Sharma v Handa t/a K A Handa Secondary Schools

Court of Appeal, at Nairobi December 19, 1994

Gicheru, Kwach & Cockar JJ A

Civil Appeal No 37 of 1991

(Appeal from a judgment of the High Court of Kenya at Meru  (Mr Justice Samuel Odhiambo Oguk) dated 26th November 1990,  in Civil Case No 42 of 1986)

Employment Law – appellant in employment for a period of two years – employer issuing no formal contract but proceeds to apply for work permit for the appellant stating in the application that he wished to employ the appellant – whether this amounts to evidence of employment – whether appellant entitled to salary for the period he remained unemployed.

The appellant who was an Indian national retired from his teaching job with the Government of Kenya upon attainment of the age of 55 years. The respondent however verbally agreed to employ him for another two years and also personally undertook to arrange for the necessary work permit. The respondent however later lost interest in obtaining the work permit for the appellant causing the appellant to make several trips to Nairobi to have his visitor’s permit renewed. Some time in January, 1986 the respondent verbally terminated his services and he then remained unemployed until August, 1986 when he secured another job. The appellant therefore commenced proceedings in the High Court seeking loss of salary for the period he remained unemployed together with house allowance and travelling expenses in connection with his work permit. The trial judge accepted evidence of the appellant and gave judgment for the December salary and house allowance for November and December and dismissed the rest of the claims. The appellant feeling aggrieved filed the instant appeal.

Held:

1. There is uncontroverted evidence of the appellant that his appointment as a teacher was for a period of 2 years in the first instance if the respondent obtained a work permit for him.

2. Having been appointed for a period of 2 years with no provision relating to termination of appointment, the position would be that the appointment would be considered as terminated at the expiry of 2 years.

3. Apart from the judgment sum awarded by the High Court the

appellant was also entitled to salary for the months he had remained unemployed.

Appeal allowed.

Cases

No cases referred to.

Statutes

Employment Act (cap 226) section 14(1)

Muviti v Republic

Court of Appeal, at Nairobi December 15, 1994

Cockar, Omolo & Tunoi JJ A

Criminal Appeal No 23 of 1992

(Appeal from a conviction and sentence of the High Court of Kenya  at Nairobi (Mr Justice Mango) dated 20th December, 1991 in  HCCC No 13 of 1988)

Criminal Practice and Procedure – charge and caution statement – investigating officer recording a statement from an accused person – whether statement admissible in evidence.

Criminal Practice and Procedure – extra-judicial statement – accused making a statement admitting the offence after long period in police custody – trial judge admitting statement without seeking explanation about the long period in custody – whether admission was procedural.

The appellant was tried and convicted by the High Court of the offence of murder and sentenced to death.

On appeal it was argued on her behalf that the learned trial judge misdirected himself by admitting an extra judicial statement by the appellant in which she admitted killing the deceased without seeking explanation from the prosecution over her long period in custody before making her statement.

It was further argued that it was improper for the investigating officer to be the same person to record her statement.

Held:

1. The fact that a statement had been recorded by an investigation officer in the case was, no doubt, a matter for the trial judge to consider in deciding whether or not to admit the statement in evidence, but the fact, in itself, does not automatically result in the exclusion of the statement from the evidence.

2. Where at the time of taking of plea there appears to be an unusual circumstance such as injury to the accused, or the accused is confused, or there has been inordinate delay in bringing the accused to Court from the date of arrest etc; then an explanation of the circumstances, must form an intergral part of the facts to be stated by the prosecution to the Court.

3. If the statement was taken sixteen or seventeen days after arrest, as happened in this case, then in seeking to prove the voluntary nature of the statement, the prosecution must prove that the length of the period for which the accused was in their custody had no effect on his making the statement.

4. The prosecution offered no explanation at all as to why they kept this appellant in their custody for so long before taking the two statements from her. On that basis, the judge ought to have excluded the statements.

Appeal allowed.

Cases

1. Bassan & Wathobia s/o Kiambu v R [1961] EA 521

2. Ndede v Republic [1991] KLR 567

Statutes

Penal Code (cap 63) section 203

Advocates

Mr Mbuthia for the Appellant

Miss Ndirangu for the State/Respondent

Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation & 2 others

Court of Appeal, at Nairobi December 15, 1994

Kwach, Cockar & Muli JJA

Civil Appeal No 59 of 1993

(An appeal from the ruling of the High Court of Kenya at Nairobi  (Mr Justice Akiwumi) dated 15th January, 1993 in  HCCC 6776 of 1992)

Civil Practice and Procedure - appeal – supplementary record – respondent including in a supplementary record of appeal documents and proceedings produced after the order appealed from was made – whether this amounted to adducing additional evidence – the purpose of the rule 85(1) (k).

