Muthui v Muthui

High Court, at Eldoret May 8, 2003

Tunya J

Probate and Administration Cause No 267 of 1997

Civil Practice and Procedure – stay of execution –– staying of enforcement of judgment – pending the hearing and determination of the intended appeal – when refusal of stay renders application nugatory.

The applicant, a beneficiary of the deceased’s estate, brought a motion for orders that the enforcement of a judgment be stayed pending the hearing and determination of an intended appeal.

The application was brought on grounds that the judgment did not distribute the deceased’s shares in Highlands Inn Limited and that the 1^st respondent had interfered in the running of the business which could occasion the applicant substantial loss if the stay is not granted.

Held:

1. Where the act complained of has already been effected, a prayer for stay is not tenable. A stay is meant to prevent breach of a party’s legal right before it takes place. At best this court may make orders that will bar him from disposing of that business.

2. The applicant held only one share hence her stake in the said business be described as substantial.

3. The status quo of Highlands Inn Ltd and the premises upon which it operated was feasible and it was to be preserved pending the hearing and determination of the intended appeal.

4. The status quo of the deceased’s estate may be maintained and preserved as it existed prior to the date of the aforesaid judgment.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XLI rule 4

David Kadima Wamukoya v Kipsaina Land Disputes

Tribunal & another

High Court, at Kitale January 30, 2003

Tunya J

Miscellaneous Civil Application No 91 of 1999

Land law – Land Disputes Tribunal – power of tribunal to determine whether or not a person is a trespasser – whether registration of the suit land is material – where a person is named but does not participate in the decision of the tribunal – whether presence of the name contravenes the composition of the tribunal – requirement that the tribunal gives reasons for its decision – contents of an award given by the tribunal – how the award should be dated – whether a rubber stamp satisfies the requirement that an award should be dated – section 3(8) of the Land Disputes Tribunals Act, 1990.

The applicant sought an order of certiorari to quash the decision of the Kipsaina Land Disputes Tribunal. It was alleged that the tribunal acted without jurisdiction in that what was in issue was a succession dispute.

The applicant argued that the elders in the tribunal did not date the award contrary to the mandatory provisions of section 3(8) of the Land Disputes Tribunals Act 1990. He further argued that although the tribunal should have been composed of 3 or 5 persons, there were 4 people presiding over the proceedings but the fourth one did not sign the award.

The second respondent denied that it was a succession matter and affirmed that her claim was to have the applicant evicted from the suit land. She submitted that only 3 elders presided over the proceedings and dated the award by rubber-stamping it.

Held:

1. Section 3 of the Land Disputes Tribunals Act 1990 gives the Tribunal jurisdiction to determine whether or not a person is a trespasser. In such an instance, it is immaterial that the suit land is registered.

2. In land dispute proceedings, where a person is named but does not participate in the proceedings or in the decision of the Tribunal, the mere presence of his name does not contravene the composition of such Tribunal under section 4(2) of the Land Disputes Tribunals Act, 1990.

3. Under section 3(8) of the Land Disputes Tribunals Act, 1990 the tribunal is obligated to give reasons for its decision, which shall contain a summary of the issues and the determination thereof, and which shall be dated and signed by each member.

4. The Land Disputes Tribunals Act 1990 is silent on how an award should be dated. Given a liberal interpretation, the award should indicate the day, month and year that it was signed by the Tribunal members. A date rubber stamp, as was used in the instant case, satisfies the requirement of section 3(8) of the Land disputes Tribunals Act, 1990

Application dismissed.

Cases

No cases referred to.

Statutes

Land Disputes Tribunals Act, No 18 of 1990 sections 3(8), 4(2)

Wilson Kalya & another v Standard Ltd & 2 others

High Court, at Eldoret

October 30, 2002

Tunya J

Civil Case No 165 of 1999

Defamation – Libel – damages for libel – applicable principles – assessment of special and aggravated damages.

Damages – for defamation - libel – assessment of and measure of damages – factors to be taken into consideration.

The plaintiffs, who were advocates of the High Court, filed a suit against the defendants for libel. The alleged libel arose in respect of a newspaper article which, among other things, imputed that the plaintiffs had stolen from the Kenya Co-operative Creameries and caused its collapse. The statement of defence was struck out and the plaintiffs were allowed to fix the suit for assessment of damages.

Held:

1. In deciding the amount of damages to be awarded for libel, the court should take into account the plaintiff’s standing in society and the violent damage to their reputation.

