Ismail Adam Suleman & Gulam Rasul Mardat v Nawaz Transport Company

Court of Appeal, at Mombasa

April 6, 1983

Madan, Law JJA & Hancox Ag JA

Civil Appeal No 38 of 1982

Civil Practice and Procedure - service - proper and valid service - definition of - notice of capacity in which a person is being served - object of - effect of - setting aside service - factors to be considered - service under order XXIX rule 9 and rule 3 of the Civil Procedure Rules - meaning of person within order XXIX rule 9 - service upon business entity where proprietor is deceased - how such service effected - service in suits against deceased persons.

 Precedents - binding and persuasive precedents - application of - foreign authorities - absence of current authorities. Parties - parties to suits - sole proprietorship - suit against sole proprietorship for which proprietor died and administrators were appointed - administrators continuing with business of proprietor - suit arising out of debt incurred by proprietor during his lifetime - suit filed against proprietorship in its business name - whether suit improper for being a suit against a deceased person - whether service of summons on administrators proper - Civil Procedure Rules order XXIX rule 9.

The appellant filed a suit against the respondent, which was described in the plaint as a registered business, in respect of services rendered to the proprietor, who had since died. The summons were served upon two persons along with a notice stating that they were served in their capacity as partners or persons having control or management of the respondent entity. The two persons were administrators of the estate of the deceased, the original proprietor of the business entity. The administrators entered appearance under protest and made an application to set aside the summons and the subsequent decree on the ground that they were not partners in the firm and not liable and therefore could not be served. It was further deponed that the suit was improper as it had been filed against a dead person. The High Court allowed their application and against that decision, the appellant appealed.

Held:

1. The Civil Procedue Rules in order XXIX rule 9 enable a person to be sued in his assumed name. It makes it possible to sue persons who conceal their names in the name of which they carry on business. The object of this rule is to promote commerce, as it would not be possible for persons to know the real names of the owners of the business. If it were to be held that a decree obtained or a suit instituted against an assumed name is void, it would lead to manifest hardship, encourage fraud and sap the credit on which the commercial dealings largely rest. If the administrators’ contention was allowed in this case, it would open a wide door for fraud and injustice.

2. Order XXIX rule 9 of the Kenyan Civil Procedure Rules is taken verbatim from order XXX rule 10 of the Indian Civil Procedure Code. The English rule is similar also except the word “person” has been substituted with “individual”. Indian and English decisions can therefore be applied where there are similar facts. In this case the firm did not cease to exist, the two administrators continued to carry on business. It would be wrong in principle to allow them to claim protection from legal process against the firm by pretending that the firm ceased to exist.

3. As a matter of public policy, the service of process, in this case effected in accordance with the Civil Procedure Rules order XXIX rule 3(1) on a person having, at the time of service, the control or management of the firm, was good and valid service.

4. In legal terms, a person does not only mean a human being but a body corporate whereas the definition of an individual is a single human being. Therefore, a person can mean a group of individuals carrying on business, in this case two persons carrying on business in the name in which a deceased proprietor formerly did.

5. A suit can be brought against a firm of which the deceased was a sole proprietor which is afterwards continued by his successors.

 6. (Obiter Madan JA) “I do not consider myself bound by the English and Indian decisions, good law though they may be. As far as I can ascertain there is no local decision on this point, I feel free to make my own decision.”

7. (Obiter Law JA) “I consider that the question to be decided in this appeal is res integra in that it is governed by no Kenyan decision having effect as precedent and must therefore be decided on principle.”

8. (Obiter Hancox JA) The parties have a responsibility to provide legible documents to the court. Documents that are too faint and illegible will not be included in the court records. Any delay or adjournment caused by the parties’ failure to provide legible documents might result in an order for costs against the party responsible.

 9. (Obiter Law JA) “To my mind the reprehensible course of conduct by the administrators [in perpetrating the misconception that the previous sole proprietor was still alive while they carried on the business] is very close to coming within the doctrine of ‘holding out’ to which statutory expression is given in section 18 of the Partnership Act (cap 29).”

Appeal dismissed.