The appellant raised a preliminary objection contending that the second and third respondents could not raise the grounds stated in the Notice of Grounds for Affirming Decision nor rely upon the Supplementary Record of Appeal.

Counsel for the appellant submitted that the documents which the said respondents sought to introduce did not form part of the record of the superior court when the trial judge made the order appealed from. It was his contention that the documents contained in the Supplementary Record although forming part of the superior courts file, came into existence after the order appealed from was made. To introduce them therefore, would amount to introducing additional evidence. The Supplementary Record of Appeal was filed under rule 89 (1) (k) of the Court of Appeal Rules which permitted the inclusion in the record of appeal of such other documents as may be necessary for the proper determination of the appeal.

Held: (with Muli J dissenting)

1. The documents in the Supplementary Record could not be called additional evidence because they did not exist at the time the application was heard and determined.

2. The matter contained in the Supplementary Record were matters which the Court was entitled to see and which had to be drawn to the attention of the Court and not concealed from it, if the Court was to do justice to both parties.

3. Rule 85(1)(k) of the Court of Appeal Rules was meant to provide for exceptional situations which litigants or appellants may face such as the one in this case.

Objection overruled.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 29, 85, 85(1); 85(1)(a) (b),

(c), (d), (e), (f), (g), (h), (i), (j), (k)); 89; 89(1)

Advocates

Mr Lakha for the Appellant

Mr Le Pelley for the 2nd & 3rd Respondents

Njoroge & another v Bhima

Court of Appeal, at Nairobi December 15, 1994

Cockar, Muli & Tunoi JJ A

Civil Appeal No 123 of 1986

(Appeal from judgment and decree of the High Court of Kenya  at Eldoret by the Honourable Mr Justice V V Patel dated  9th August, 1985 in Eldoret HCCC No 91 of 1979)

Civil Practice and Procedure – adjournment – whether and in what circumstances an appellate court can interfere with trial court’s decision on an adjournment motion.

Damages - general damages for personal injuries.

Negligence – sexual incapacity – whether Court can award damages in absence of claim for or evidence in support of such a loss.

The appellant appealed against the decision of the High Court awarding damages to the respondent on account of injuries sustained as a result of a road traffic accident.

During the trial in the High Court the appellant’s counsel called only one witness who was the turnboy of the appellant’s lorry and applied for adjournment in order to call a police witness to produce the file prepared in respect of the accident so that he could study the sketch plan and the statements of the witnesses in it. The respondent’s counsel successfully opposed the application for adjournment arguing that the hearing had been adjourned several times previously at the appellants’ request.

On appeal, counsel for the appellants took objection to the fact that the trial judge took judicial notice of sexual incapacity of the appellant and further that the judge prompted evidence of sexual incapacity from a witness. Counsel contended that this was neither pleaded nor proven.

Held:

1. The question of adjournment is a matter within the discretion of the judge of the court of trial and the manner of its exercise will not be interfered with if it appears to an appellate court that all necessary matters have been taken into consideration.

2. The exercise of the discretion should not defeat the rights of the parties altogether and should not do injustice to one or other of the parties. If it does so then the appellate court has power to review such an order.

3. In the instant case the appellants had caused not less than four adjournments some of which appeared to the learned judge to be frivolous and indeed meant to prejudice the expeditious disposal of the suit.

4. It was not pleaded and neither was any evidence adduced to prove that the respondent had ceased to enjoy normal sexual relationship with his wife. It was therefore manifestly wrong for the trial court to surmise that the respondent’s hip joint injury had reduced the frequency of sexual relationship.

Appeal partially allowed.

Cases

Patel v Gottfried (1953) 20 EACA 81

Statutes

No statutes referred.

Advocates

Mr Bowry for the Appellants

Mureithi v Wambui & 2 others

Court of Appeal, at Nairobi December 6, 1994

Cockar, Muli & Akiwumi JJ A

Civil Appeal No 105 of 1988

(Appeal from the judgment and decree of the High Court of  Kenya at Nairobi (Mr Justice Mbogholi-Msagha) dated the 5th day of April 1988 in HCCC No 1079 of 1988)

Negligence - Road traffic accident - a matatu driver colliding with a lorry emerging from a minor road into a highway - whether the matatu driver can bear blame for failing to brake, hoot or swerve - whether a mere possibility that an accident can occur may lead to apportionment of liability where accident is not avoided.

The appellant’s matatu collided with the respondent’s lorry which was driven into the highway from a minor road without. The driver of respondent sued the appellant for negligence.

At the conclusion of the trial in the High Court, the trial judge concluded that the lorry driver must have joined the major road without ascertaining that it was safe to do so. He had a duty to stop and give way. In the judge’s opinion the lorry driver was 90% to blame for the collision while the matatu driver bore the remaining 10% liability.

