Heco Uberseehandel v Mac’s Pharmaceuticals Ltd

High Court, at Nairobi August 20, 1992

Shields J

Civil Case No 581 of 1988

Contract – where one refused to pay for goods alleging that was not what they contracted for- where one accepted the goods but found it difficult to resale them to 3rd party- whether one can be allowed to terminate contract on this basis.

The plaintiff, a German company operating in Hamburg sold a quantity of dextrose auhdrous to the defendant, a Kenyan company. The dextrose was to be pyrogen free B P grade, injectable and it was dispatched to the defendant in 3 consignment. Payment was to have been made for these consignments 120 days after the date of bills of lading.

The defendant refused to honor the bills of lading alleging that the goods were not those contracted for, that they were not of merchantable quality and that they were not fit for resale to the Ministry of Health.

The defendant further alleged that the material supplied was not pyrogen free because according to them, if a substance was not pyrogen free then it was not suitable for injection, though they alleged that it may safely be taken orally that the material was unsuitable and therefore did not conform to the goods contracted for.

The plaintiffs therefore brought an action against the defendant for refusing to honour the bills of lading and hence the payment for the consignment.

Held:

1. The complaint about the packaging was rectified and therefore the packaging was adequte and in accordance with the contract specifications.

2. The defendants failed on the balance of probability to show that the material supplied was not of the quality contracted to be supplied.

3. Neither of the letters sent by the defendants to the plaintiff amounted to rejection of shipments. In fact it was an affirmation by defendants that they had accepted the shipment but were having some difficulty in persuading the Ministry of Health to accept the defendant’s offer to sell the materials to the Ministry. The defendants are deemed to have accepted the goods under section 36 of the Sale of Goods Acts.

Judgment for the plaintiffs.

Cases

No cases referred to

Statutes

Sale of Goods Act (cap 31) section 36

Advocates

Abuga for the Plaintiff

Chaudrey and Chabeda for the Defendant

Fatemi Investments Ltd v Bayusuf

High Court, at Mombasa May 14, 1990

Shields J

Civil Case No 842 of 1983

Jurisdiction – civil jurisdiction of the High Court – suit for the recovery of treble the value of distrained property which had been removed by the defendant – Distress for Rent Act (cap 293) section 7- Act stating removal of distrained property to be an offence and prescribing punishment - whether such suit competent – whether criminal prosecution the proper procedure.

The plaintiff averred that it was the landlord in certain premises in which a tenant named Sheikha Ventures operated a video library business. The tenant had fallen into arrears in rent and on the plaintiff’s instructions, a bailiff levied distress on the premises and seized the tenant’s goods. Part of those goods included 1,000 video cassettes which had been in the possession of the defendant.

The plaintiff further stated that after the levy of the distress, the defendant had wrongfully removed the cassettes from the premises. The plaintiff therefore claimed from the defendants threefold the value of those cassettes as it was entitled to do under section 7 of the Distress for Rent Act (cap 293).

On his part, the defendant denied that he had rescued the cassettes.

Held:

1. On a balance of probabilities, the Court was satisfied that the story told by the plaintiff was true.

2. The claim to recover treble the value of the goods sold was a liability imposed purely by statute and where a right is given by statute and the means to enforce or redress are given by statute, one must use this means to get to the relief one seeks.

3. The Distress for Rent Act (cap 293) section 7 creates a criminal offence and imposes a penalty and if a person is charged with it, he must be prosecuted in accordance with the safeguards contained in section 77(1-9) of the Constitution and the Criminal Procedure Code (cap 75)

4. Accordingly, this Court had no jurisdiction to en tertian the plaintiff’s claim.

Plaintiff’s claim dismissed.

Cases

1. Barraclough v Brown [1897] AC 615; [1895-99] All ER Rep 239

2. Lavell & Co Ltd v A & E O’Leary [1933] 2 KB 200; [1933] All ER 423

Statutes

1. Constitution of Kenya section 77 (1)-(9)

2. Distress for Rent Act (cap 293) section 7

3. Criminal Procedure Code (cap 75)

Advocates

Mr Satchu for the Defendant

Marete v Attorney General

High Court, at Nairobi April 29, 1987

Shields J

Miscellaneous Civil Case No 668 of 1986

Constitutional law – fundamental rights and freedoms – protection from

torture and inhuman and degrading treatment – protection from slavery and servitude - Constitution sections 73, 74, 84 – plaintiff suspended from work without pay and advised not to leave his station without permission – suspension period lasting two and a half years – whether such action amounting to inhuman and degrading treatment – whether plaintiff entitled to compensation.

