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E C N G v F N N

Court of Appeal, at Nairobi June 25, 2004

Ringera Ag JA (In Chambers)

Civil Application No NAI 294 of 2003

(An application for extension of time to file and serve notice and record of appeal from a judgment and decree of the High Court of Kenya at Nairobi (Aganyanya, J) dated 5th July, 2001 in HCDC No 143 of 1999)

Judicial Discretion- exercise of judicial discretion- exercise of the discretion by the Court of Appeal to extend the time for filing appeal - nature of such discretion- how the discretion should be exercised – factors considered by the court in exercise of the discretion- applicable principles- Court of Appeal Rules (cap 9 Sub Leg) rule 4.

Civil Practice and Procedure- extension of time- application for extension of time to file appeal- discretion of the court in such application- applicable principles- Court of Appeal Rules (cap 9 Sub Leg) rule 4.

Civil Practice and Procedure - appeal- record of appeal- documents contained in the record- whether it is mandatory to include certified copy of decree in the record- Court of Appeal Rules (cap 9 Sub Leg) rule 85 (1)(h).

Advocate- mistake of advocate- failure of advocate to include certified copy of decree in record of appeal- whether such mistake may be visited on the client.

The appellant’s appeal had been struck out by the Court on its own motion, for failure to include a primary document in the record of appeal. He subsequently filed for an extension of time to lodge and serve a fresh notice of appeal and record of appeal. The appellant’s counsel admitted that he had made a mistake by not including the order appealed from in the record of appeal, but prayed that his mistake should not be visited on his client.

The respondent opposed the application contending that the discretion of the Court under rule 4 of the Court of Appeal Rules should only be exercised if the application for extension of time is filed without delay. In this case, there had been a delay of 20 days. Moreover, for the Court to act on the basis of a mistake, that mistake must be acknowledged and explained in the supporting affidavit. There was no such acknowledgment or explanation in this case. Lastly, the respondent argued that the court should not act in vain as the intended appeal had no merit. The Superior court judge had appreciated the standard of proof and found no merit in the petition.

Held:

1. Under rule 4 of the Court of Appeal Rules, the Court is vested with a perfectly clear and unfettered discretion to extend the time limited by the Rules or its own decisions.

2. The Court’s discretion under rule 4 of the Court of Appeal Rules, like all judicial discretions, is to be exercised judicially, that is to say, on sound reason rather than whim, caprice or sympathy.

3. In the exercise of its discretion, the Court’s primary concern should be to do justice to the parties. The Court should, among other things, consider: -

- the length of the delay in lodging the notice and record of appeal;

- where applicable, the delay in lodging the application for extension of time, as well as the explanation thereof;

- whether or not the intended appeal is arguable;

- the prejudice to the respondent if the application is granted;

- the public importance, if any, of the matter; and

- generally the requirements of the interest of justice in the case.

4. Rule 85 (1)(h) of the Court of Appeal Rules makes it mandatory for the record of appeal to contain the certified copy of the decree or order appealed against.

5. Mistakes by counsel are not a reason for denying an otherwise deserving applicant of a favourable exercise of discretion.

Application allowed.

Cases

1. Titus, George Roine & another v John P Nangurai Civil Application No NAI 249 of 1998

2. Mwai v Wanaina (No 2) [1982] KLR 33

3. Muraria John Ongeri & others v Paul Matundura Civil Application No NAI 301 of 2003

4. Mutiso, Leo Sila v Rose Hellen Wangari Mwangi Civil Application No NAI 251 of 1977

5. Grindlays Bank International (K) Ltd & another v George Barloor Civil Application No NAI 257 of 1995

6. Murai v Wainaina (No 4) [1982] KLR 38

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 81(1); 85(1) (h)

Advocates

Mr Kabaka for the applicant

Mr P N Ndungu for the respondent

Gulam & another v Jirongo

High Court, at Nairobi March 2, 2004

Ringera J

Civil Suit No 393 of 2003

Civil Practice and Procedure - affidavit – verifying affidavit - to be confined to matters within the deponent’s knowledge - whether a court has a discetion not to strike out a plaint which is accompanied by a defective verifying affidavit.

Civil Practice and Procedure – striking out defence – court’s discretion.

