Kenya Commercial Bank Ltd v Specialised Engineering Company Ltd

High Court, at Nairobi

January 16, 1980

Harris J

Civil Case No 1728 of 1979

Civil Practice and Procedure - compromise of suit - consent order - order drafted and signed by advocates on record - extent to which an advocate can bind a client - consent recorded by court - draft order filed - refusal by instructing client to approve order - application to have consent order reviewed, discharged set aside or varied - grounds for granting such an order - advocate consented to the order by mistake - mistake apparently bona fide - extent - circumstances when compromise can relate to a suit - meaning of the former Order XXIV rule 6 of Civil Procedure (Revised) Rules 1948.

Advocate - powers of an advocate - power to compromise the suit - power to bind the client - extent of - power to vary a consent order entered into by a duly instructed advocate.

 The advocates for both parties reached an agreement, drafted a consent order and presented it to the court to be recorded as an order by consent. The plaintiff subsequently refused to approve the order and an application seeking to set aside or vary the consent order was made. The court according to the application was to consider the circumstances under which a consent order may be set aside or varied.

 Held:

1. A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.
3. An advocate has general authority to compromise on behalf of his client, as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding.
4. The fact that a material fact within the knowledge of the client was not communicated to the advocate when he gave his consent to a court order is not sufficient ground for the client withdrawing his consent to the order before it is passed and entered even if the advocate concedes that he would not have given his consent had he known these facts.
5. The making by the court of a consent order is not an exercise to be done otherwise than on the basis that the parties fully understand the meaning of the order either personally or through their advocates and when made, such an order is not lightly to be set aside or varied save by consent or on one or either of the recognised grounds.

Application dismissed.

Editorial Note:

At the appeal against this decision, the Court of Appeal, in an unprecedented move, “adopted” as its judgment the High Court decision of Harris J. Below is the Court of Appeal decision:

Cases

1. Khushaldas & Son v Weinstein [1964] EA 734 Referred
2. Brook Bond Liebig (T) Ltd v Mallya [1975] EA 266 Approved & Applied
3. Welsh v Roe (1918), 87 LJ KB 520 Approved & Applied
4. In Re Wedge (1908), 98 LT 436 Approved & Applied

Texts

1. R Walton, Kerr on the Law and Practice as to Receivers, Sweet & Maxwell: London, 15th Edn (1979) pp 321 - 322
2. HW Seton, Forms of Judgments and Orders in the High Court of Justice and Court of Appeal, Stevens & Sons: London, 7th Edn (1912) Vol I
3. IH Jacob, et al, (Ed), The Supreme Court Practice, 1979, Sweet & Maxwell, Stevens & Sons Ltd: London, (1979) Vol II paras 2012 - 2013

Statutes

Civil Procedure Rules (Cap 21 Sub Leg) Order XXIV rule 6

Advocates

Mr P Le Pelley & Mr Nyamu for Plaintiff

Mr JJ Patel for Defendant

Attorney-General v Rachel Wacera Kareithi

High Court,at Nairobi

16th January, 2nd February, 5th April, 25th June, 2nd July 1979

Harris J

Miscellaneous Civil Case No 338 of 1978

Vexatious proceedings – order that person a vexatious litigant – jurisdiction – whether Court can restrain proceedings already pending

In the absence of an express power to that effect, the High Court has no jurisdiction to restrain a person whom it declares to be a vexatious litigant from continuing without leave the prosecution of any other suit which had been instituted before the Court makes its order.

Re Langton [1966] 3 All ER 576 explained.

Facho v Siqueira (1933) 15 KLR 34 distinguished.

Application

The Attorney-General applied to the High Court (Miscellaneous Civil Case No 338 of 1978) under section 2(1) of the Vexatious Proceedings Act for an order that the respondent, Rachel Wacera Kareithi, be declared a vexatious litigant and be restrained from continuing proceedings previously instituted by her. The facts are set out in the judgment of Harris J.