Damages – general damages – for pain and suffering – plaintiff suspended from work without pay and advised not to leave his station without permission – suspension period lasting two and a half years – whether plaintiff subjected to inhuman treatment – quantum of damages.

Employment – public officers – suspension of public officer – officer suspended without any proceedings having been instituted for his dismissal – whether such suspension proper – Public Service Commission Regulations regulation 24(2).

The plaintiff was an employee in the Ministry of Agriculture and Livestock Development where he had served for thirteen years.

Following an attempt by a section of Kenya’s armed forces to overthrow the government on 1^st August, 1982, the Office of the President asked the Permanent Secretary in the Ministry of Livestock Development to dismiss the plaintiff for disloyal behaviour.

On 15th December, 1982, the District Livestock Development Officer in charge of Wajir, where the plaintiff was stationed, purported to dismiss the plaintiff and on 25th January, 1983, the Permanent Secretary informed the plaintiff that he was suspended and that he would receive no pay during his suspension. The plaintiff was further advised that he was not to leave his station without permission. He was kept at both Wajir and Meru until August, 1985.

The plaintiff brought this suit in which he claimed that his suspension was unlawful and that he had been subjected to torture and inhuman and degrading treatment during his suspension.

Held:

1. The contravention by the state of any of the protective provisions of the Constitution is prohibited and the High Court is empowered to award redress to any person who has suffered because of such contravention.

2. Such redress can include compensation for loss of earnings consequent on the contravention and recompense for the inconvenience and distress suffered. The courts can give aggravated damages but not exemplary or punitive damages.

3. The suspension of the plaintiff was illegal as a public officer can only be suspended when proceedings have been commenced for his dismissal under regulation 24(2) of the Public Service Commission Regulations. No such proceedings had been commenced against the plaintiff at the time of his suspension.

4. To subject a person to two and a half years without pay, without work and without freedom to seek work is mental torture and inhuman and degrading treatment contrary to section 74 of the Constitution. Such treatment becomes even more reprehensible when inflicted upon a married man with four children.

5. (Obiter) Had these proceedings invoked section 73 of the Constitution which forbids the holding of a person in servitude, the Court would have no hesitation in holding that the plaintiff had been in servitude for the period of two and a half years.

6. The plaintiff was entitled to recover his lost wages and further, for his dismissal without pay after his long period of servitude, he was entitled to a capitalized value of his pension as at 2nd August, 1985.

7. For the pain and suffering inflicted on him, the plaintiff was entitled to general damages in the amount of Shs 100,000.

Judgement for the Plaintiff.

Cases

State v Petrus [1985] LRC (Const.) 699

Texts

1. Shorter Oxford English Dictionary Oxford: Oxford University Press.

2. Black, HC, Black’s Law Dictionary St Paul Minnesota: West Publishing Co

Statutes

1. Constitution of Kenya sections 25, 73, 74, 84

2. Public Service Commission Regulations (cap 185 Sub Leg) regulation 24(2)

Advocates

Mr Kiraitu for the Plaintiff.

Miss Macharia for the Defendant.

Company Law-winding up-where the liquidator had seized certain goods on the premises under the powers conferred on him by Section 239 of the Companies Act-where the applicant claims the seized goods are his property and not that of the companies in liquidation-whether the proper remedy would have been for the applicants to bring an action for detinue against the liquidator-whether orders reversing the seizure should be granted

Kigika Developers Ltd v Nairobi City Commission

High Court, at Nairobi October 14, 1986

Shields J

Civil Case No 3923 of 1985

Land – compulsory acquisition of – acquisition by local authority for public purposes – acquisition done contrary to Land Acquisition Act (cap 295) – claim of damages by owner of land – how damages for compulsory acquisition assessed–– failure of local authority to approve development plans – whether damages for economic loss may be awarded for such failure – object of town planning legislation.

Damages – general damages – exemplary damages – for compulsory acquisition of land – land acquired unprocedurally by local authority for public purposes - assessment of damages for compulsory acquisition – whether a proper case for award of award exemplary damages.

Tort – breach of statutory duty – malicious or negligent abuse of power - failure of local authority to approve development plans for land – whether owner of land entitled to recover economic loss for such failure.

The plaintiff purchased a piece of land in Nairobi with the intention of developing it. The defendant, which was charged with the functions of a local authority, took over the plaintiff’s land for its own public purposes without following the procedure provided in the Land Acquisition Act (cap 295) for doing so.

The plaintiff sued the defendant claiming compensation and exemplary damages for unlawful acquisition of its land, trespass, economic loss from the refusal by the defendant to approve its development plans and for economic loss. The defendant’s defence was struck out and a formal proof hearing was held.