Cases

1. M’Iver v Burns (1895) 64 LJ Ch 681

2. Rampratab v Gavrishankar [1924] Bombay Law Reports 109

3. Hari Bhandhu Pal v Messrs. Hari Mohan Mohimchandra Kaihashchandra & Hiralal Saha [1930] AIR (Calcutta) 931

4. Hafiz Abdul Razzaq v Rauf Ahamed [1936] AIR 245

 5. Jamunaram Poddar Firm v Jamunaram Bhakat [1944] AIR 31 (Calcutta) 138

6. Davey v Shawcroft [1948] 1 All ER 827

7. Indian Red Lead Factories Co and Purshottamdas Narsingdas [1960] AIR (Calcutta) 32

8. Dawson (Bradford) Ltd v Dove [1971] 1 All ER 554

Texts

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

 2. Burke, J. (1977) Jowitt’s Dictionary of English Law, London: Sweet & Maxwell

3. Jacob, IH. et al, (Eds) (1973) The Supreme Court Practice, London: Sweet & Maxwell, p 1217

 Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXIX rules 3, 4, 6, 7(1), 9

2. Rules of the Supreme Court (UK) order 48A rules 1-10, 11; order 81 rule 9 (formerly order XLVIIA rule 11)

3. Code of Civil Procedure (India) order XXX rules 6, 10

4. Registration of Business Names Act (cap 499) section 9

5. Registration of Business Names Rules (1975) (cap 499 Sub Leg) rule 6

6. Interpretation and General Provisions Act (cap 2) section 3(4)

7. Partnership Act (cap 29) section 18

 8. Interpretation Act 1889 (UK) section 19

Advocates

 AT Anjarwalla & NM Doshi for Appellant

IT Inamdar for Respondents

Trikam Maganlal Gohil and Velji Damji Nandha v John Waweru Wamai

 Court of Appeal, at Nairobi

March 31, 1983

Law, Kneller JJA & Chesoni Ag JA

Civil Appeal No 42 of 1982

 Civil Practice and Procedure - summary judgment - application for - dismissal of - factors to be considered in such application - Civil Procedure Rules order XXXV - burden of the applicant and respondent - proof required - contents of affidavit and evidence.

 Costs - order for - in an application for summary judgment - when it should be awarded.

Landlord and tenant - lease - leases under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) - definition of a shop under the Act - protected tenancy - shops falling within the Act.

The High Court dismissed the appellants application for summary judgment with costs and gave the respondent unconditional leave to defend on the grounds that there were triable issues and that there were no agreed facts and therefore it was inappropriate for the issues to be decided on the pleadings. The appellant appealed against the dismissal. The question before the appeal court was whether the judge should or should not have dismissed the appellant’s application for summary judgment under order XXXV rule 1 of the Civil Procedure Rules with costs.

Held:

1. The Civil Procedure Rules order XXXV rule 2(1) requires the defendant to show either by affidavit or by oral evidence that he should have leave to defend. The burden is on the defendant to satisfy the court that he is entitled to leave to defend the suit. Leave to defend will not be granted if he merely states that he has a good defence on merit; he must go further and show that the defence is genuine or arguable or raises triable issues.

2. An application for summary judgment may be dismissed if the defendant shows that the application does not fall within order XXXV of the Civil Procedure Rules and/or if the defendant establishes (as per rule 2(1) of order XXXV) that the plaintiff knew that he relied on a contention which would entitle him to unconditional leave to defend; if the defendant establishes that he is entitled to leave to defend as required under rule 2(1), he should be granted conditional or unconditional leave to defend the suit.

3. The application was one that could be brought under order XXXV and therefore should not have been dismissed.

4. In order to decide whether or not there is an arguable defence, the court must look at the whole of the respondent’s replying affidavit and defence. In this instance’ the affidavit disclosed no triable issues and the defence was a repetition of it.

5. If triable issues are found to exist and the application for summary judgment is refused and leave to defend granted, it is inappropriate to order costs of the application. In a case such as this where leave to defend is granted, the desirable order to make is for costs to be in the cause or reserve the same for later.

6. A shop means a premises occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or moneys worth. The “shop” in this case did not fall within this.

7. According to the law relating to estoppel, no estoppel can arise from representations of law. The appellants in this case were not estopped from alleging that the suit premises were not controlled premises by reason of the representation, express or implied, made by them or their agent in a rent book or books, to the effect that they were controlled premises on which representation the respondent acted to his detriment by not thereafter seeking other premises to occupy because such a statement in a rent book, if it amounted to a representation, constituted a representation of law and not of fact.

 Appeal allowed.

