Natgil Enterprises Ltd v Gatukuyu Coffee Growers

Co-op & 2 others

High Court, at Nairobi December 2, 1985

Schofield J

Civil Application No 648 of 1985

Contract – by co-operative society – society’s by-law providing that contract to be signed by designated official – verbal contract made with supplier by Management Committee of society – contract not signed by designated official – whether contract binding on society.

The plaintiff sued the defendant for the payment for certain goods delivered by it to the 1st defendant. The defendant joined the 1st and 2nd third parties (Afrocox and Ashford) to the proceedings because Afrocox, apparently acting as the commission agents for Ashford, had received the goods from the defendants.

At a meeting of the Management Committee of the defendant, it was agreed that the contract between Ashford and the defendant be terminated and that a fresh contract be entered into between the plaintiff and the defendant and that the outstanding payments for the goods be made to the plaintiff.

In answer to the plaintiff’s demand for the contract price, the defendant sought to rely on alleged misrepresentations and on a by-law which provided that all contracts should be signed by designated officials unless decided by General Meeting.

Held:

1. The by-Law was intended to control the internal administration of the Society and could not be said to be binding on the whole world especially in a case as this one where a contracting party was dealing with the Management Committee.

2. Even if there were misrepresentations made on behalf of the plaintiff to the defendant, it could not be seen how those misrepresentations prejudiced the defendant in the contract.

3. The defendant was liable to the plaintiff under the contract.

Judgment for the Plaintiff.

Cases

Taws Ltd v Othaya Farmers’ Co-operative Society Ltd [1977] KLR 92

Statutes

No statutes referred.

Advocates

Mr Nowrojee for the Plaintiff/Applicant

Mr Kinuthia for the Defendant

Mr Kirundi for the First Third Party

Mr Kapila for the Second Third Party

Mulumba Kasongo Kalembakana  v Republic

 High Court, at Nairobi

August 7, 1985

Schofield J

Criminal Appeal No 1573 of 1984

 (Appeal from the District Magistrate’s Court at Kibera, Miss N Nyaanga)

Criminal law – obtaining by false pretences – contrary to Penal Code (cap 63) section 313 – ingredients of the offence – appellant obtaining loan to pay for mineral substance – substance discovered to be red paint – appellant believing substance to be mercury – whether offence committed..

Sentencing – unlawful sentence – sentence of imprisonment above statutory maximum – offence of obtaining by false pretences – Penal Code (cap 63) section 313 – sentence of four years’ imprisonment - whether such sentence proper.

The appellant was charged with obtaining money by false pretences contrary to section 313 of the Penal Code (cap 63). It had been alleged against him that he had obtained money from the complainant on the pretext that it was a loan which he needed to pay for a quantity of mercury which had been delivered to him and which he intended to sell to another person. It later turned out that the substance was not mercury but red paint. The appellant denied taking any money from the complainant. After trial, the appellant was convicted and sentenced to four years’ imprisonment. The appellant appealed.

Held:

1. Though it had been proved that the appellant had presented the red paint to the complainant as red mercury, it hadn’t been proved that the appellant knew that the substance was not red mercury.
2. The trial magistrate had failed to give proper consideration to the evidence which if she had, she may have doubted that the appellant intended to defraud the complainant and the appellant’s conviction was therefore unsafe.
3. The sentence imposed on the appellant was above the maximum and the sentence was therefore unlawful.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 313

Advocates

Appellant absent and unrepresented

Miss W Ngugi, State Counsel, for the Respondent

Gordhandas Dharamshi & Brothers Limited v Republic

High Court, at Nairobi

February 18, 1985

Schofield J

Criminal Appeal No 1419 of 1984

(Appeal from the Second Class District Magistrate’s Court at Nairobi, Miss B L Obayo)

Evidence - exhibits - failure by defence to object to production of - whether defence precluded from denying possession of exhibit.

The appellant was convicted on seven counts of manufacturing for sale steel wire nails in contravention of sections 9(2) and 9(4) as read with section 15(1) of the Standards Act (cap 496). The evidence given by two officers of the Kenya Bureau of Standards was that samples of nails had been taken from the appellant’s factory which upon testing were found not to conform to the Bureau’s standards.

On the appellant’s argument that the prosecution had failed to establish a claim of possession in respect of the nails, the trial magistrate observed that the defence could not make such a claim as it had not objected to the production of the nails as exhibits. The appellant appealed.

Held:

1. By failing to object to the production of the exhibits, the defence could not have been said to accept that they were the materials taken from the appellant.
2. There was no proof that the samples examined were those taken from the appellant’s premises and in the absence of such proof, the conviction was unsafe.

Appeal allowed.

Cases

No cases referred to

 Statutes

1. Standards Act (cap 496) sections 9(2), 9(4), 15(1)

Advocates

1. Mr SS Mandla for the Appellant
2. Miss LG Mbarire, State Counsel, for the Respondent

Ogutu & another v Okumu

High Court, at Kisumu 1982

Schofield J

Civil Appeal No 15 of 1982

(Appeal from the District Magistrate’s Court at Rongo)

Constitutional law - constitutional rights - fundamental rights - right to personal liberty - personal liberty of a wife versus rights of the husband under customary law - court ordering that wife be returned to her husband - whether such a court order is proper - whether wife’s constitutional right to personal liberty was infringed - where court order has the effect of unconstitutionally holding a person in servitude.

Customary law - application of - when courts may be guided by African customary law - when customary law may not apply where it is repugnant to justice - when customary law is inconsistent with written law.

Husband and wife– rights of – right to personal liberty - whether wife may be obliged to reside with husband – court ordering that wife be retrned to husband – ex-wife not a party to the suit – whether court order proper.

Natural justice - rules of - when a decision of the court is contrary to the rules of natural justice - court making a decision adversely affecting a person not a party to the suit.

Children - orders relating to - factors to be considered when making orders affecting children.

The first appellant was the father of one R, who was married to the second appellant in 1963 and bore him one child. About ten years later, R left the second appellant and began to live with the respondent as husband and wife, bearing the respondent two children. In 1981, the second appellant, together with three police officers, took R and her three children back to her father, the first appellant.

In a dispute between the appellants and the respondent before a district magistrate’s court in which dispute R was not named as a party, the court, purporting to be guided by Luo customary law, ordered the return of R and her three children to the respondent.

The appellants appealed against the order.

Held:

1. The court order requiring the wife to return to her ex-husband infringes on the fundamental rights and personal liberty of the person contrary to chapter V of the Constitution.

2. An adult is free to choose their place of residence; it is not within the courts’ jurisdiction to make an order which determines where an adult should reside.

3. The Courts of Justice are to be guided by african customary law in civil cases in which one or more of the parties is subject to or affected by, so far as is applicable, provided that it is not repugnant to justice or inconsistent with any one written law. In this instance the custom requiring the ex-wife to be returned to her husband was contarry to the Constitution and was repugnant to justice.

4. When the courts are making orders that affect children, the issue should be considered seperately and the best interests of the child must be given paramount consideration.

Appeal allowed.

Cases

1. Republic v Kadhi, Kisumu Ex parte Nasreen [1973] EA 153

2. R v Jackson [1891] 1 QB 671

Statutes

1. Constitution of Kenya chapter V

2. Judicature Act (cap 8 ) section 3(2)

3. Civil Procedure Rules (cap 21 Sub Leg)1982,