2. The court in assessing aggravated damages must look at the conduct of both parties before action, after action and during trial. Malicious and insulting conduct on the part of the defendants ought to aggravate the damages.

3. The conduct of the defendants in this case was indicative of recklessness and malice and that conduct made them liable to pay aggravated damages.

4. An apology tendered after a long period of time would have no effect on the damage to the plaintiff’s reputation. It therefore was immaterial that the plaintiffs did already mitigate through paid advertisement or that they had been compensated. The plaintiffs are therefore entitled to damages in lieu of an apology.

 Damages awarded to the plaintiffs.

Cases

1. Biwott, Kipyator Nicholas v Clays Ltd & 3 others High Court Civil Case No 1067 of 1999 consolidated with Kipyator Nicholas Biwott v Dr Ian West & Chester Stern High Court Civil Case No 1068 of 1999

2.Sutcliffe v Pressdram Ltd [1990] 1 All ER 269; [1991] 1 QB 153; [1990] 2 WLR 271

3. Kulei, Joshua v Kalamka Ltd Nairobi High Court Civil Case No 375 of 1997

4. Machira, John P v Wangethi Mwangi & another NAI High Court Civil Case No 1709 of 1996

Texts

Milimo, QC; Rogers, VH (1998) Gatley on Libel & Slander London: Sweet & Maxwell 9th Edn p 76 para 3.11

Statutes

 Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13(1)(b), (d)

Kandie & 2 others v Beatrice Jepkemoi Cherogony

High Court, at Eldoret

October 16, 2002

Tunya J

Civil Appeal No 76 of 2002

(Appeal from the judgment of the Resident Magistrate’s Court at Eldoret, PN Ngigi Esq, in Eldoret CMCC 553 of 2002 dated July 6, 2002)

Burial dispute – customary law – application of burial customs – deceased’s widow desiring to bury her husband at his farm away from his ancestral home – deceased’s father and brothers desiring to bury his body at his ancestral home – whether deceased’s customary law applicable.

Customary law – Tugen customary law - burial customs – custom providing that a man should be buried in his ancestral home – deceased’s widow desiring to bury his body at his farm away from his ancestral home – whether Tugen burial customs applicable to the deceased.

The respondent widow embarked on making funeral arrangements for her deceased husband who she intended to bury in Molo where he owned a piece of land. The deceased’s father and two brothers, however, asserted that the deceased was to be buried in his ancestral home in Baringo District. The respondent filed a suit in the Chief Magistrate’s Court in which the court found in her favour and restrained the appellants from interfering with her funeral and burial arrangements. The appellants appealed against the decision, arguing that both the deceased and the respondent were Tugens from Baringo District and that the law applicable to the deceased’s burial place was his personal law, which was the customary law of the Tugen. According to that law, it was submitted, deceased persons were to be buried in their rural ancestral homes.

Held:

1. It was clear that both the deceased and the respondent subscribed to the Tugen Customs as to burial. During his lifetime, the deceased had maintained regular contact with his ancestral home, where he had even buried his son despite having a large farm in Molo.

2. The customary law of the Tugen was that a man must be buried by his father and family members at his ancestral home. It was never suggested that such a custom was inconsistent with any written law and in the case of Ougo v Otieno [1987] KLR 407, the Court of Appeal held that it was not repugnant to justice and morality.

3. The trial magistrate had misconceived the evidence and misdirected herself in ordering that the deceased be buried at Molo primarily because he had land there. Ownership of land was not a relevant factor in determining the burial place and in any case, there was evidence that the deceased owned land in Baringo as well.

4. The proper place to bury the deceased was at his rural home in Tiriondonin, Baringo District and not in Molo.

Appeal allowed.

Cases Otieno v Ougo & another (No 4) [1987] KLR 407

Statutes

Judicature Act (cap 8) section 3(2)

Advocates

Mr Mweitich for the Appellant.

Mr Chepkonga for the Respondent.

Vishva Builders Ltd v Moi University

High Court, at Eldoret

October 16, 2002

Tunya J

Civil Case No 51 of 1999

Civil Practice and Procedure - summary judgment-application for- once defence filed, court ought to be satisfied on triable issues - need for defendant to demonstrate why he should have leave to defend.