Cases

1. Deeble v Robinson [1954] 1 QB 77 at 87 (CA)

2. Ritz Cleaners v West Middlesex Assessment Committee [1971] 2 KB 642 at 671

3. Charan Kaur v Mistry Mahanji Vanmali (2) (1956) 23 EACA 14, 15

4. Hirani v Ramji Mepa & Sons [1971] EA 332 (K)

5. Balbir v Panesar [1972] EA 94 (K)

6. Panesar v Balbir [1972] EA 208

7. London County Territorial and Auxillary Forces Association v Nicholas and Another [1948] 2 All ER 432, 435 (CA)

8. Kai Nam (a firm) v Ma Kam Chan [1956] 1 All ER 783, 784 (PC)

9. Zola and Another v Ralli Brothers Ltd and Another [1969] EA 691

10. Kirat Singh & Co v Punja Meghji (1952) 19 EACA 33

11. Mugambi v Gatururu [1967] EA 196 at 197

Statutes

1. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) section 4(2)

2. Local Government (Adoptive By-laws) Building Order 1968 (cap 242 Sub Leg)

3. Rent Restriction Act (cap 296)

4. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rules 1, 2, 8, 8(2)

Advocates

DN Khanna for Appellants

Tayab v Kinanu

Court of Appeal, at Nairobi

March 30, 1983

Law, Potter & Hancox JJA

Civil Appeal No 29 of 1982

Negligence - contributory negligence - elements of contributory negligence by a minor - whether a minor is capable of contributory negligence - assessment of contributory negligence - apportionment of blame - principles applicable.

Appeal - powers of the appellate court - on findings of fact of trial court - extent to which the appellate court can interfere with findings of fact of trial court.

Damages - quantum of damages - award of - assessment of - factors to be taken into consideration - award of general damages for pain, suffering and loss of amenities.

The respondent was a girl of nine years of age who sued the appellant for damages as a result of being struck by a motor car driven by the appellant. The respondent had suffered a skull fracture and bruises on her head and hip. She had recovered from all her injuries, save that she developed epilepsy some months later. Her examining doctor, however, gave evidence that the epileptic fits could be controlled with medication. The evidence showed that the accident had occurred along a stretch of road used by children from various schools adjoining it and the appellant was a frequent user of the road. The respondent’s evidence had been that she had looked right, then left and then right again and started crossing the road at a walk and she had not seen the appellant’s car until it knocked her down. The appellant, on the other hand, stated that she had not seen the respondent before she was hit and that she had appeared to be in a hurry. Police evidence showed that there were 14 feet long brake marks made by the appellant’s car five feet from the appellant’s near side of the road. The trial judge, who had found the young respondent to have the requisite road sense, also found her to be entirely blameless as there was no evidence on which her contributory negligence could be based and awarded her Kshs 750,000 for pain and suffering and loss of amenities. The appellant appealed to the Court of Appeal.

Held:

1. The appellate court will not interfere with a judge’s findings of fact based on his assessment of the credibility and demeanour of witnesses who gave evidence before him, unless it was wrong in principle.

2. The decision as to whether or not a child can be guilty of contributory negligence depends on the circumstances and the particular child. A child cannot be expected to have the road sense of adults but her guilt ought to be assessed according to her knowledge and ability on road precautions (Gough v Thorne (1966) WLR 1387).

3. In making a decision on contributory negligence on the part of a young child the court should take into account the child’s ability to understand and appreciate the dangers involved on the road. The respondent in this case was a young child but the evidence at trial revealed that she had the requisite road sense and was capable of being contributorily negligent. However, taking into account her age, her degree of liability ought to be less than that of an adult, in this instance 10%.

4. In awarding damages, the court should be guided not only by the existence of a disability resulting from the accident, but the type of disability. In this case, the award ought to give regard to the epileptic condition arising from the accident, but also take into account the fact that the epilepsy was the controllable type.

5. The awards of damages by foreign courts must be viewed with caution having regard to comparative standards of living, levels of earning and many other factors (Kimothia v Bhamra Tyre Retreaders [1971] EA 81).

6. The onus of establishing contributory negligence lies on the defendant.

7. (Obiter Hancox JA) It is a rule of general application that the sum that is awarded must be in proportion to awards in other cases of those who have suffered injuries of comparable severity. But if sums get too large which can only in the end have deleterious effect on the very group of persons that the court is trying to protect (Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332 at 339).

