub Leg) Order IXA rule 5, 3(1) & 10 and Orders V rule 2(b), XXI rule 22

2. Appellate Jurisdiction Act (Cap 9) Court of Appeal rule 85

Advocates

Mr Suttill for Appellant

Mr Fraser for Respondents