Francis Mbugua Maagu v Gaspar Waweru

High Court, at Nairobi

November 29, 1982

Chesoni J

Civil Suit No 3534 of 1982

Customary law - Kikuyu customs - burial dispute - death of husband during marriage-no remarriage by widow after husband’s death - no return of dowry to deceased husband’s parents - whether marriage dissolved by death - effect of christian marriage among Africans - whether relationships of affinity survive husband’s death - whether relationship of affinity severed - whether deceased husband’s family entitled to bury deceased wife - African Christian Marriage and Divorce Act (Cap 151).

Marriage - dissolution - whether African Christian marriages are dissolved by death - effect of Christian marriage among Africans - Kikuyu customary law - relationships of affinity - how relationships of affinity are created and severed - African Christian Marriage and Divorce Act (Cap 151).

Burial dispute - Kikuyu Customary Law and African Christian Marriage Act, Cap 151 - which law applies.

The plaintiff was the father of one Zakaria Kamau, who had been married to one Ellen Wambui, a daughter of the defendant, on August 5, 1968 under the African Christian Marriage and Divorce Act (Cap 151). Zakaria died in 1970 during the subsistence of their marriage. Ellen never remarried until her death in 1982, though she bore four sons after her late husband’s death, only one of whom had been fathered by him. A dispute arose between Ellen’s parents and her late husband’s parents as to who was entitled to inter her remains. Some dowry, the amount of which was disputed, had been paid to Ellen’s parents by the parents of her late husband and had not been returned to them. After her husband’s death, Ellen had been trained by her father, the defendant, and lived independently in Mombasa after being employed by the government. She used both the title of “Miss” and her father’s name but also maintained close contact with her late husband’s family. It was contended for the defendant that the death of Ellen’s husband dissolved her marriage in accordance with the Christian marriage vow which stated, inter alia, “until death do us part”.

 It was further argued that Ellen reverted to the status of a single woman upon her husband’s death and she belonged once more to her natural father’s family. It was submitted for the plaintiff that what death parts in marriage is only the physical cohabitation and that death does not automatically dissolve a marriage between two spouses of the Kikuyu ethnic group.

Held:

1. Among Africans, marriage has certain lasting effects which go beyond the effect of a marriage certificate issued under law. Death terminates a marriage for it brings about the physical separation of the spouses but, on the other hand, there are other relationships which are created by marriage and which death does not automatically determine.
2. Some of these relationships of affinity are severed not only by word of mouth but by certain ceremonies like the re-marriage of the widow or her return to her parents accompanied with a return of the dowry to her husband’s parents.
3. The burial of a deceased female person is a matter of the social custom of her people and does not depend on the law under which she was married.
4. When a Kikuyu woman dies and her marriage was never terminated by divorce, or, if her husband predeceased her during their marriage and she did not remarry, or if the affinity relationship was not terminated by return of the dowry (ruracio), she is buried at her husband’s home by his kin.
5. Whether the relationship is severed or not is a question of fact determined with evidence.

Judgment for the plaintiff.

 Cases

1. Mwangi Njoroge Mugwe v James Mwangi Kihara, HC Misc CC No 255 of 1982 (unreported) Applied

 Texts

1. The Holy Bible, Gen 2:24, (Revised Standard Version)
2. J Kenyatta, Facing Mount Kenya: The Tribal Life of the Gikuyu, Mercury Books: London (1961)

Statutes

African Christian Marriage and Divorce Act (Cap 151)

Advocates

Mr Gatuguta for Plaintiff

Mrs Khaminwa for First Defendant

Katuva Munyao v Edward Jacob

 High Court, at Nairobi

October 25, 1982

Chesoni J

Criminal Revision Case No 42 of 1982

Costs - costs in a criminal case - award of - whether taxable-failure to specify sum awarded in judgment - effect of - Penal Code (Cap 63) Section 32 - Criminal Procedure Code (Cap 75) Sections 171(1); 174(1); 364(1).

Katuva Munyao successfully conducted a private prosecution against Edward Jacob for the offences of trespass to private land and the impairment of demarcated boundaries. After the court had read the judgment, an application was made for the complainant to be awarded his costs and the court gave an order stating “costs of this case to the complainant.” The costs were later purported to be taxed by the consent of the parties at Kshs 4,137. The case came to the attention of the revision court through a civil appeal by an objector.

Held:

1. Both the Penal Code (Cap 63) and the Criminal Procedure Code (Cap 75) empowered the subordinate courts and the High Court to award costs to a public or private prosecutor or to the accused in a criminal case.