Held:

1. The court treated the defendant’s unlawful acquisition as a compulsory purchase and it would award damages as if the land had been acquired under the Land Acquisition Act (cap 295).

2. Following the decision in the case of New Munyua Sisal Estates Ltd v Attorney-General [1972] EA 88, the compensation for the compulsory acquisition would be reckoned as the market value of the land and an additional 15% of that value.

3. Though the defendant was under a statutory duty to approve or disapprove the plaintiff’s development plans for the land, the town planning legislation was enacted to protect the public interest and not land developers. Consequently, the plaintiff did not have an action for breach of statutory duty and it could not claim damages for the defendant’s alleged refusal or neglect to approve the plans.

4. The tort of malicious or negligent abuse of power is still a nascent tort. Each tort is different and since the matter is one of policy, each can be decided in a different way from the next one.

5. Following the policy considerations set out in Castle v Stockton Waterwork LR 10 QB 453, the plaintiff was not entitled to damages for economic loss caused by the failure of the defendant to approve the building plans whether that failure was negligent or malicious.

6. This was not an appropriate case for making an award for exemplary damages.

Case ordered to proceed for assessment of the market value of the land.

Cases

1. New Munyu Sisal Estates Ltd v Attorney General [1972] EA 88

2. Davis v Browly [1908] 1 KB 170

3. David v Abdul Kadhi [1963] 1 WLR 864

4. Cutler v Wandsworth Stadium Ltd [1949] AC 398; 1 All ER 544

5. Sparton Steel & Alleys Ltd v Martin & Co [1972] 3 WLR 502; 3 All ER 557

6. Rylands v Fletcher

7. Kenya Ports Authority v East African Power & Lighting Co Ltd [1982] KLR 410

8. Castle v Stockton Waterworks LR 10 QB 453

Statutes

1. Land Acquisition Act (cap 295)

2. Factories Act (cap 514)

Advocates

Mr Munene for the Plaintiff.

Obuya v Obuya

High Court, at Nairobi October 9, 1986

Shields J

Civil Case No 178 of 1982 (OS)

Family law – matrimonial property – division of – under the Married Women’s Property Act section 17 – applicability of section 17 of Married Women Property Act 1882 to Kenya – principle court should consider in determining applications for entitlement to matrimonial property.

Husband and Wife – matrimonial property – division of matrimonial property after divorce.

The applicant and the respondent, who had been husband and wife respectively but were later divorced, brought proceedings seeking their entitlement to certain matrimonial property under section 17 of the Married Women’s Property Act 1882 of England.

In considering the application, which largely concerned a double - storeyed  house purchased by the parties and held by them as joint tenants and subject to a mortgage, the court considered the applicability to Kenya of the Married Women’s Property Act 1882.

Held:

1. Section 17 of the Married Women’s Property Act 1882 is a procedural section and by virtue of section 3 of the Judicature Act (cap 8), it was applicable in this Court as part of the procedure and practice observed in the courts of justice in England as at 12th August, 1897.

2. The Court therefore had jurisdiction to determine this suit under that section.

3. This jurisdiction was to be exercised in accordance with the principle that disputes between husband and wife as to the ownership of property which at one time they have been using in common are disputes which may very well be dealt with under the rule that orders should be made which appear to be fair and just in the special circumstances of the case.

4. The applicant had contributed slightly more to the purchase of the premises but considering the fact that the respondent had enabled them to obtain the mortgage and that the applicant had been the sole occupier since before the divorce, the respondent was better entitled to share in the increase in the value of the premises since its purchase.

5. The applicant was not to vacate the premises but he was entitled to purchase the respondent’s share in it by paying for that share and giving the applicant an indemnity against the outstanding mortgage payments.

Cases

1. I v I [K] [1971] EA 278

2. Karanja v Karanja [1976] KLR 307

3. Strachan v Strachan [1965] 1 WLR 646; 2 All ER 77

4. Petit v Petit [1970] AC 777

5. Lichungu, Charles & others v Clement Gachanja High Court Civil Case No 3688 (unreported)

6. Rimmer v Rimmer [1953] 1 QBD 63; [1952] 2 All ER 696

Texts

Commonwealth Law Bulletin p 580

Statutes

1. Judicature Act (cap 8) section 3

2. Judicature Act 1873 [UK]

3. Married Women’s Property Act 1882 [UK] section 17

Advocates

Khaminwa & Khaminwa Advocates for the Applicant

Hayanga & Co Advocates for the Respondent