8. (Obiter Potter JA) Recommend to trial judges the following passages:

 a) “But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.” West (H) & Son Ltd v Shephard [1964] AC 326 at 345.

b) “In considering damages in personal injury cases, it is often said: ‘The defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration.’ That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay.

c) ‘Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life ... You are not to consider the value of existence as if you were bargaining with an annuity office ... I advise you to take a reasonable view of the case and give what you consider fair compensation’.” (Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332 at 339).

d) “I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a national health service. But the health authorities cannot stand huge sums without impeding their service to the community. The funds available come out of the pockets of the tax payers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.” (Lim Poh Choo v Camden and Islington Area Health Authority (ibid)).

9. In awarding damages, the court ought to assess the general picture, the whole circumstances, the effect of the injuries, the particular person concerned and uniformity. The court must also be guided by recent awards in comparable cases in the local courts. In this case the High Court award was wrong in principle when measured against awards in other cases. (Bhogal v Burbidge [1975] EA 285).

 10. For pain, suffering and loss of amenities on account of a linear fracture of the right parietal bone of the skull, bruises on the face, head and hip, for which the respondent was hospitalised for a month, and for posttraumatic epilepsy brought on by a brain injury, the respondent was entitled to general damages in the amount of Kshs 300,000 (per Hancox JA (dissenting): “... I think this sum should be Kshs 400,000”) subject to a reduction proportionate to the respondent’s contributory negligence.

Cases

1. Butt v Khan [1981] KLR 349

2. Attorney General v Vinod [1971] EA 147

3. Gough v Thorne [1966] WLR 1387; [1966] 3 All ER 398

 4. Dick v Koinange (No 1) [1973] EA 165

5. Jones v Griffith [1969] 2 All ER 1015

6. Muiruri v Emmy Annah HCCC No 2938 of 1975 (unreported)

7. Kimothia v Bhamra Tyre Retreaders [1971] EA 81

 8. West (H) & Son Ltd v Shephard [1964] AC 326 at 345

9. Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332 at 339

10. Davies v Journeaux [1976] RTR 111

11. Mwadime v Yamani [1975] EA 246

12. Jones v Lawrence [1969] 3 All ER 267

13. Kite (an infant) v Nolan (1982) 126 SJ 821

14. Fleming v Kerry CC (1955-6) IR 72

15. Lynch v Nurdin (1841) 1 QB 30

16. Bhogal v Burbidge [1975] EA 285

17. Joyce v Yeomans [1981] 2 All ER 21

18. Young v Redmond & Peake [1980] CLY 659

19. Moore v Poyner [1975] RTR 127

20. Burke v Woolley [1980] Kemp & Kemp Case 15-056 and 19-007

Texts

1. Bingham, L. (1960) Motor Claims Cases, London:Butterworths, 6th Edn p 86

2. Kemp, D.A. (1982) Kemp & Kemp: The Quantum of Damages in Personal Injury and Fatal Accidents Claims, London: Sweet & Maxwell, 4th Edn pp 3311, 3459

3. Heuston, R.F. (1969) Salmond on the Law of Torts, London: Sweet & Maxwell, 15th Edn pp 522, 702

4. Armitage, A. Dias, R.W (Eds) (1975) Clerk & Lindsell on Torts, London: Sweet & Maxwell, 14th Edn. para 999

5. Heuston, R.F. (1977) Salmond on the Law of Torts, London: Sweet & Maxwell, 17th Edn p 522

Statutes

No statute referred to.

Advocates

TC Noad for Appellant

AI Hayanga for Respondent

Ngui v Republic

Court of Appeal, at Nairobi March 30, 1983

Law, Miller & Potter JJA

Criminal Appeal No 135 of 1981

(Appeal from the High Court at Nairobi, Masime J)

Sentencing - corporal punishment - order of - whether corporal punishment can be ordered to be concurrent or consecutive.

Appeal - first appellate court - duties of - assessment of findings of lower court.

Evidence - evaluation of - consideration of - by first appellate court.

The appellant was charged with burglary and stealing and was convicted on both counts. The appellants appeal to the High Court was dismissed hence this appeal on the grounds that the judgment on the first appeal was not satisfactory.

Held:

1. Sentences of corporal punishment cannot be ordered to be concurrent.

2. The first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions in order to satisfy itself that there was no failure of justice, it is not sufficient for it to merely scrutinize the evidence to see if there was some evidence to support the trial courts’ findings and conclusions.

Appeal allowed; conviction quashed.