Cases referred to in judgment:

1. Re Chaffers (1897) 76 LT 451, 45 WR 365, 13 TLR 363, CA.
2. Facho (Olivia da Ritta Siqueira E) v Siqueira (1933) 15 KLR 34.
3. Langton, Re [1966] 1 WLR 1575, [1966] 3 All ER 576, CA.

MAH Kithyoma, assistant Public Trustee, for the Attorney-General.

Mrs Kareithi appeared in person

Kahuru Bus Service v Praful Patel

High Court, Nairobi

11th , 27th June 1979

Harris J

Civil Case No 1419 of 1976

Judgment - default of defence – jurisdiction – no defence filed to counterclaim - Civil Procedure Rules, orders VI, IXA.

Neither order VI nor order IXA of the Civil Procedure Rules gives the Court jurisdiction to give judgment on a counterclaim in default of the filing of a defence to the counterclaim.

Summons

Praful Patel, the defendant in Civil Case No 1419 of 1976 instituted in the High Court by Kahuru Bus Service (suing as a firm), applied to the Court to enter judgment on his counterclaim to which the plaintiff had filed no defence.

No cases were referred to in the judgment.

Advocates

JK Kamere (instructed by Kamere & Co) for the Plaintiff.

PK Mureithi (instructed by Veljee Devshi & Bakrania) for the Defendant.

Cur adv vult.

Francis Bedford Pim v Francis Ruth Helen Morton

High Court , at Mombasa 15th, 16th September 25th October 1978

Harris J

Civil Case No 418 of 1975

Civil procedure - death, etc, of party - application by legal representative to be made party - time within which application to be made – amendment to rule as to time - Limitations of Actions Act (cap 22), section 4(1)(e) - Indian Limitation Act 1877, section 4, Second Schedule (Part III) – Civil Procedure Rules, order XXIII, rule 3(2) - Civil Procedure (Amendment) Rules 1978 (Legal Notice 88 of 1978), rule 2(p).

In 1975 the plaintiff filed a suit against the defendant claiming the return of Shs 20,000. On 23rd March 1976 the plaintiff died. If the plaintiff’s personal representatives wanted to be substituted for the plaintiff in the litigation, they were required by section 4(1)(e) of the Limitations of Actions Act to file an application to that effect within six years of his death (until 1st December 1967 a period of six months had been prescribed for such applications by section 4 of and the Second Schedule (Part III) to the Indian Limitation Act 1877 which had been replaced with effect from that date by the Lmitations of Actions Act). Moreover, if they did not make the application within the time limited by law the suit would abate in accordance with order XXIII, rule 3(2), of the Civil Procedure Rules.

On 2nd May 1978 the applicants were granted probate of the plaintiff’s will. They applied to the Court to be substituted for the plaintiff in his action against the defendant. On 1st July 1978, however, order XXIII, rules 3(2), was amended by the Civil Procedure (Amendment) Rules 1978, rule 2(p), so as to provide (in these circumstances) for a suit to abate if due application was not made within one year. On the question whether the applicants had applied to Court in time,

Held:

Granting the application,

(1) that there was no reason to suppose that there was any error in drafting the Limitations of Actions Act such as to preserve the original sixmonth period for such applications.

Dhanesvar V Mehta v Manilal M Shah [1965] EA 321 considered.

(2) That, in the absence of clear words to that effect, order XXIII, rule 3(2), as amended on 1st July 1978 could not be construed so as to give it retrospective effect and the relevant period for the application was accordingly six years.

Dictum of Newbold J A in Municipality of Mombasa v Nyali Ltd [1963] EA 371, 375, applied.

Cases referred to in judgment:

1. Dhanesvar V Mehta v Manilal M Shah [1965] EA 321, EACA.
2. Mombasa (Municipality) v Nyali Ltd [1963] EA 371.

Summons

The executors of the late Francis Bedford Pim (the plaintiff) applied to the Court to be made parties to his suit (Civil Case No 418 of 1975) against Francis Ruth Helen Morton. The facts are set out in the judgment.

HAT Anjarwalla for the Applicants.

JDR Shah (instructed by Atkinson Cleasby & Satchu) for the Defendant.