This was an application by the plaintiff pursuant to order XXXV rules 1(1) and (2) of the Civil Procedure Act for summary judgment to be entered against the defendant. The plaintiff grounded his application on grounds inter alia that there was overwhelming documentary evidence that the defendant was indebted to the plaintiffs as expressed in the plaint. The respondent took issue with the amount of interest to be paid on the debts after entering into the contractual agreement with the plaintiff, five years after and three years after filing suit.

Held:

1. Where a plaintiff makes a demand for summary judgment, the defendant must demonstrate to the court that it should have leave to defend the suit.

2. Any dispute over the amount claimed by a contractor once not raised during the contractual period, if brought up for the first time as a defence to a suit, the same may be considered as frivolous.

3. Once a defence has been filed, the court must be satisfied that the defence raises prima facie triable issues and that it is not a mere sham.

Application allowed

Cases

1. Nairobi Golf Hotels (K) Ltd v Lalji Bhimji Sanghani Builders & Contractors Civil Appeal NAI No 5 of 1997

2. Barua, Kea N & Another v Town Construction Company Ltd Civil Application No NAI 325 of 1998 (129/98 UR)

3. Onditi, RA v KCF Ltd High Court Civil Case No 65 of 1993

4. Savings and Loans (K) Ltd v Aggrey Kimaru Maiyo ELD High Court Civil Case No 258 of 1996 Vishva Builders Ltd v Moi University

5. Ata Ul Haq v The City Council of Nairobi [1962] EA 18 6. Gupta v Continental Builders [1978] KLR 83

Texts

 Hailsham Lord et al. (Eds) (1973) Halsbury’s Laws of England London: Butterworths 4th Edn Vol 4 pp 572 – 620

 Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XXXV rules 1(1), (2); 2(1), (2)

Advocates

Mr Gicheru for the Applicant

Mr Kuloba for the Respondent

Kitur & another v Standard Chartered Bank & 2 others (No 2)

High Court, at Nairobi

July 19, 2002

Tunya J

Civil Suit No 62 of 2002

Mortgages and Charges ––redemption – right to redeem charged property – suit for redemption on account of fraudulent exercise of the statutory power of sale – whether suit should be by Originating Summons or plaint – whether statutory notice of sale was served – remedy available to chargor where he is aggrieved by the value of an auction sale.

Injunctions –– interlocutory injunction - application for interlocutory injunction – factors that must be established for the purposes obtaining interlocutory injunctive relief.

Civil Practice and Procedure - affidavit - verifying affidavit – averments in the plaint – false averments in affidavit and plaint – whether a false affidavit amounts to a non affidavit – consequences of swearing in false affidavit.

The applicant sought a temporary injunction restraining the alienation of the subject property pending the determination of the suit.

The applicant argued that he was not served with a statutory notice of sale, that the property was sold by private treaty and not by public auction as advertised, that the applicant was denied an opportunity to redeem the suit property and that the property was sold far below the sale price.

The respondent on the other hand argued that the applicant had filed a false affidavit, had instituted the suit by Originating Summons instead of plaint, had no prima facie case and could adequately be compensated by damages.

Held:

1. Suits on claims of redemption only must be brought by originating summons under order XXXXVI of the Civil Procedure Rules, however where there are other prayers other than the one for redemption the applicants are entitled to come to court by way of plaint.

2. In deciding whether or not the requisite statutory notice, the underlying guideline for the court is whether or not the applicants received the notice.

3. Where the chargor is aggrieved by the value of an auction sale, its remedy lies in damages not in an injunction.

4. It is trite law that to succeed in an application for injunctive relief, the applicant must prove a prima facie case with a probability of success and should the court be in doubt in this requirement, the court may resolve the application on a balance of conveniences. But an interlocutory injunction will not normally issue unless there is irreparable injury which would not be adequately compensated by an award of damages.

5. Once a property is offered as security it by that very fact becomes a commodity for sale and that there is no commodity for sale whose value cannot be computed and determined. It is therefore not open to the applicant to allege that he is likely to suffer irreparable loss or injury, which cannot be compensated by an award of damages.

6. The Registered Land Act (cap 300) section 77(3) and the Auctioneers Act (cap 526) section 26(1) provides that any injury to a chargor by way of irregular exercise of the power of sale by a chargee or auctioneer, shall be compensated by an award of damages.

7. The averments in the plaint and in the verifying affidavit to the effect that there have been no proceedings between the parties were false and in contravention of the rules. A false affidavit is a non-affidavit and thus even on a matter of technicalities, I do strike out the verifying affidavit, the plaint is therefore untenable.