By Chamber Summons under order VI rules 13 (1) (b) (c) and (d) and 16 of the Civil Procedure Rules, the plaintiff sought orders that the defendant’s defence be struck out on the grounds that it did not disclose any defence in law and that it was an abuse of the process of the Court, was scandalous, frivolous and vexatious and would delay the fair trial of the action. The application was opposed by means of a replying affidavit. The defendant’s advocate further filed a notice of a preliminary objection to the application. The substance of the preliminary objection was that the application was premised upon a suit which was fatally defective and did not lie. Both the application and the preliminary objection were heard together.

Held:

1. A preliminary point of law may be taken at any stage of the proceedings.

2. A verifying affidavit should be a proper affidavit in the first instance. An affidavit which merely says the deponent is conversant with the facts and verifies the correctness of the averments in the plaint is not a proper affidavit because one may be conversant with the facts from personal knowledge or information.

3. An affidavit by one plaintiff verifying the correctness of the facts of a plaint, where the plaintiffs are two, and where the deponent does not state that he is making it on behalf of himself and the other plaintiff and the authority and basis on which he would so do on behalf of that other plaintiff, is defective.

4. The Court has a discretion not to strike out a plaint which is accompanied by a defective verifying affidavit. The effected party may make an oral application for the exercise of the Court’s discretion and the Court should exercise its discretion as appropriate in the light of the circumstances.

5. Rules of Procedure should be seen as hand maidens of justice and not its mistress and, accordingly, unless procedural lapses have caused the adversary a prejudice which cannot be compensated with costs or there is clear manifestation of an intention to overreach, the same should not be accorded fatal consequences.

6. A court cannot consider an issue to be raised otherwise than by the pleadings.

7. When the defence raises a substantial and bona fide arguabale point, it cannot be struck out under order VI rule 13 (1) (b) (c) and (e) of the Civil Procedure Rules.

Verifying affidavit struck out, plaintiff granted leave to file a fresh affidavit.

Cases

1. Noormohamed Janmohamed v Karsamli Virji Madhani (1953) 20 EACA 8

2. Standard Goods Corporation Ltd v Harakhchanda Nathu and Co (1950) EACA 99

3. Kibunja, Stephen v Forest Road Flats High Court Civil Case No 371 of 2000

4. Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] 1 EA 127

5. Jovenna East Africa Ltd v Silvester Onyango Etal High Court Civil Case No 1086 of 2002

6. Registrar of Co-operative Societies v Pearl Dry Cleaners Ltd HCCC No 1440 of 2000

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13 (1) (b) (c) and (d); order VII rule 1 (2); order XVIII rule 7; order XVIII rule 3; order VI rule 16

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

Advocates

Mr Magan for Plaintiffs/Applicants.

Mr Wandabwa for Defendant/Respondent.

Deposit Protection Fund Board v Sunbeam

Supermarket Ltd & 2 others

High Court, at Nairobi January 20, 2004

Ringera J

Civil Case No 3099 of 1996

Civil Practice and Procedure - supporting affidavit – in an application of summary judgments – depositions to be included in such affidavit.

Evidence – parole evidence – such evidence not to be admitted to vary, add to or contradict express contractual terms.

By motion brought under order 35 rule 1 and order 6 rule 13 (1) (b) of the Civil Procedure Rules, the plaintiff prayed for summary judgment as prayed in the plaint and that the counter claim by the defendant be struck out. In opposition the defendants alleged that the application was bad in law for being supported by an incompetent affidavit.

Held:

1. In an application for summary judgment by a liquidator, the liquidation agent, in whose custody pertinent documents are, is a person who can positively verify the pertinent facts and is accordingly a competent deponent of the supporting affidavit within the contemplation of order 31 rule 1 (1).

2. The averment as to the existence of the debt is one condition precedent to the invocation of the summary procedure pursuant to the provision of order 35 rule 1 (1) (a) since the plaintiff must show that the claim is for a liquidated demand. In addition to his, the plaintiff must depose to the non-existence of a defence to such a claim.

3. Failure to strictly comply with the manner of making the application for summary judgment as prescribed in form 3A is not fatal.

4. A motion for summary judgment is not an interlocutory application. It is a final application and accordingly depositions of fact in support of such motion should be based on personal knowledge and not information and/ or belief.

5. The law relating to the admissibility in evidence of separate prior agreements to contradict, add, vary or subtract from written contracts is codified in section 98 of the Evidence Act.