On appeal the question for decision was whether in the absence of evidence that the matatu driver was driving at a speed or in a manner which taking the sorrounding circumstances into account could be said to be negligent, some liability should be apportioned to him.

Held:

1. In order to find that the matatu driver was negligent at all, there had to be evidence which there was not, to show that it was reasonably apparent that there was a possibility of the accident occuring and that the matatu driver in not hooting and applying his brakes, took no extraordinary precautions and so contributed to the accident.

2. The only relevant evidence, namely that of the lady passenger, at best, could only be construed to mean that the possibility of an accident was only a mere possibility which, having regard to all sorrounding circumstances as established by the evidence adduced at the trial, would never occur to the mind of a reasonable man and in which it

cannot be said that the matatu driver was negligent in not hooting or applying brakes.

Appeal allowed.

Cases

1. Oluoch v Robinson [1973] EA 108

2. Lang v London Transport Executive [1959] 3 All ER 609; [1959] 1 WLR 168

Statutes

No statutes referred.

Sololo Outlets Ltd & 3 others v National Social Security Fund Board of Trustees & 4 others

Court of Appeal, at Nairobi November 29, 1994

Gicheru, Kwach & Cockar JJ A

Civil Application No NAI 181 of 1994 (85/94 UR)

(Application for an injunction pending the lodging and hearing of an  intended appeal from the ruling of the High Court of Kenya at Nairobi  (Justice Shah) dated 5th September, 1994 in HCCC No 914 of 1994)

Civil Practice and Procedure - injunction pending suit – application under rule 5(2)(b) – requirements applicant must meet before the Court can grant an injunction under the rule.

Company Law – plaintiff commencing suit against a company in liquidation before first obtaining leave–– whether suit competent – section 228 Companies Act.

Civil Practice and Procedure –– suits - declaratory suit – jurisdiction of the court where a plaintiff seeks declaratory orders.

The applicants sought an injunction pending the hearing of the suit against the respondents in the High Court. The High Court declined the injunction but struck out some prayers in the plaint as prayed by counsel for the respondents hence a second application to the Court of Appeal.

The application sought to restrain the respondents from among other things selling or alienating specified properties in exercise of their purported rights as chargees. The applicants further sought to restrain the 5th and 6th respondents who were receivers from allegedly committing trespass upon their premises.

In its application for injunction in the High Court, the applicants simultaneously sought leave to institute a suit against the liquidators of the 2nd respondent, and the 2nd respondent itself.

The respondents on 7th April, 1994 brought an application under section 228 of the Companies Act for an order that the suit be struck out or stayed for failing to comply with section 228 of the Companies Act.

The trial judge after hearing arguments felt that the plaint was overloaded with several unrelated causes of action which in his view would render

a fair trial impossible. The judge however instead of striking out the suit ordered a stay to give the applicant an opportunity to take the necessary remedial measures.

The trial judge noted that charges created as securities for debts owed by the 1st applicant belonged to persons not parties to the suit and therefore not before the Court.

Held:

1. In an application under rule 5(2)(b) of the Court of Appeal Rules all that the plaintiffs are required to do, is to first show that they have an arguable appeal, and then go on to show that their appeal, if successful, would be rendered nugatory if the interim relief is denied.

2. Under section 228 of the Companies Act leave has to be obtained before a suit is filed against a company which is in liquidation.

3. Relief in the form of a declaration of right is generally superfluous for a plaintiff who has a subsisting cause of action.

4. It is when the infringement of the plaintiff’s rights in the future is threatened or when, unaccompanied by threats, there is dispute between parties as to what their respective rights will be if something happens in the future that the jurisdiction to make declarations of right can be most usefully invoked.

5. The jurisdiction of the court is not to declare the law generally or to give advisory opinions: it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.

6. The Court was far from satisfied that the plaintiffs had established that they had an arguable appeal which, if successful, would be rendered nugatory, if the injunctions they had sought were not issued.

Application dismissed.