Cases

1. Okeno v R [1972] EA 32

2. Pandya v R [1957] EA 336

Statutes

Penal Code (cap 63) sections 279(b), 304(2)

Makube v Nyamuro

Court of Appeal, at Kisumu

March 29, 1983

Law JA, Kneller & Hancox Ag JJA

 Civil Appeal No 8 of 1983

Evidence - of a witness of tender years - evidence of person aged sixteen years - meaning of tender years - whether evidence of such person requires corroboration.

Damages - quantum of - assessment of damages - personal injury-pain and suffering - loss of sight in right eye - principles applicable - relevant authorities - factors taken into consideration.

Appeal - Court of Appeal - powers of - finding of fact - when appellate court can interfere with findings of fact - guiding principles. Tort - trespass to the person - assault - battery - definition of - distinction of - proof of - onus - intentional and unintentional assault - pleading of.

The appellant, an infant, sued through his father as next friend for damages for the loss of his right eye after it was hit by a rope that the respondent, his teacher, was using to whip him. The appellant, who was aged fourteen years, and two other pupils, gave evidence that he had suffered the injury as a result of the deliberate act of the respondent. The respondent denied assaulting the appellant and stated that the injury had arisen out of accident. The trial judge rejected the appellant’s evidence and dismissed his claim on the basis that it had not been satisfied that the respondent’s act had been deliberate to the extent of holding him liable in a civil suit. The appellant appealed, submitting, inter alia, that it had been a misdirection for the trial judge to refer to the appellant and the other two pupil witnesses as children of tender years whose evidence required corroboration.

Held:

1. A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.

2. The onus of proof of intention or negligence on the part of the defendant lies on the plaintiff. Under the rules of pleadings, the particulars of the alleged negligence must be pleaded and without particulars the claim is mere statements, disclosing no cause of action. However in some cases such as this one involving an intentional assault, the omission to plead a negligent trespass to a person is not material. The onus of proving wilful assault and battery was fully discharged against the respondent’s allegation of an accident.

 3. Ttrespass may be intentional or unintentional. If it is unintentional it may yet be negligent (as distinct from the tort of negligence) or it may be pure accident or misadventure. If the latter, there is no liability (Fowler v Lanning [1959] 1 All ER 290).

4. While ‘assault’ is frequently the generic term used to cover both assault and battery, the two are distinct torts; assault being an overt act indicating an immediate intention to commit a battery and a battery being the direct application of force to the person of another without lawful justification and both constitute a species of trespass known trespass to the person.

5. Upon the evidence, it was clear that the appellant had been injured out of an assault and battery ensuing from an intentional act of the respondent.

 6. The evidence of the witnesses aged sixteen years was not evidence of children of tender years but of young persons which did not require corroboration.

7. While the evidence of children of tender years would require corroboration as a matter of law in criminal cases, this was neither a criminal case, nor were the children of tender years.

8. (Obiter Hancox JA) Where the cause is one of a tort which is also a crime (in this case assault) and there is an express mention of criminal responsibility in the pleadings, it is not entirely improper for the court to treat it in the same way as a criminal prosecution.

9. (Obiter Hancox JA) If the evidence of a child of tender years is admitted by the court under section 19 of the Oaths and Statutory Declarations Act (cap 15) because he does not understand the nature of the oath, then that evidence would require corroboration as a matter of law by virtue of section 124 of the Evidence Act (cap 80). In the absence of special circumstances a child of the age or apparent age of under fourteen years should be treated within this section (Kibangeny Arap Kolil v R [1959] EA 92 at p 94).

10. (Obiter Hancox JA) There was no basis for the judge’s finding that the boys were of tender years at the time of giving evidence. Even if the judge thought so, on voir dire the procedure would have been to carry out an inquiry before receiving the evidence.

 11. (Obiter Hancox JA) If witnesses are found to be of tender years, it is prudent to look for corroboration (Erukana Kyakukagira v AG of Uganda [1959] EA at page 155).