Cases

1. Mwanthi v Imanene [1982] KLR 323; [1982-88] 1 KAR 28

2. Langley Constructions (Brixham) Ltd v Wells [1969] 2 All ER 46; [1969] 1 WLR 503; 113 SJ 203

3. Gupta v Continental Builders Ltd [1978] KLR 83

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1 rule 1(2); order VI rule 13 (1) (b) order XVIII rule 3(1)

2. Interpretation and General Provisions Act, (cap 2) section 72

3. Evidence Act (cap 80) section 98

4. Companies Act (cap 486) section 228

5. Companies Act [UK] 1948 section 231

Royal Insurance Company of East Africa

& another v Superfreighters Ltd & 4 others

High Court, at Nairobi December 8, 2003

Ringera J

Civil Case No 2983 of 1994

Contract - carriage by road - common carrier – where a person asserts that another is a common carrier – evidential burden imposed – where the evidential burden is not discharged – whether the carrier can still be liable – when negligence may be presumed on the part of a carrier – test as to whether a carrier is a common carrier.

Civil Practice and Procedure - pleadings – allegation of fact made in pleading – when such allegation shall not be deemed to be admitted by the opposite party – joinder of issue operating as a denial of the fact – whether the joinder is concluded by the pleadings.

Kenya Seed Company Ltd, the 2nd plaintiff, purchased a consignment of 240 bags of simlaw seeds from J J Ohlsens Enke, which was insured by the Royal Insurance Company of East Africa, the 1st plaintiff herein.

The 1st defendant was contracted by the 2ndplaintiff to clear the consignment at the port of Mombasa and arrange for its safe transportation to the 2^nd plaintiff’s premises in Nairobi. The 1st defendant then assigned the duty of transporting the container to the 2nd, 3rd, 4th and 5th defendants who were trading as Akil transporters.

Upon arrival of the consignment at the warehouse of Akil transporters, the container was partially stripped in order to lighten it by 80 bags for transportation to the 2nd plaintiff’s premises in Nairobi. The defendants did not verify the quantity of the bags that had remained in the container.

When the remainder of the bags were delivered to the 2nd plaintiff, a shortfall of 34 bags was discovered.

The plaintiffs alleged that the 34 bags were lost while in possession of either the clearing and forwarding agent or Akil transporters or both of them. The plaintiffs contended further that the loss of 34 bags was due to the defendant’s negligence and in breach of Akil transporters duty as common carriers.

The 1st defendant denied loss to the plaintiffs or that it was negligent as alleged. It averred that it never had in its possession any of the bags which were allegedly lost. Akil transporters on their part alleged that they were not common carriers but private carriers with limiting conditions on liability. The transporter further contended that if the plaintiffs lost the 34 bags, it was due to their own negligence in that they failed to ensure that they had actually received delivery of 240 bags.

Held:

1. The principle of adjective law is that he who asserts must prove. If a person asserts that another is a common carrier, it is incumbent upon the former to prove that the other held himself out to the public as a common carrier.

2. The test of whether a carrier is a common carrier as opposed to a private carrier is whether he holds himself out to the public as prepared to carry generally for the public and not for particular members thereof.

3. An allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposite party unless it is denied by that party in his pleading or a joinder of issue operates as a denial of it.

4. Where a joinder of issue operates as a denial of the fact, it is open to adjudication on the basis of evidence and is not concluded by the pleadings.

5. In the event that a party fails to discharge the evidential burden of proving that another party has not discharged its duty as a common carrier, the carrier will not be liable unless negligence is proved on its part.

6. By operation of the rule of evidence expressed as res ipsa loquitor, negligence will be presumed on the part of a carrier if goods are lost while in its possession and no explanation is offered as to how the loss occurred.

Judgment for the second plaintiff.

Cases

Express Transport Co Ltd v BAT Tanzania Ltd [1968] EA 443

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order VI rule 9(1)

Macharia v Guardian Bank Ltd & another

High Court, at Nairobi May 2, 2003

Ringera J

Civil Suit No 938 of 2000

Civil Practice and Procedure - amendment of pleadings – leave to amend defence and enjoin a third party – amendments sought before trial to be granted if necessary to avoid multiplicity of proceedings – prejudice to adverse party – no injustice if such party can be compensated by costs.

This was an application by the first defendant for leave to amend it’s defence and to join one Manish Shah as a third defendant to the counterclaim. The first defendant averred that the amendments sought were necessary to avoid multiplicity of proceedings and to bring all matters in contention between the parties before the Court and have them tried in one action. The plaintiff contended on the other hand that if the amendments were allowed the plaintiff’s position would be irretrievably altered.

Held:

1. Amendments sought before trial should be freely granted if such amendments are necessary to put the facts in dispute between the parties before the Court for a proper adjudication of the matter and if there would be no injustice to the adverse party.