2. There was no provision for taxation of costs awarded in a criminal matter under the Criminal Procedure Code (Cap 75).

3. The court in a criminal case must not only award a sum that to it seems reasonable but it is mandatory by statute to specify the sum awarded on the conviction or order. However, the costs awarded should not be beyond the jurisdiction of the court and the award of such costs will be null and void.

Order awarding costs set aside.

 Cases

No case referred to.

Statutes

1. Trespass Act (Cap 294) Section 3(1)

2. Land Adjudication Act (Cap 284) Section 33(d)

3. Penal Code (Cap 63) Section 32

4. Criminal Procedure Code (Cap 75) Section 171(1); 174(1); 364(1)

Polycarp I Ochola v Homa Lime Company Ltd

High Court, at Nairobi

September 28, 1982

Chesoni J

Civil Case No 1268 of 1981

Contract law - contract of employment - breach of contract - offer and acceptance - plaintiff referred by defendant to recruiting firm for job interview - firm’s letter to plaintiff stating terms and asking whether he would be interested - plaintiff’s letter accepting the terms - firm’s letter later stating that plaintiff unsuitable - whether contract created between plaintiff and defendant - whether plaintiff’s acceptance conditional - whether contract complete - whether date of commencement a material term - whether plaintiff induced to resign by defendant-general damages for breach of contract - quantum of damages.

Agency - power of an agent to enter into contract with a third party.

Following an advertisement for the post of accountant with the defendant company for which the plaintiff was one of the applicants, the defendants wrote to him on December 18, 1979, referring him to a firm of accountants and auditors for an interview. The firm, to which this letter had been copied, wrote to the plaintiff to make arrangements for the interview and to inquire as to his salary at the time. After the interview was conducted, the firm further wrote to the plaintiff on April 15, 1980, asking him if he would be interested in an appointment upon the terms stated in that letter. The plaintiff replied to the firm on April 26, 1980, accepting what he termed as “the offer” and stating a period of time in which his visit to the headquarters of the defendant company in Koru could be arranged. This was followed by a letter from the firm to the plaintiff and copied to the defendant stating that the firm was prepared to offer him an appointment on terms which where stated in the letter. The letter further stated the firm’s understanding that the plaintiff had tentatively agreed to accept the terms and conditions but that he first wished to visit the defendant company at Koru. The letter was also copied to the defendant company.

After the plaintiff had resigned his post with his previous employer, the firm wrote to him informing him that he would not be taken for the post of accountant stating, among other reasons, that he had been late for his appointment and that he had not been impressive at his interview. T

he plaintiff filed suit against the defendant claiming general damages for breach of contract. In its defence, the defendant stated that there had been no offer of employment from it or any acceptance by the plaintiff and submitted that though it had commissioned the firm of auditors to recruit an accountant, the final decision to or not to employ lay with the defendant’s management, that the alleged contract was incomplete for omitting the commencement date which was a material term and that if there had been any binding contract of employment, the same had been lawfully terminated by the defendant.

 Held:

1. The firm of auditors had been entrusted with not only the interviewing and shortlisting but also with the final selection of the successful candidate as agents for the defendant.
2. The firm’s letter of April 15, 1980, was an offer of the post of accountant to the plaintiff made on clear terms by an authorized agent of the defendant.
3. The plaintiff’s letter of April 25, 1980, was an unqualified and unconditional acceptance of the offer on the terms stated by the offeror.
4. The plaintiff’s visit to Koru was neither a term of the offer nor a condition of the acceptance.
5. The words purporting to make his acceptance tentative could not be attributed to the plaintiff and they were therefore meaningless; but that did not vitiate the contract as they were severable and would be ignored.
6. The date of commencement of the contract, regarding which the documents tendered in evidence were silent, was not a term of the contract and therefore did not affect its validity.
7. The alleged unsuitability of the plaintiff for the job was an afterthought intended to breach the contract.
8. The defendant had induced or encouraged the plaintiff to resign his job as he had acted in reliance on the agreement between them.
9. There was a binding contract between the parties for the defendant to employ the plaintiff and the defendant had breached that contract.
10. The auditors were the defendant’s agents with full powers to interview and engage on behalf of the defendant and they entered into a binding contract of employment with the plaintiff.
11. The plaintiff relied on the agreement between the parties in resigning his earlier job and he suffered damage. He was entitled to Kshs 5,500 per month which the defendant would have paid him from when he resigned the job to when he secured alternative employment.