Cases

1. Kibangeny Arap Kolil v R [1959] EA 92 at 94

2. Erukana Kyakulagira v AG of Uganda [1959] EA 152 at 155

3. Weaver v Ward 80 ER (KB) 284

4. National Coal Board v Evans (JE) & Co (Cardiff) Ltd [1951] 2 All ER 310 at 317

5. Davies v Saunders 1770 2 CHIT 639

 6. Fowler v Lanning [1959] 1 All ER 290

7. Patel v AG HCCC 602 OF 1960 (Uganda) (unreported)

8. Lukiya Nasejje v HH The Kabaka’s Government HCCS 6 OF 1960 (Uganda) (unreported)

9. Akongo Ayo v AG HCCS 6 of 1967(unreported)

10. Janet Asamo v Soroti Town Council HCCC 469 of 1970 (Uganda)

11. Safina Bogga v AG HCCS 519 of 1970 (Uganda) (unreported)

12. Visensiyo Kyohbera v West Mengo District Association HCCC 697 of 1970 (unreported)

13. Kimothia v Bhamra Tyre Retreaders [1971] EA 81

14. Lubia and Lubia v Kemfro Africa Limited and Gathogo Kamini Nairobi HCCS 2382 of 1979 (unreported)

Texts

1. Armitage, A. Dias, RWM. (Eds) (1975) Clerk & Lindsell on Torts London: Sweet & Maxwell Ltd, 14th Edn para 679

2. Heuston, RF. (1977) Salmond on the Law of Torts, London: Sweet & Maxwell Ltd,17th Edn p 121

3. Wilkinson, M. (1973) Quantum of Damages for Personal Injuries, 3rd Edn pp 49-541.

 Statutes

1. Oaths and Statutory Declarations Act (cap 15) section 19

2. Evidence Act (cap 80) section 124

Advocates

Mr Osoro for Appellant

Mr Bwokora for Respondent

Ministry of Defence of the Government of the United Kingdom v Ndegwa

Court of Appeal, at Nairobi

March 18, 1983

Law, Hancox JJA & Chesoni Ag JA

Civil Appeal No 31 of 1982

Diplomatic immunity - immunity from legal process - immunity as a foreign sovereign or government - definition of foreign sovereign - circumstances under which a foreign sovereign or government may be impleaded - liability of foreign sovereign - legal persons - department of a ministry of a foreign government - whether its acts are a subject of state immunity - whether a department is a separate legal entity from the government.

Vicarious liability -of foreign sovereign - liability of foreign government - for wrong of servant - liability only capable of arising in course of employment - when one is acting in course of employment of a governmental purpose invoking immunity.

The respondent filed suit jointly and severally against the appellant and another person who was a member of the British Army, for damages for negligence arising out of a motor accident. The appellant entered appearance under protest and filed an application seeking for an order to strike out the proceedings against it on the ground that the Government of the United Kingdom of Great Britain and Northern Ireland as a foreign sovereign state had not consented to be sued in the Kenyan court and was entitled to immunity. It was deponed for the appellant that it being a ministry, it had no legal entity separate from its government. After the application was dismissed, the appellant appealed to the Court of Appeal.

Held:

1. It is a matter of international law that our courts will not entertain an action against certain privileged persons and institutions unless the privilege is waived. Such persons and institutions include foreign sovereigns or heads of state and government, foreign diplomats and their staff, consular officers and representatives of international organisations such as the United Nations Organisation (UNO) and Organisation of African Unity (OAU). It is not all acts of a foreign sovereign or government that this principle applies to; the immunity is not absolute but restrictive and the test is whether the foreign sovereign or government is acting in a governmental capacity under which it can claim immunity, or a private capacity, under which an action may be brought against it.

2. The appellant had neither waived its immunity nor consented to submit to the jurisdiction of the courts of Kenya.

3. There was evidence that the appellant, the Ministry of Defence Claims Commission (UK), was a section or department of the Ministry of Defence of the UK which in turn was a department of the government of the United Kingdom of Great Britain and Northern Ireland and as such, the appellant had no legal entity separate from that government, therefore had diplomatic immunity.

4. The appellant would be vicariously liable only if the first defendant was acting in the course of his employment and in the circumstances of the case, that would involve the appellant acting in a governmental capacity which entitled it to sovereign immunity.

5. (Obiter Chesoni Ag JA quoting Lord Denning MR in Thai-Europe v Government of Pakistan [1975] 3 All ER 961; 1 WLR 1485): “The general principle is undoubtedly that except by consent, the courts of this country will not issue their process so as to entertain a claim against a foreign sovereign for debt or damages. The reason is that, if the courts here once entertained the claim, and in consequence gave judgment against the foreign sovereign, they could be called to enforce it by execution against its property here. Such execution might imperil our relations with that country and lead to repercussions impossible to foresee.”

