Mt Kenya Safari Club Ltd v Mukawa (Hotels)Holdings Ltd

High Court, at Nairobi

April 6, 1989

Rauf J

Civil Case No 2408 of 1987

Contract – interpretation of contracts – distinction between licenses terminable at will and other contracts – agreement for the use of the plaintiff’s trademarks by the defendant for 10 years – agreement allowing plaintiff to terminate after giving six months notice – agreement silent on defendant’s right to terminate – whether agreement creating a contractual  licence – whether defendant entitled to terminate before the expiry of the 10 years.

Trademarks – property in a trademark - agreement allowing the use of plaintiff’s trademark by defendant for 10 years – whether agreement a contractual license – whether agreement creating interest in the trademark in the defendant’s favour.

The preliminary issue for determination was whether an agreement entered into between the plaintiff and the defendant was a contract binding the defendant to use the trademarks of the plaintiff for the stipulated period of 10 years or whether it was a contractual licence terminable by the defendant at will without giving rise to any penalty in damages.

Clause II of the agreement entitled the plaintiff to terminate it by giving six months notice but it was silent on whether the defendant, who had given notice of its intention to terminate, had any such corresponding right.

Held:

1. The words and phrases used in the agreement gave rise to the indisputable inference that the agreement was a contractual licence.

2. Prima facie, every license is revocable. At common law, contractual licences can be effectively revoked at any time whether or not they contain provisions regarding duration.

3. Clause II of the agreement did not confer any special right on the plaintiff; on the contrary, it abridged its common law right to terminate at will.

4. The plaintiff was not entitled to any remedy because there was no breach on the part of the defendant.

5. (Obiter) The agreement for the user of the plaintiff’s trademarks by the defendant did not create an interest in the trademarks in favour of the defendant as is usually done in tenancy agreements and leases.

Prayer “c” of the plaint dismissed.

Cases

1. Winter Garden Theatre (London) Ltd v Millenium Productions Ltd [1947] 2 All ER 331; [1948] AC 173; [1947] LJR 1422; 177 LT 349 HL

2. Staffordshire Area Health Authority v South Staffordshire Waterworks Company [1978] 3 All ER 769

3. Thomas v Sorrel Vaugh 330; 3 Keb 264; Freem KB 137; 30 Digest 501, 1594

4. Wood v Leadbitter 13 M & W 844

Texts

Hailsham, Lord et al (Eds) (1973 - 87) Halsbury’s Laws of England London: Butterworths 4th Edn Vol IX pp 363 - 365 paras 528, 529 and 530

Statutes

No statutes referred.

Advocates

Mr Hewitt for the Plaintiff

Mr Lakha for the Defendant

Miller v Miller (No 2)

High Court, at Nairobi

June 28, 1988

Rauf J

Civil Case No 2855 of 1987

Civil Practice and Procedure – disqualification of judicial officer –defendant claiming that the presiding judge was a friend of the plaintiff –whether plaintiff had demonstrated that justice would not be done or be seen to be done.

Civil Practice and Procedure – in camera proceedings versus public proceedings–– exceptions to the general rule that court proceedings to be conducted in public–– Constitution section 77(11)(a) – embarrassing details of domestic disputes not to be aired in public – considerations of public morality and policy – whether such considerations applicable in this case.

This was a divorce matter filed by a sitting Chief Justice against his spouse.

The defendant filed a notice of motion seeking to disqualify the presiding judge from hearing the case and asking the court to order that the proceedings be held in public. She deponed that the presiding judge was a close friend of the plaintiff.

Held:

1. The Constitution in section 77(11)(a) created exceptions to the general rule that court proceedings were to be conducted in public. The exceptions concern, among other things, public morality, the welfare of persons and children under 18 years of age and the protection of private lives of persons involved in the proceedings. All these were relevant in these proceedings.

2. In Kenya the court has wide powers to impose secrecy in the matters relating to the exceptions in section 77(11)(a) of the Constitution.

3. The public morality and overriding consideration of innocent persons dictate that embarrassing details of domestic disputes ought not to be aired in public. This time-honoured and deep-rooted practice based on sound public policy carries the force of law.

4. The disqualification of a judge is a serious matter. There was no reason for the defendant to warrant a suspicion that justice would not be done and seen to be done in this case.

Application dismissed.