2. There can be no injustice if the prejudice to the adverse party can be compensated by an order for costs.

Application allowed.

Cases

1. Steward v North Metropolitan Tramways Co Ltd (1886) 16 QBD 178

2. Bell & another v Lever Brothers Ltd [1932] AC 161; [1931] All ER

Rep 11; 101 LJKB 129

Texts

Venkataraman, TL (Ed) (1967) Mulla on the Code of Civil Procedure

NM Tripathi Private Ltd: Bombay 13th Edn Vol 1 p 728

Statutes

Civil Procedure Act (cap 21) order VI rule 6(2)

Advocates

Mr Thiga for Plaintiff/Respondent

Mr Fraser for Defendant/Applicant

Election petition - procedure - requirement that petitioner must personally sign the petition - basis for that requirement - whether the petitioner must sign in a particular manner - discrepancy in signatures - decision for the election court - weight given to technicalities - section 23(1)(d) of the National Assembly and Presidential Elections Act (cap 7).

Dominic Charles Muthuuri v National Industrial Credit Bank Ltd

High Court, at Nairobi March 18, 2003

Ringera J

Civil Case No 793 of 2001

Employment law - dismissal – dismissal of plaintiff without giving reason – dismissal in accordance with contract – assurances made prior to making of contract – whether relevant in interpreting contract – master and servant relationship – whether servant may be dismissed without a reason.

Employment law - dismissal - damages for unlawful dismissal - how such damages are quantified - whether court can award exemplary damages - whether harshness accompanying dimissal and inability to find alternative employment relevant factors in assessing damages.

Contract - terms of contract - implied terms - whether extrinsic terms admissible to vary contract - whether implied terms can be allowed where they are manifestly inconsistent with expess terms.

Equity - equitable remedies - specific performance - whether such remedy can issue to compel performance of a contract of service.

On or about 4th December, 1998, the plaintiff entered into a written contract of employment with the defendant bank. On or about 25th August 2000 the defendant bank unilaterally without assigning any reason purported to terminate the plaintiff’s employment before it’s due date. The plaintiff further alleged that he had been enticed to join the defendant bank and that he had received assurances from the Managing Director and the

Company Secretary that he needed not worry about the fact that the contract provided for a one month’s notice prior to termination. Prior to his dismissal, the plaintiff had not been cautioned, reprimanded or warned before his employment was terminated.

Held:

1. The history preceding the execution of a contract and any discussions or assurances in that regard are superseded by the subsequent written contract which becomes the exclusive memorial of the parties agreement.

2. No extrinsic evidence is admissible to contradict, vary, add to or subtract from the terms of the document.

3. In determining the lawfulness or otherwise of termination of employment whose terms and conditions have been reduced to contract the only test was whether the said termination was in accordance with the contract itself.

4. The plaintiff’s contract having been terminated strictly in accordance with clause 5(b) of the contract of service, the plaintiff was lawfully dismissed.

5. Any expectations of a party which have not been expressed in the contract of employment are only relevant if deemed to be implied terms.

6. Terms in a contract cannot be implied if they are manifestly inconsistent with the express ones. Although the plaintiff had not been warned or reprimanded before his employment was terminated, his contract of employment did not envisage such procedures as conditional precedent to the termination of contract.

7. There cannot be specific performance of a contract of service and a master can terminate the contract with his servant at any time and for any reason or for none.

8. In a pure case of master and servant the question does not at all depend on whether the master gave the servant a hearing. It depends on whether the facts emerging at trial prove breach of contract.

9. (Obiter) The measure of damages for unlawful dismissal is the amount which the employee would have earned during the period of notice if the employment was terminable by notice or from the period of dismissal up to the time the contract would have ended if the employment was on a fixed terms basis.

10. In an action for wrongful dismissal, the Court in assessing the damages, is debarred from awarding exemplary damages because of circumstances of harshness and oppression accompanying the dismissal and injuring the feelings of the servant and also from considering the fact that the dismissed will make it more difficult for him to obtain fresh employment.

Suit dismissed with costs.

Cases

1. CPC Industrial Products (K) Limited v Omweria Ngima Civil Appeal No 197 of 1992

2. Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66; [1963] 2 WLR 935

3. Addis v Gramophone Co Ltd [1909] AC 488

4. Ombanya v Gailey & Roberts Ltd [1974] EA 522

5. Rift Valley Textiles Ltd v Edward Onyango Oganda Civil Appeal No 27 of 1992

Statutes

Employment Act (cap 226) section 14