Jopley Constantine Oyieng v Republic

Court of Appeal, at Nairobi

November 24, 1988

Nyarangi, Platt & Apaloo JJA

Criminal Appeal No 45 of 1988

(Appeal from an Order of the High Court at Nairobi, Aragon J)

Constitutional Law – references on the interpretation of the Constitution – references to the High Court under section 67(1) of the Constitution –procedure for making such reference–– party denied leave to make institute a private prosecution by a subordinate court – party filing application for interpretation of his constitutional rights in the High Court – whether application competent – whether application raising any issue for interpretation of the Constitution.

The appellant sought leave from a Chief Magistrate’s Court to institute a private prosecution. The Court declined to grant leave and the appellant brought an application in the High Court under sections 67 and 84 of the Constitution.

The High Court, upon a brief hearing on a preliminary objection raised by the State, observed that the wrong procedure had been followed and dismissed the application.

The appellant appealed to the Court of Appeal arguing that the High Court had not heard him on the substantive application and that the judge had erred in his conclusion that the application was incompetent.

Held:

1. The reference of an issue for the interpretation of the Constitution to the High Court under section 67(1) of the Constitution is made by the subordinate court in which the party applies for such reference; such reference is not made by the party himself.

2. In this case, there was no matter before the Chief Magistrate as to the interpretation of the Constitution and for that reason, section 67 of the Constitution did not apply.

3. The subordinate court having not made a reference to the High Court, there could not be anything in the Constitution identified for interpretation.

4. Under section 26 of the Constitution, only the Attorney-General has the right to institute criminal proceedings and no similar right is extended to a private individual. Section 26(3) contemplates prosecutions by authorised parties in respect of which the Attorney-General may act as provided in the subsection.

5. The appellant had therefore failed bring himself within the provisions of sections 70 to 83 (inclusive) of the Constitution so as to entitled him to apply for redress to the High Court under section 84 of the Constitution. His application to the High Court was therefore incompetent.

6. Even if the matter before the High Court had been competent as being an application under section 67(1) of the Constitution, there would be no appeal as no right o f appeal has been given. A right of appeal can only be conferred by statute.

Appeal struck out.

Cases

No cases referred to.

Statutes

1. Constitution of Kenya sections 26, 26(3), 67, 67(1), 70-83, 84,

2. Criminal Procedure Code (cap 75) sections 88(1), 89(5)

Karanu v Karanu

Court of Appeal at Nairobi

November 17, 1988

Apaloo, Masime JJA & Kwach Ag JA

Civil Appeal No 74 of 1984

(Appeal from a Ruling of the High Court at Nairobi, Porter J)

Husband and Wife – alimony – alimony pending suit – matters the court will consider in applications for such alimony – application by wife for alimony pending suit – husband failing to give particulars of his income – how the court can assess income in such case – circumstances in which wife’s income will not be taken into account in assessing quantum of alimony.

The High Court awarded the respondent/wife Kshs 2,000 per month as alimony pending suit against the appellant/husband and a similar sum for each of the three children of their marriage. The appellant’s application to the same court to reduce those sums was refused and he appealed.

Held:

1. The Matrimonial Causes Rules rule 44(1) obliged the husband, within 14 days of an application for alimony pending suit, to set out the full particulars of his property and income. This rule envisaged a honest and true disclosure by the husband of his earnings so that the court could be guided by it in fixing the quantum award.

2. The appellant filed no such affidavit and having so failed to discharge the obligation cast on him by rule 44, he could not be heard to say that the High Court’s award of alimony exceeded one fifth of his income for the three years preceding the date of the award.

3. In those circumstances, the court could only fix the quantum on such evidence as was available ensuring that the sum fixed was, in all the circumstances, fair and reasonable and that the figure did not suppress the husband below the subsistence level.

4. His wife’s affidavit which gave detailed particulars of the appellant’s properties provided a fair estimate of his income. By assessing those properties, it was reasonable to estimate that the appellant’s monthly income was in the order of Kshs 100,000.

5. Where the wife is earning an income, the whole of it need not and should ordinarily not be brought into account so as to enure to the husband’s benefit particularly where the wife only takes up employment in consequence of the disruption of the marriage by the husband or where she would not reasonably be expected to be working if the marriage had not been so disrupted.

6. In this case, the wife felt obliged to resume her profession as a nurse because of the break-up of the marriage and in any case, there was nothing to show that her income had not been taken into account in fixing the award of Kshs 8,000.

7. Considering the appellant’s monthly income, the monthly award of Kshs 8,000 for the maintenance of his wife and three children was not unreasonable or wrong and there was no cogent reason shown for reducing that award.

Appeal dismissed.