Judgment for the plaintiff.

ases

1. Esso Petroleum Co Ltd v Customs & Excise Commissioner [1976] 1 WLR 1 Approved
2. May & Butcher Ltd v R [1934] 2 KB 17 Distinguished
3. Nicolene Ltd v Simmonds [1953] 1 QB 543 Approved

Texts

1. Hailsham, Lord, et al, (Ed), Halsbury’s Laws of England, Butterworths & Co: London, 4th Edn (1975) Vol IX paras 227, 245
2. WR Anson, Principles of the English Law on Contract and of Agency in its Relation to Contract, Clarendon Press: Oxford, 25th Edn (1975) pp 26, 34, 62
3. AG Guest, et al, (Ed), Chitty on Contracts, Sweet & Maxwell: London, 24th Edn (1977) paras 106, 117

Statutes

No statute referred to.

Advocates

Mr Oraro for Plaintiff

Mr Meenye for Defendant

Rose Onyango Ongecha & 10 others v City Council of Nairobi

 High Court, at Nairobi

August 26, 1982

 Chesoni J

Cause No 1863 of 1982

Contract Law - breach of contract - when total or partial failure to perform constitutes breach - frustration of a contract by breach - alteration of terms and conditions of a contract.

Specific performance - application for order for - when applicable - grounds for granting order - alternative remedy in damages.

Damages - breach of contract - special and general damages - special damages must be proved - damages for inconvenience - whether damages for inconvenience should be general or special.

In August 1979, the defendant sent to each one of the ten plaintiffs a letter offering a specific rental flat in an estate which was under construction and requiring each plaintiff to pay a certain deposit within seven days as an indication of willingness to take the offer. Each plaintiff paid the required deposit in time. When the construction of the flats was completed, the defendant instead offered the flats to third parties who took occupation of them, save for the flats initially offered to the second and eighth plaintiffs. The plaintiffs sued the defendant for specific performance requiring the defendant to give vacant possession of the flats, special damages and general damages for the inconvenience caused by the breach of contract and, in the alternative, for damages for breach of contract.

The defendant, while agreeing that there was initially a contract between itself and the plaintiffs, argued that each contract was frustrated in February 1982, when the tenancy deposit was increased by the defendant. Evidence was given, however, to show that the increase of the deposit had not been communicated to the plaintiffs. The plaintiffs’ counsel submitted that there had been no alteration of the contracts, as the increase in the deposit was never communicated, the contract relationship was not affected and that the alteration did not frustrate the contracts to let the flats to the plaintiffs. It was argued for the defendant that specific performance would not be a proper remedy as eight of the flats had been occupied by third parties for value and without knowledge of the contracts with the plaintiffs.

Held:

1. Since the plaintiffs had no notice of the increase in the deposit and they had rejected it, the contract was not frustrated by the increase.
2. Failure of performance, whether total or partial, may constitute a breach if it goes to the root of the contract and the defendant’s failure of performance in this case was total and it went to the root of the contract and amounted to a breach.
3. The plaintiff, who in her evidence asserted the value of her damaged property without calling the assessor of the property’s value as a witness, failed to prove her claim for special damages as did one who, having asserted the value, called a valuer who did not give evidence in verification of what she said.
4. A plaintiff who prays for special damages for property not belonging to her has no valid claim.
5. A claim for damages for inconvenience cannot be general but must be specifically pleaded with exact calculations.
6. Specific performance is an equitable remedy and the court has a discretion whether to grant it and it will not be ordered if the agreement is uncertain in any material respect or if it involves hardship. In this case, specific performance would not be granted since it would involve hardship as it would entail ejection of tenants in possession of the eight flats originally promised to the plaintiffs.
7. Specific performance cannot be granted in the absence of a valid legal contract.
8. In absence of specific performance, the plaintiffs were entitled to damages as an alternative remedy.

Judgment entered for the plaintiffs.

Cases

1. Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 at p 66 Applied
2. Dominic Muya Mbugua & 7 others v The City Council of Nairobi, Civil Appeal No 50 of 1976 (unreported) Applied
3. Perestrello & Campanhia Limited v United Paint Co Ltd [1969] 1 WLR 570 Referred

Texts

1. Hailsham, Lord, et al, (Ed), Halsbury’s Laws of England, Butterworths & Co: London, 4th Edn (1975) Vol XVII para 9
2. AG Guest, et al, (Ed), Chitty on Contracts, Sweet & Maxwell: London, 24th Edn (1977) paras 1494, 1497, 1504, 1552

Statutes

No statute referred to.

Advocates

Mr Akhaabi for Plaintiffs

 Mr Opiacha for Defendant