8. The applicant having stated untruths in the affidavit regarding suits between the parties and regarding attempts at redemption, has come to court with untainted hands, it is thus undeserving of an equitable reliefs.

Application struck out.

Cases

1. Kenya Commercial Bank Ltd v Osebe [1982] KLR 296; (1982-88) 1 KAR 48

2. Giella v Cassman Brown [1973] EA 353 3. Kitur, Sambai v Standard Chartered & 2 others Eldoret High Court Civil Case No 50 of 2002

3.Samross Investments Limited & another v KCF Co Ltd Eldoret High Court Civil Case No 95 of 2001

 Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 13(1)(a); order VII rules 1(e), 1(3); order XXXIX rules, 1, 2, 3, 9, 10; order XXXXVI

2. Civil Procedure Act (cap 21) sections 3, 3A, 63(c)

3. Registered Land Act (cap 300) sections 77(1), 77(3)

4. Auctioneers Act (cap 526) section 26(1)

Advocates

Mr Ngigi Mbugua for the Applicants.

Mr Gicheru for the 1st & 2nd Respondents.

Mr Manani for the 3rd Respondents.

Eldoret Municipal Council v Rural Housing Estates Ltd

High Court, at Eldoret

July 11, 2002

Tunya J

Civil Suit No 255 of 2001 (OS)

Arbitration – stay of arbitral award – setting aside an arbitral award – arbitral award challenged on the issue of lack of Jurisdiction and limitation – whether arbitral award can be published when fundamental issues of jurisdiction have been raised – whether the court has powers to injunct an arbitral award – validity of an award made without jurisdiction.

The parties to the suit had entered into an agreement which had a provision that in event of a dispute between them, the same would be referred to arbitration. A dispute arose and the same was referred to arbitration. The arbitrator made a preliminary award and the applicant being aggrieved filed a suit seeking to set aside that award.

Held:

1. The applicant’s application is competently before the court under section 17 of Arbitration Act which is the appropriate provision.

2. Jurisdiction cannot be conferred or waived by consent of the parties.

3. The issue of jurisdiction was fundamental. Once a tribunal lacks jurisdiction, any proceedings held before it must be null and void, therefore the issue of jurisdiction must be determined first before the arbitrator may conduct any proceedings

4. The arbitrator’s jurisdiction derives from the reference lodged. In this instance there was no reference lodged for an award of damages and to proceed to give an award in that regard was without jurisdiction.

5. The proceedings before the arbitrator should be stayed, as the suit pending before the court may be rendered nugatory. The twin issues of jurisdiction and limitation had to be determined first. The award was worth a substantial amount of money and if allowed to stand and executed, should it be true that the arbitral tribunal has no jurisdiction, it may result in substantial loss.

6. The court has powers to stay and to set aside arbitral proceedings and awards. Section 17 (8) provides that the arbitration “may proceed”, given its meaning means that he may be injuncted.

7. The validity of the award was in issue, by reason that it was given without jurisdiction. Its publication was in futile exercise and the balance of convenience dictate that no further proceedings be held and by necessary implication that there be no publication of any award pending the hearing and determination of the suit.

Application allowed.

Cases

1. Nyangau v Nyakwara [1986] KLR 712

2. Kenya Commercial Bank Ltd v JJ Matere Civil Appeal No Kisumu 139 of 2002

Texts

White, TAB (1952) Russell on the Law of Arbitration London: Stevens & Sons Ltd 15th Edn p 40

Statutes

1. Arbitration Act (Act No 4 of 1995) sections 17, 17(2), 17(7), 17(8), 35, 36, 37

2. Arbitration Rules 1997 (Act No 4 of 1995 Sub Leg) rules 2, 11

3. Civil Procedure Act (cap 21) section 7

Advocates

Mr Gicheru for the Plaintiff/ Applicant.

Mr Musangi for the Defendant/ Respondent.

Kitur v Standard Chartered Bank & 2 others

High Court, at Eldoret

June 13, 2002

Tunya J

Civil Case No 50 of 2002

Civil Practice and Procedure - affidavit - verifying affidavits – contents of – averment that there is no suit pending over the same subject matter – meaning of pending suit – affidavit verifying the correctness of the averments contained in the plaint – false verifying affidavit – Civil Procedure Rules Order VII rule 1(1) (e)

Civil Practice and Procedure – institution of suits – type of pleadings – claims for redemption and recoveyance – claims for fraud arising from a claim of recoveyance – whether suit should be by originating summons or plaint.