Cases

1. Ward v Ward [1947] 2 All ER 713

2. J v J [1955] 2 All ER 85; varied at p 617

Statutes

1. Matrimonial Causes Act (cap 152) section 25(1)

2. Matrimonial Causes Rules (cap 152 Sub Leg) rule 44, 44(1)

Gregory Kiema Kyuma v Marietta Syokau Kiema

Court of Appeal, at Nairobi

November 17, 1988

Gachuhi, Apaloo JJA & Kwach Ag JA

Civil Appeal No 16 of 1988

(Appeal from a Ruling of the High Court at Nairobi, Shields J)

Appeal – appeals from subordinate court to the High Court – form and time in which such appeals should be made – certificate of delay – period which certificate should refer to – certificate issued for the time taken in preparing proceedings and judgment – whether such period taken into account in computing the time for filing appeal – whether certificate of delay proper – whether appeal competent - Civil Procedure Act (cap 21) section 65, 79G – Civil Procedure Rules order XLI rule 1A.

The respondent instituted proceedings against the appellant, her husband, in the Resident Magistrate’s court for custody of their children and maintenance. Judgement was given in the respondent’s favour on 5th December, 1986.

On 5th January, 1987, the appellant applied for “a certified copy of the proceedings and judgment/orders”. These were later obtained and the subordinate court issued the appellant with a certificate of delay stating that the time required for preparing “the proceedings and judgment was 5th January 1987 to 2nd April 1987”.

The appellant nevertheless sought an extension time to file his appeal.

The extension was granted on condition that he was to deposit some money in court. His appeal, which included a prayer for an injunction, was filed on 29th April, 1987 but owing to his failure to deposit the sum ordered, the appeal was struck out.

Moreover, the judge observed that because the certificate of delay related not to the period for the preparation of the decree or order but of the certified copies of the proceedings and judgment, the appeal was out of time and therefore, there was no pending appeal on which he could grant the injunction sought.

The appellant appealed.

Held:

1. The right of appeal from a subordinate court to the High Court is conferred by the Civil Procedure Act (cap 21) section 65 and the time for filing appeals is governed by section 79G of that Act.

2. An appellant is required, within thirty days from the date of the decree or order or within a period extended by a certificate of delay, to file a Memorandum of Appeal in the prescribed form and a copy of the formal order of the Court, if available. Under the Civil Procedure Rules order 41 rule 1A, the latter document can be filed as soon as possible and in any event within such time as the court may order.

3. A certificate of delay within the true intendment of section 79G of the Civil Procedure Act (cap 21) must certify the time it took to prepare and deliver to the appellant “a copy of the order” of the Magistrate.

4. The certificate of delay exhibited by the appellant did not speak of an order, and no such order was sought or extracted. What the appellant had mistakenly sought and what the court had supplied were “the proceedings and judgments”.

5. This meant that the appellant did not file a Memorandum of Appeal within thirty days and had no valid certificate of delay within the true contemplation of section 9G.

6. The appellant could only file a competent appeal if the court granted him an extension of time. Since such extension was granted on terms and the appellant failed to comply with the terms, the judge was entitled to strike out the appeal. The judge was also right in finding that there was no pending appeal on which he could grant an injunction.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Act (cap 21) sections 65; 65(1), 79G

2. Civil Procedure Rules (cap 21 Sub Leg) order XLI rules 1A, 1(1); Appendix 1 Form 1

Advocates

Mr Mureithi for the Appellant

Samson Owino Ger v Marmanet Forest Co-operative & Credit Society Ltd

Court of Appeal, at Nairobi

November 17, 1988

Apaloo, Masime JJA & Kwach Ag JA

Civil Appeal No 24 of 1987

(Appeal from a ruling of the High Court at Nairobi, Shields J)

Advocate and Client – how advocate and client relationship created - meaning of client – right of client to obtain an account of monies paid to advocate - Advocates Act (cap 16) section 2.

The respondents took out an originating summons against the appellant for an order compelling him to deliver an account in respect of monies paid to him as its advocate in respect of a certain transaction.

The appellant on his part took out a chamber summons to strike out the originating summons under the Civil Procedure Rules order VI rule 13.

He deponed that the appellant’s claim was time-barred and that he could not be called upon to deliver an account as he was not an advocate of the respondent.

It was agreed by consent that the question whether or not the advocate was acting for the respondent as an advocate should be determined first.

After receiving evidence, the High Court found that the relationship of advocate and client existed. The appellant appealed against that finding.

Held:

1. When a person says that he has instructed an advocate to act for him, what he means is that he has retained the professional services of an advocate in relation to a particular transaction or business and he has in consequence become that particular advocate’s client.

2. The evidence showed that an agreement had been prepared for the parties for which, on the appellant’s own admission, he was paid a fee and the agreement expressly provided that he would act for both parties, each of which would contribute a certain sum.

3. There was no merit in the argument that since only the respondent had contributed its sum to the advocate and the other party had not paid as had been agreed, the advocate did not therefore become an advocate of either party.

4. In the events that had taken place between the parties in this case, the respondent became a client of the appellant advocate within the definition of “client” provided in the Advocates Act (cap 16) section 2.