Cases

1. Shilenje v Republic [1980] KLR 132

2. Sest v Sest [1913] AC 417

3. Herman v Hane Office 1982 2 Weakh LT 338

Texts

Shetreet, S (1976) Judges on Trial North Holland Publishing Co. pp 303, 307

Statutes

Constitution of Kenya sections 77(10), (11), (11)(a)

Miller v Miller

High Court, at Nairobi 

January 22, 1988

Rauf J

Civil Case No 2855 of 1987

Civil Practice and Procedure – transfer of suit – suit seeking declaration of dissolution of marriage–– suit filed in the High Court – defendant seeking transfer of suit to District Magistrate’s Court – whether transfer would be to fetter the High Court’s unlimited original jurisdiction – whether by filing counterclaim the defendant had submitted to the Court’s jurisdiction - Constitution section 60(1); Civil Procedure Act (cap 21) sections 11; 18(1)(a) – Magistrates’ Courts Act section 9(a)

Constitutional law – jurisdiction of the High Court – unlimited original jurisdiction conferred under the Constitution section 60(1) – whether conferment of the jurisdiction absolute–– party seeking to transfer suit for dissolution of marriage from High Court to subordinate court–– whether High Court the proper forum for the suit.

Equity – declaration–– plaintiff seeking declaration for dissolution of marriage – suit filed in the High Court - defendant seeking to transfer suit to subordinate court – whether High Court the proper forum for the suit.

The defendant/applicant sought a transfer of the suit from the High Court to a District Magistrate’s Court. She argued that under section 11 of the Civil Procedure Act (cap 21), every suit is required to be instituted in the court of the lowest grade competent to try it and that under section 9 of the Magistrates’ Courts Act, the suit could be tried by a District Magistrate.

The plaintiff/respondent opposed the application. He argued that under section 60(1) of the Constitution, the High Court had unlimited original jurisdiction; that under section 3(1) of the Judicature Act (cap 8), the subordinate courts’ jurisdiction is limited and has to be exercised in conformity with the Constitution. It was further submitted that one of the prayers sought was a declaration that the parties’ marriage be dissolved, which was an equitable remedy and therefore the High Court was the proper forum for the suit.

The defendant had also filed a counterclaim for an order of judicial separation, custody of children and maintenance.

Held:

1. The Constitution in section 60(1) did not create any exception to the High Court’s unlimited original jurisdiction in civil and criminal cases and therefore that jurisdiction could not be ousted unless by a constitutional amendment of that section. Moreover, the High Court had supervisory jurisdiction over the functioning of subordinate courts in addition to its appellate jurisdiction.

2. The provisions of the Civil Procedure Act (cap 21) sections 11 and 18(1) and the Magistrates’ Courts Act section 9 were to be exercised in conformity with the Constitution as provided by the Judicature Act (cap 8) section 3(1)(a).

3. The Judicature Act section 3(2) expressly confirmed that the High Court shall be guided by customary law in civil cases in certain instances. This was consistent and in conformity with the provisions of section 60(1) of the Constitution.

4. Therefore, the plaintiff had a right to initiate any proceedings in the High Court. He had the choice of a forum subject only to the incidence of costs.

5. By filing the counterclaim, the defendant had submitted to the High Court’s jurisdiction. Some issues raised in it were complex and beyond the jurisdiction of a subordinate court.

6. The plaintiff’s main prayer was for a declaration which being an equitable remedy, was best dealt with in the High Court.

Application dismissed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Act (cap 21) sections 11, 18(1)(a)

2. Magistrate’s Court’s Act (cap 10) sections 2, 9(a)

3. Constitution of Kenya section 60(1)

4. Judicature Act (cap 8) section 3(1)

5. Guardianship of Infants Act (cap 144)

Advocates

Kiraitu for the Defendant/Applicant

Lakha for the Plaintiff/Respondent

Kiteta Kivuva v Rex Motors Ltd & 2 others

High Court, at Nairobi October 13, 1987

Rauf J

Civil Case No 625 of 1979

Civil Practice and Procedure – amendment of pleadings – amendment seeking to substitute plaintiff – new plaintiff’s claim against defendants time-barred – no extension of time sought under the Limitation of Actions Act (cap22) – whether such amendment may be allowed.

The plaintiff filed a suit against the defendants, describing himself as the personal representative and administrator of a certain deceased person.

The plaintiff later acknowledged that he had no cause of action against the defendants and that the description of himself as legal representative and administrator may be untenable. He sought to amend the plaint in order to substitute for himself the widow and dependant of the deceased person.

Held:

1. The amendment, if allowed, would in effect allow the widow to bring against the defendants her claim which was time-barred under the Limitation of Actions Act (cap 22) section 4(1) and the Fatal Accidents Act (cap 26).

2. A plaintiff cannot be substituted in a time-barred cause without first obtaining leave to extend the time under the Limitation of Actions Act.

Application dismissed.

Cases

1. Nzirane v Lukwago [1971] EA 328

2. Marshall v London Passenger Transport Board [1936] 3 All ER 83

3. Mweu v Kabai & another [1972] EA 242

Statutes

1. Limitation of Actions Act (cap 22) sections 4(1),27,27(2),28,29,30

2. Fatal Accidents Act (cap 32) section 4(1)

Advocates

Mr VRD Patel for the 1st Defendant.