Injunctions – interlocutory injunction – applicable principles in granting interlocutory injunctive reliefs.

Mortgages and Charges – statutory power of sale – exercise of power of sale – sale by public auction – sale not conducted as advertised or in accordance with the law - allegation of fraud – remedy available to the chargor – right of redemption.

The applicant filed an application under order XXXIX rules 1,2,3 and 9 of the Civil Procedure Rules. The applicant prayed that the defendant respondent be restrained by means of a temporary injunction from alienating the suit property which had been sold by the respondent in exercise of a chargee’s power of sale, pending the hearing and determination of the substantive suit. The application was on the grounds that the applicant had been denied an opportunity to redeem his property, that the property had been sold below the reserve price, and that that the sale was not conducted by public auction as required by law. The applicant also argued that there was fraud in the sale and that the sale by private treaty without leave of the court was irregular. The respondent challenged the application on the grounds that the verifying affidavit was false, that the claim should have been by originating summons, that any claim of impropriety on the part of the auctioneer in respect of the public auction had a remedy of damages and that the applicant had not fulfilled the principles set out in the case of Giella vs Cassman Brown in failing to show that the award of damages would not be adequate compensation for him.

Held:

1. The subject matter in this suit was subject to a previous suit. It was immaterial that in the previous suit, only the 1st defendant and the plaintiff were parties or that there were additional causes of action claimed in the present suit which did not feature in the previous suit.

2. The averment in the applicant’s verifying affidavit that there was no previous suit or proceedings over the same subject matter between the parties (meaning none of the parties ) was clearly false and in contravention of the rules and law.

3. The verifying affidavit being false it had to be struck out and consequently the plaint could not stand on its own without an affidavit and it had to be be struck out as well.

4. Although this was a claim for redemption and reconveyance which should have been commenced by originating summons; this matter had also a claim/allegation of fraud and relief stemming therefrom hence commencement by plaint was proper.

5. In applications for interlocutory injunctive reliefs, the applicant must demonstrate prima facie that it has a case with a probability of success, that unless an order of injunction is granted by the court the applicant may suffer loss or injury which cannot be compensated by an award of damages and in case of doubt the court should resolve the dispute on a balance of convenience. The applicant herein has a prima facie case with a probability of success.

 6. The evidence revealed that there was absolutely no substance in the claim of denial to the applicant to redeem his property.

7. The mere fact that a sale by public auction was below the reserve price is not by itself evidence of fraud or mala fides on the part of the chargee.

8. Where the public auction was not properly conducted either as advertised or the sale did not conform to the law applicable, the only remedy available to the chargor is damages.

 9. The damages will only be payable if fraud is proved. In the absence of fraud being established as in this case an injunction could not issue.

10. When a chargor lets loose its property to a chargee as security for a loan or any other commercial facility on the basis that in the event of a default it be sold by a chargee, the damages are foreseeable. The security is henceforth a commodity for sale or possible sale, with prior concurrence and consent of the chargor. The applicant could not having defaulted to repay loan arrears prompting a chargee to exercise its statutory power of sale, claim that he was likely to suffer loss or injury incapable of compensation by an award of damages.

11. The false averment in the affidavit coupled with the untrue assertion by the applicant that he had always offered to redeem the property were signs of bad faith. He had come for an equitable relief with unclean hands and was undeserving of an equitable relief.

Application dismissed.

 Cases

1. Ochieng, Nyagilo & another v Fanuel Ochieng & another Kisumu Civil Appeal No 148 of 1995

2. Russell Co Ltd v Commercial Bank of Africa Ltd & another [1986] KLR 633

3. Mbuthia v Jimba Credit Corporation [1988] KLR 1

4. Giella v Cassman Brown & Co Ltd [1973] EA 358

5. Otachi, Robert Kibagendi & another v HF Co Kenya Ltd & 3 others Nairobi Civil Appeal No 251 of 1996

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VII rule 1(1)(e); order XXXVI; order XXXIX rules 1, 2, 3, 9

 2. Auctioneers Act (cap 526) section 26 3. Registered Land Act (cap 300) sections 77(3), 74

Advocates

Mr Kimaru for the Applicant.

Amolo & Gachoka Advocates for the 1st & 2nd Respondents.

Mr Manani for the 3rd Respondent.