5. There was sufficient evidence to support the High Court’s finding that the relationship of advocate and client existed and that when the advocate was paid Shs 1.5 Million by the respondent, he did not receive it otherwise than as the respondent’s advocate. He was therefore under an obligation to account to the respondent for the money.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Rules (cap 21 Sub leg) order VI rule 13; order XXXVI rule 8; order LII rule 4, 4(1)

2. Limitation of Actions Act (cap 22) generally

3. Advocates Act (cap 16) section 2

4. Advocates (Accounts) Rules (cap 16 Sub Leg)

Advocates

Mr. Ombete for the Appellant.

Githunguri v Jimba Credit corporation Ltd (No 2)

Court of Appeal, at Nairobi

November 8, 1988

Apaloo JA, Gicheru & Kwach Ag JJA

Civil Application No NAI 161 of 1988

(Application for an interlocutory injunction in an intended appeal from a ruling of the High Court at Nairobi, Mbaluto J)

Injunctions – interlocutory injunctions - jurisdiction of Court of Appeal to grant injunction where one has been denied in the High Court–– Court of Appeal Rules rule 5(2)(b) – nature of the jurisdiction – whether jurisdiction appellate or original – principles the Court will consider in exercise of the jurisdiction.

The appellant sued the respondent in the High Court seeking a declaration that a charge executed by him in favour of the respondent was illegal and unenforceable. He also sought an interim injunction to restrain the respondent from selling or alienating the property over which the charge had been made.

The High Court, in refusing to grant the injunction, observed that the charge was a valid and enforceable contract to which both parties were bound. The appellant repeated his application for injunction in the Court of Appeal under the Civil Procedure Rules rule 5(2).

Held:

1. The jurisdiction of the Court of Appeal under rule 5(2) of the Court of Appeal Rules to grant either a stay of execution, an injunction or stay of any further proceedings, arises if a notice of appeal has been lodged against the decision or ruling appealed from in accordance with rule 74.

2. The rule conferred an original independent discretion on the Court and the Court had to decide de novo on the suitability or otherwise of the relief sought. This was not an appeal from the High Court judge’s discretion.

3. The general principles on which the Court would base its unfettered discretion were, first, that the appeal should not be frivolous or the applicant must show that he has an arguable appeal and, secondly, that the Court should ensure that the appeal, if successful, should not be nugatory.

4. The applicant had shown that, prima facie, that he had serious questions of law for submission to the Court on the hearing of the appeal.

5. If the charged premises were sold during the pendency of the proceedings, the whole object of the suit and the intermediate appeal would be defeated. The applicant was entitled to an interim injunction.

The injunction was not to be granted unconditionally but on terms.

Injunction granted on terms.

Cases

Giella v Cassman Brown & Co. Ltd [1973] EA 358

Statutes

1. Banking Act (cap 488) section 10

2. Transfer of Property Act 1882, section 69A

3. Court of Appeal Rules (cap 9 sub leg) rules 5(2), 5(2)(b), 74

Njoroge v Kiarie

Court of Appeal at Nairobi

November 8, 1988

Gachuhi, Masime JJA & Gicheru Ag. JA

Civil Appeal No 59 of 1985

(Appeal from a Ruling and Order of the High Court at Nairobi, Mbaya J)

Civil Practice and Procedure – service of process – where party denies having been served – matters the court should consider in determining such dispute – process server stating that service effected on defendant’s wife - whether proper for court to prefer the statement of process server against the sworn evidence of defendant – Civil Procedure Rules order V rules 12, 16.

The appellant/defendant filed an application in the High Court for the setting aside of ex parte judgment which had been entered against him in default of appearance.

There was a statement on the court file that summons to enter appearance had been served on the defendant’s wife by a court process server but that no appearance had been entered.

The appellant filed two affidavits, one by himself and the other one by his wife both of which denied any service of summons.

The judge observed that having studied all the documents relating to the pleadings, he was satisfied that the appellant’s wife had been served with the summons and that he had no reason to believe that the process-server had lied. He therefore refused to set aside the ex parte judgment.

The appellant appealed.

Held:

1. Under the Civil Procedure Rules order V rule 12, under which the service of summons was said to have been effected, service is made on an agent of the defendant or an adult member of his family residing with him if the defendant cannot be found. The statement of service did not say that the process server could not find the defendant.

2. Under order V rule 16, where one party to the proceedings denies having been served with a relevant document, it is proper for the court to look into the matter and if the court is faced with conflicting affidavits as to the alleged service process, it is proper that the deponents should be examined on oath in order to establish the truth.

3. In this case, there were affidavits of both the defendant and his wife in which they denied service of summons and the court was faced with the unsworn statement of the process server against the affidavits of the appellant.

4. In preferring the evidence of the process server to the affidavits of the appellant, the judge fell into error and it could not be said that he exercised his discretion judicially.

Appeal allowed.

Cases

Karatina Garments Ltd v Nyanarua [1976] KLR 94

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order V rules 12,16