Appeal allowed

Cases

1. Thai-Europe v Government of Pakistan [1975] 3 All ER 961; 1 WLR 1485

2. Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529

3. I Congreso del Partido [1978] 1 All ER 1169

4. C Czarnikow Ltd v Centrala Handlu Zagranicznego ‘Rolimpex’ [1978] 1 All ER 81

5. Planmount Ltd v Republic of Zaire [1981] 1 All ER 1110

 6. Mighell v Sultan of Johore [1894] 1 QB 149

7. The Cristina [1938] 1 All ER 719 at 721

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13

2. Rules of the Supreme Court (UK) order 2

Advocates

KA Fraser for Appellant

HPG Waweru for Respondent

Masinde Muliro v Dickson Ochieng’

Court of Appeal, at Nairobi March 7, 1983

Law, Potter JJA & Kneller Ag JA

Civil Application No NAI 8 of 1983

(In an intended appeal from an order of the High Court at Nairobi,

Aganyanya J)

Civil Practice and Procedure - applications - citing enabling statutes - when an application is brought under the wrong provision of the law - whether the court should dismiss or strike out such an application – Civil Procedure Rules.

Civil Practice and Procedure – execution – setting aside of sale by public auction–– how application for setting aside sale should be brought – whether proper for judge to dismiss application where it is brought under wrong provision of law – whether striking out the proper order to make – Civil Procedure Rules order XXI rule 79.

Execution – attachment and sale by public auction - order of Registrar confirming sale – effect of such order – whether judgment debtor may set aside order - application to set aside sale under the Civil Procedure Rules order XXI rule 79 – whether such application limited to grounds of fraud.

Appeal – application for leave to appeal – where such leave has been refused by High Court - form of such application – failure to include a copy of the High Court order – effect of such failure – Court of Appeal Rules rule 43(3).

The applicant brought a chambers application under section 3A of the Civil Procedure Act (cap 21) asking the court to set aside the sale of his land by the respondent which had been done in execution of a decree.

The judge found that order XXI rule 79 was the proper head under which to bring the application and he dismissed it. The applicant attempted a fresh application but it was also dismissed on the grounds that it was res judicata or the judge was functus officio. The applicant was denied leave to appeal and the Registrar of the High Court subsequently issued a certificate confirming the sale and declaring the purchaser.

On the applicant’s application to the Court of Appeal for leave to appeal, the respondent took a preliminary objection that the application contravened rule 43(3) of the Court of Appeal Rules as it did not include a copy of the order of the High Court refusing leave to appeal.

Held:

1. An application to set aside a sale under the Civil Procedure Rules order XXI rule 79 is not restricted to a claim that the sale was affected by fraud. Such an application can be made where there is alleged to have been a material irregularity or fraud in publishing or conducting the sale.

2. Under order VI rule 12, no technical objection may be raised to any pleading for want of form. The judge should have allowed the amendment of the application so as to bring it under order XXI rule 79 either on his own motion or at the instance of the applicant and proceeded to hear evidence in order to determine whether the sale was irregular.

3. Instead of dismissing the application, the judge should have struck it out and advised the applicant’s advocate that he had leave to bring the application back in the proper form.

4. The failure by the applicant to extract and obtain an approval of the order of the judge refusing the application for leave to appeal offended against rule 43(3) of the Court of Appeal Rules.

5. When the Registrar made the order confirming the sale, it became absolute under the Civil Procedure Rules order XXI rule 81(1) so that the applicant’s interest in the land came to an end. No suit or any civil proceedings to set aside that order could be brought by the applicant.

6. It would therefore be futile to give the applicant leave to appeal from the refusal of the judge to allow him to file an application for setting aside the sale under order XXI rule 79.

Application dismissed.

Cases

1. Murji, Ahmed Assain v Shirinbhai Jadvji [1963] EA 217

2. Ryan Investments Ltd & another v The United States of America [1970] EA 675

3. Saldanha and others v Bhailal & Co and others [1968] EA 28

3. Hassam Karim & Co Ltd v Africa Import and Export Central Corporation Ltd [1960] EA 396

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 43(3)

2. Civil Procedure Act (cap 21) section 2, 3A, 34, 97

3. Civil Procedure Rules (cap 21 Sub Leg) orders VI rule 12; XXI rules 65, 73, 74, 78, 79, 80, 81(1), 81(3), 91; XLVIII rule 1 4. Civil Procedure Code [India] section 151

Advocates

Mr Akhaabi for the Applicant

Mr Raiji for the Respondent