Cur adv vult.

Assanand v Pettitt (No 2)

High Court, at Nairobi

May 3, 1978

Harris J

Civil Case No 2567 of 1977

Injunction - interlocutory injunction - principles the court will apply in considering an application for such injunction.

Contract - terms of contract - whether courts may supply terms to a contract - agreement for sale of premises - agreement stating that date of purchaser’s occupancy was to be agreed - purchaser suing for specific performance - whether court could supply the date of occupancy.

The plaintiff applied for an injunction restraining the defendant from dealing with or removing anything from certain leasehold premises.

The basis of the application was a suit for specific performance of an alleged agreement between the parties for the purchase of the premises.

The defendant’s defence stated that the alleged agreement did not amount to a binding contract and, further, that the plaintiff’s suit was premature because the defendant was entitled to remain in possession until a date for the delivery up of possession had been agreed between them.

Held:

1. The principles governing the granting of interlocutory injunctions are to be found in the judgment of Spry, VP in the case of EA Industries Ltd v Trufoods Ltd [1972] EA 420.

2. An applicant has to show a prima facie case with a probability of success and if the court is in doubt it will decide the application on the balance of convenience. The injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.

3. Where parties have expressly agreed that the date for possession is itself to be agreed between them the court would not step in and supply it.

4. The plaintiff had not shown a prima facie case with a probability of success or that a refusal of the injunction would cause him irreparable injury which would not adequately be compensated by an award of damages.

Application dismissed.

Cases

EA Industries Ltd v Trufoods Ltd [1972] EA 420

Statutes

No statutes referred.

Bildad Abiud Mbuthia v University of Nairobi

High Court, Nairobi 21th, 22nd, 23rd September 10th, 11th, 12th, 13th, 27th, 28th October 1977; 27th February 1978

Harris J

Civil Case No 911 of 1975

Defamation - qualified privilege - Interest or duty to make communication - corresponding interest or duty to receive communication - reciprocity of interest or duty.

A defendant to proceedings for defamation who sets up a defence of a qualified privilege must show an interest or duty (legal, social or moral) to communicate the defamatory statement to the persons to whom it was published and their corresponding duty to receive it.

Dicta of Lord Atkinson in Adam v Ward [1917] AC 309, 334 HL, of Lord Greene MR in De Buse v McCarthy [1942] 1 KB 156, 164, CA and of Lord Denning MR in Egger v Viscount Chelmsford [ 1964] 3 A ll ER 406, 409, CA, applied.

Cases referred to in judgment:

• Adam v Ward [1971] AC 309, [1916-1917] All ER Rep 157, HL.
• Associated Newspapers Ltd v Dingle [ 1964] AC 371, [ 1962] 3 WLR 229, [ 1962] 2 All ER 737, HL.
• De Buse v McCarthy [1942] 1 KB 156,[1942] 1 All ER 19 CA.
• Egger v Viscount Chelmsford [ 1965] 1 QB 248,[ 1964] 3 WLR 712, [1964] 3 All ER 406, CA.
• Hunt v Great Northern Railway Co [1891] 2 QB 189, 60 LJQB 498, CA.
• Smith v Streatfeild [1913] 3 KB 764, [1911-13 ] All ER Rep 362.

Action

Bildad Abiud Mbuthia instituted proceedings for libel (Civil Case No 911 of 1975) against the University of Nairobi in respect of the publication to certain persons of a letter dated 11th December 1974 addressed to him and signed by the deputy registrar of the University.

YP Vohra (instructed by Vohra & Vohra) for the Plaintiff.

S A Eastwood (instructed by Daly & Figgis) for the Defendant.

Cur adv vult.

Associated Holdings Ltd v Prim and Pretty (a firm)

High Court, at Nairobi

February 15, 1978

Harris J

Civil Case No 2633 of 1977 (OS)

Landlord and Tenant – tenant law- tenancy – lease document expressing commencement date anterior to the date of the document – whether anterior date is a valid date in construing the period of the term for purposes of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act (cap 301).