Cases

1. Yowana Kahere v Lunyo Estates Ltd [1959] EA 319

2. Jimba Credit Corporation v Githunguri (No 2) [1988] KLR 838

3. Gouriet v Union of Post Office Workers & others [1977] 3 All ER 70; [1978] AC 435; [1977] 3 WLR 300

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 5(2)(b); 74

2. Banking Act (cap 488) sections 35, 35(6); 36

3. Civil Procedure Rules (cap 21 Sub Leg) order I rules 9, 10; order VI rule 13 (1)(b)(c)(d); order XXXIX rule 1

4. Companies Act (cap 486) sections 228, 241

5. National Social Security (Amendment) Act, 1987

Advocates

Mr Muthoga and Mr Kamau Kuria for the Applicants

Miss Mululu for the 1st Respondent

Mr Ombogo for the 2nd, 4th and 5th Respondents

Mr Oraro for the 3rd Respondent

Mathenge & another v Kimotho

Court of Appeal, at Nairobi November 28, 1994

Gicheru, Kwach & Omolo JJ A

Civil Appeal No 190 of 1991

(An appeal from the judgment of the High Court of Kenya at Nairobi (Justice Mwera) dated 17th January, 1991 in HCCC No 892 of 1985)

Land Law – contract for sale of land – no suit to be brought in respect of such contract unless the agreement or memorandum upon which suit is based is signed by the party to be charged – section 3(3) Law of Contract Act.

Land Law – agreement for sale of land – appellant writing a letter expressing intention to secure a buyer for a property held in common but not with others – whether letter can be deemed as evidence of agreement to sell interest in land.

Land Law – tenants in common - land held in common with others – whether a party may dispose of his undivided share with consent of the others.

The respondent in this appeal sued the appellants in the High Court for specific performance of an alleged agreement between himself and the appellants. The agreement for sale produced in evidence was signed by seven other co-owners but not the two appellants. The respondent however contended during the trial in the High Court that while the appellants had not signed the agreement, there were other documents which when read together constituted a memorandum or note signed by the 1st appellant which showed that there was an agreement between him and the registered owners of the disputed plot. The trial judge in this respect agreed with the respondent and ordered specific performance of the purported sale agreement.

Held:

1. No suit shall be brought upon a contract for the disposition of an interest in land unless the agreement upon which the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorised by him to sign it.

2. There was no agreement, memorandum or note signed by the second appellant or anyone on his behalf agreeing to sell his share in the suit land to the respondent.

3. The letter written by the first appellant was only a confirmation of his desire to secure a buyer for the suit land but it was certainly not a commitment by him to sell to any particular person not even the respondent.

4. No proprietor in common shall deal with his undivided share in favour of any person other than another proprietor in common of the same land except with the consent in writing of the remaining proprietor or proprietors of the land, but such consent shall not be unreasonably withheld.

5. The respondent to whom the purported sale was being made was a third party and the sale to him required the written consent of all the nine proprietors.

Appeal allowed.

Cases

1. Kukal Properties Development Ltd v Tafazzal Hatimali Maloo & 3 others Civil Appeal No 155 of 1992

2. Bidco Clothing Factory Ltd v Kenya Puleen Ltd Civil Appeal No 9 of 1984

Statutes

1. Law of Contract Act (cap 23) sections 3, 3(3)

2. Registered Land Act (cap 300) section 103(2)

3. Evidence Act (cap 80) section 134

Advocates

Mr K’Owade for the Appellants

Mr Kaburu for the Respondent

Khimji & another v Wambua

Court of Appeal, at Nairobi November 25, 1994

Gachuhi, Gicheru & Tunoi JJ A

Civil Appeal No 135 of 1988

(Being an appeal from the judgment of the High Court of  Kenya at Nairobi (Mr Justice Apaloo) dated 7th July, 1986 in  HCCC No 3452 of 1984)

Damages - special damages – rationale for pleading and particularising in the statement of claim.

Damages – loss of earnings in respect of a living claimant – claimant to plead and particularise.

The High Court at the conclusion of the trial awarded the respondent damages which included an award for loss of earnings.

The appellant, feeling aggrieved by the High Court’s decision, appealed contending on the main that the award for the loss of earnings between the date of the accident and the date of judgment should not have been quantified as part of the award of general damages since such earnings were referable to specific loss and were therefore special damages which required to be pleaded and strictly proved.

Held:

1. If a plaintiff suffered damage of a kind which was not the necessary and immediate consequence of the wrongful act, he should have warned the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he was to meet and assisting him in computing on payment into Court.

2. The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial and which is capable of substantially exact calculation.

3. It follows therefore that in the instant appeal, the assessment of Kshs 390,000/- being the respondent’s loss of earnings for a period of 39 months from the date of accident to the date of judgment was in respect of money actually lost by him during this period. This was a known fact and was substantially capable of exact calculation. It was a special damage which in fairness to the appellant the respondent had an undoubted obligation to plead and particularise.

Appeal allowed on this point only and damages reduced.

Cases

1. Pritchard v J H Cobden Ltd [1987] 2 WLR 627; [1988] Fam 22

2. Perestrello E Companhia Limitada v United Paint Co Ltd [1969] 1 WLR 570; [1969] 3 All ER 479

Statutes

No statutes referred.

Advocates

Mr Kagucia for the Appellants

Mr Mbobu for the Respondent