Civil Practice and Procedure – originating summons – whether such summons can be taken out in respect of a document whose terms are not in dispute – Civil Procedure Rules order XXXVI rule 5.

The plaintiff permitted the defendant to take possession of its premises which it had been agreed would be leased to the defendant at a monthly rent of Pounds 215 for a period of five years and one month.

Sometime later a draft lease was forwarded by the plaintiff to the defendant which was subsequently returned to the plaintiff with amendments.

The habendum in the draft indicated the lease was to commence on 1st December, 1972.

The negotiations concerning the draft lease took a long time and eventually no agreement was reached on the terms of the lease.

The plaintiff consequently took an originating summons under the Civil Procedure rules order XXXVI rule 5 for a declaration of its right to have a lease signed by the defendant and for an order of specific implement of its right by the signing by the defendant of the lease annexed to the affidavit.

It was contended on behalf of the defendant that matter fell outside the view of order XXXVI rule 5 and that the relief sought by the plaintiff would have the effect of specific implement of whatever obligations attached to the defendant in the circumstances.

Held:

1. The matter did not properly fall within the purview of order XXXVI rule 5 as no specific provision or term in the letter had been shown to be ambiguous or requiring clarification or construction.

2. The relief sought if granted would be similar in effect to granting of a decree of specific performance of the agreement of 1972 which would have expired in 1977 if it had been implemented. The court could not grant the equivalent of a decree of specific performance of a terminal contract already spent.

3. Although parties may agree that as between themselves a tenancy shall be deemed to have come into existence at a date anterior to the grant of tenancy, they cannot create a retrospective tenancy

Summons dismissed.

Cases

1.Roberts v Church Comrs for England [1971] 3 All ER 703; [1972] 1 QB 278; [1971] 3 WLR 566, CA

2. Cadogan (Earl) v Guinness [1936] 2 All ER 29; [1936] Ch 515; 105 LJCh 255; 155 LT 404

3. Abdulali Jiwaji & Company (Properties) Ltd v Shamvi Holdings Ltd [1989] KLR 319

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rule 5

2. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) section 2(1)

3. Transfer of Property Act, 1882

4. Law of Property Act, 1925 [UK] section 84

5. Leasehold Reform Act, 1967 [UK]

Advocates

Mr Le Pelley for the Plaintiff

Mr Omweggi for the Defendant

Kanji Naran Patel v Olkalou Saw Mill Ltd

High Court, at Nairobi 25th April, 20th, 26th, May 30th September 14th October

7th November 1977, 20th January 1978

Harris J

Civil Case No 1520 of 1971

Execution - attachment order - attachment to enforce judgment debt - judgment given against defunct company - judgment void - costs of raising attachment.

The hearing of the plaintiff’s action against the defendant company commenced on16th September 1974. On the second day, it was adjourned until December 1975 when judgment was reserved. In March 1976 judgment was given on behalf of the plaintiff. subsequently, the Court authorised execution to be levied against the defendant company and such of its vehicles as bore the objector’s name. However, the defendant company had been wound up and its name was struck off the Register of Companies in October 1974. The objector applied to the Court to strike out the notice of attachment and for the payment of his costs.

Held:

That the judgment obtained by the plaintiff was invalid by reason of defendant’s company having been dissolved at the time; that the attachment would, accordingly, be raised and the objector’s costs should be paid by the plaintiff.

No case was referred to in judgment.

Objection

On 17th November 1976 Gachohi Njuguna filed a notice of objection to the attachment of vehicles bearing his name. The attachment had been ordered by the Court on 30th September 1976 on the application of Kanji Naran Patel, the plaintiff, who had been awarded judgment against Olkalou Saw Mills Ltd in Civil Case No 1520 of 1971. The facts are set out in the judgment.

Mwicigi Kinuthia for the Objector.

PN Khanna for the Plaintiff.

Cur adv vult.

Re Rufus Ngethe Munyua (Dec’d)

Public Trustee v Wambui

High Court, Nairobi 21th, 24th, 25th, 26th, 27th, 28th January;

Harris J 3rd, 10th February; 3rd, 22nd March;

20th April ; 3rd May; 11th July 1977

Customary law - will - oral will - will made in presence of close adult relatives – some relatives absent – death-bed will valid according to Kikuyu custom.

Customary law - will - oral will - appointment of “muramati”- failure of testator to appoint “muramati” - failure not invalidating will otherwise valid according to Kikuyu custom - meaning of “muramati”.

Under Kikuyu customary law a valid oral will may be made when the testator is on his death-bed in the presence of his close adult relative by declaring how his property is to be distributed item by item and by appointing his “muramati”. However, the inability or refusal of some of the testator’s close relative to attend will not invalidate the will; further, the will should not fail solely for want of appointment of a “muramati”, particularly where the Public Trustee is prepared to act.

The term “muramati” means the family head or the administrator of the deceased’s estate

Cases referred to in judgment:

Mukiri v Njoroge (unreported) Civil Case 248 of 1971, High Court.

Kimani v Kimani (unreported) Civil Appeal 19 of 1975, High Court.

Originating summons

By an originating summons (Miscellaneous Civil Case No 20 of 1976 OS) the Public Trustee sought an order that an instrument written in a Kikuyu language with an English translation annexed should be treated as the last will and testament of the late Rufus Ngethe Munyua. By an order of 2nd December 1976 it was directed that the summons should be treated as a petition for a grant of letters of administration with the will annexed. Florence Wambui, the first respondent and a wife of the deceased who wished to support the instrument as a valid will, was given leave to appear as a party in the proceedings. Esther Njoki, the deceased’s elder wife, and Jane Nyakaru, an adult daughter of Esther Njoki, were given leave to file a caveat under section 71 of the Probate and Administration Act 1881 (India); they filed a caveat on 17th December 1976 and became the second and third respondents, respectively. The facts are set out in the judgment.

PJ Kamau for the Public Trustee.

CK Ngibuini (instructed by Thimba & Co) for Florence Wambui.

Mrs LW Kinyanjui (instructed by K Mwaura & Co) for Esther Njoki.

Cur adv vult.

Karanja Matheri v Sarah Wanjiru Kanyi

High Court, Nairobi 3rd May, 7th June 1976

Harris J

Limitation of actions – action to recover land – action barred after twelve years – title to land extinguished – agricultural land in land control area – failure to obtain consent to transaction –whether entitled to registration as proprietor of land – Land Control Act (cap 302), section 6(1)(a),(b) – Limitation of Actions Act (cap 22), section 7, 17.

Although section 6(1)(a) of the Land Control Act renders certain transactions relating to agricultural land void unless the consent of the local land control board is first obtained, and section 6(1)(b) similarly renders void the division of such land, a person is entitled to be registered as the proprietor of such land in accordance with sections 7 and 17 of the Limitation of Actions Act by order of the court even if he has not previously obtained the requisite consent.

Mayor of Brighton v Guardians of the Poor of Brighton (1880) 5 CPD 368 applied.

Salim v Boyd [1971] EA 550 distinguished.

Cases referred to in judgment:

Bobbet v South Eastern Railways Co (1882) 9 QBD 424; 51 LJQB 161; 46 LT 31.

Bridges v Mees [1957] 1 Ch 475; [1957] 3 WLR 215; [1957] 2 All ER 577.

Brighton (Mayor of) v Guardians of the Poor of Brighton (1880) 5 CPD 368; 49 LJCP 648.

Ruchine v Swift Rutherford & Co Ltd (unreported) Civil Case 1401 of 1971, High Court.

Salim v Boyd [1971] EA 550.

Action

Karanja Matheri applied to the High Court (Civil Case No 424 of 1972) for declarations that the right of the defendant, Sarah Wanjiru Kanyi, to recover any portion of a specified plot of land was barred and that the plaintiff was entitled to be registered as proprietor of the entire plot. The facts are set out in the judgment of Harris J.

PK Muite (instructed by Waruhiu & Waruhiu) for the Plaintiff.

The defendant in person.

Cur adv vult