CIVIL APPLICATION NO NAI 106 OF 1998

APPEAL-Discretion-unfettered discretion-where one applies to the court of appeal to extend time to file record of appeal- whether the court of appeal has unfettered discretion-how the court of appeal should exercise such discretion.

APPEAL-extension of time-to file notice of appeal-where it has been established that there has been no inordinate delay on the part of the applicant- whether therefore the discretion should be exercised in favour of the applicant.

SUMMARY OF THE FACTS

This was an application by the applicant seeking the court of appeal to extent time so as to file the record of appeal out of time. This was due to dissatisfaction with the judgment delivered on 1^st November 1995, by Wambilyangah, J, in H.C.C.C. No 424 of 1992.The Notice of Appeal was filed by his counsel, Mrs. Khaminwa, on 7^th November, 1995.

The supporting affidavit sworn by Mrs. Khaminwa stated that although she applied for certified copies of the proceedings and judgment on 13^th November, 1995, the same were not made available to her till 17^th December, 1997. She further stated that she also had to obtain another document called “Certificate of Delay” to be included in the record of appeal. The Deputy Registrar who was supposed to sign that Certificate is said to have taken his time. He signed it and delivered it to Mrs. Khaminwa on 3^rd March, 1998. That was after she had made a number of visits to the Deputy Registrar’s office and followed up the matter with reminding letters but to no avail.

The application was resisted by one Mr. Ngibuini, counsel for the respondents. He objected to it because according to him the delay in fling the appeal was inordinate. He contended that the sixty days from the date of filing the Notice of Appeal and within which the appellant was supposed to file the appeal expired on 7^th January, 1996. He further submitted that even allowing the time for the delay in supplying certified copies of the proceedings and judgment the appellant’s counsel has not acted with expedition arguing that she was supplied with the said copies by 17^th December, 1997, and could have lodged the record of appeal in February, 1998.

To this contention Mrs. Khaminwa replied that the appeal could not be lodged without the Certificate of Delay, which was an essential document. She added that the respondents were not going to be prejudiced by filing of the appeal.

HELD:

1. The Court agrees with both counsels that it has unfettered discretion in this matter and that all the same that discretion should be sparingly exercised where there has not been inordinate delay in taking action to file the record of appeal.
2. There must be sufficient reason for extending the time limited by the rules of the Court. Whether there would be prejudice to the respondent or whether the appeal has prospects of success are issues to be considered only after it has been established that there has been no inordinate delay and therefore there is sufficient reason for exercising the discretion in favour of the applicant.

Application allowed

[RULING] Constitutional Law-fundamental rights-appellant charged with unlawful assembly-whether the referral jurisdiction to of a constitutional court could be exercised by a single judge

[RULING] Constitutional Law-fundamental rights-appellant charged with unlawful assembly-whether the referral jurisdiction to of a constitutional court could be exercised by a single judge

International Laboratory for Research on Animal

Diseases v Kinyua

Court of Appeal, at Nairobi May 25, 1990

Masime JA, Chesoni & Cockar Ag JJ A

Civil Application No NAI 42 of 1990

(An application for stay of Execution in an intended appeal from

a judgment of the High Court of Kenya at Nairobi (Gicheru J)

dated 19th October, 1989 in HCCC No 949 of 1986)

Civil Practice and Procedure – stay of execution – application for stay in the Court of Appeal – Court not bound by considerations under Civil Procedure Rules – Rule 5(2) (b) Court of Appeal Rules - stay of execution - allegation of impecunity of respondent -onus on him to rebut the allegation.

The respondent was awarded some Kshs 145,000 less tax against the applicant who was his former employer. The applicant filed a notice of appeal against the judgment and at the same time sought a stay of execution against the High Court’s judgment. His application for stay was refused.

The applicant renewed the application in the Court of Appeal averring that there was reasonable and justifiable apprehension that if the appeal was successful it would not be possible to recover any money from the respondent.

The respondent opposed the application avering that the mere act of filing an appeal was not a sufficient cause for a stay. However, the respondent, in his replying affidavit omitted to rebut the allegation of his inability to repay the judgment award back to the applicant if the appeal succeeded.

Held:

1. The Court of Appeal is not bound by considerations in Order 41 of the Civil Procedure Act which the High Court must observe when dealing with an application for stay of execution pending hearing in that court.

2. Under the Court of Appeal Rules rule 5(2)(b), the Court of Appeal has an unfettered discretion to grant a stay provided it is just to do so.

3. The onus was on the respondent to rebut by evidence the claim that the intended appeal if successful would be rendered nugatory on account of his (respondent’s) alleged impecunity.

4. The allegation that there was a reasonable and justificable apprehension of the applicant being unlikely to recover the money from the respondent called for rebuttal evidence, which was not given.

5. The circumstances favoured the granting of a stay of execution.

Application allowed.

Cases

1. Atkins v Great Western Railway Company (1885-86) 2 TLR 400

2. Kenya Shell Ltd v Kibiru & another [1986] KLR 410; [1982-88] 1 KAR 1018

Texts

1. Simonds, Vet al (Ed) (1952-64)Halsbury’s Laws of England London: Butterworths 3rd Edn p 35 para 51

2. Jacob, IH et al (Ed) (1965) The Annual Practice 1965 London Sweet & Maxwell, Stevens & Sons Ltd

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2) (b)

2. Civil Procedure Rules (cap 21 Sub Leg) order XLI

Advocates

Mr Sehmi for the Respondent

Mr Sampson for the Applicant

Republic v Francis Otieno Oyier

Court of Appeal, at Kisumu

June 25, 1985

Hancox, Nyarangi JJA & Chesoni Ag JA

 Criminal Appeal No 158 of 1984

(Appeal from the High Court at Kisumu, Schofield J)

Criminal law – rape – offence of – contrary to section 140 of the Penal Code (cap 63) - essential elements of the offence – elements to be proved by prosecution – lack of consent - nature of mens rea in such offence - how mens rea is proved - corroboration in a rape case - report of rape made by complainant shortly after its occurrence - whether this is amounts to corroboration of the complainant’s story - report of rape made by complainant three days after its occurrence - whether delay unreasonable as to imply that complainant untruthful.

Appeal - Court of Appeal - powers of - on findings of lower court - findings of lower court made on the credibility of witnesses - circumstances in which an appellate court may reverse such findings.

The respondent was charged and convicted of rape and assault contrary to sections 140 and 251 of the Penal Code (Cap 63). His appeal to the High Court was allowed and the Republic appealed.

 Held:

1. The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not.
2. To prove the mental element required in rape, the prosecution had to prove that the complainant physically resisted or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.
3. Where a woman yields through fear of death or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.
4. In a rape case, the fact that a complaint is made by the victim shortly after the alleged offence is merely evidence of the consistency of the conduct of the victim with her evidence given at the trial and it cannot be regarded as corroboration of the story of the complainant.
5. The complainant reported the incident of her rape on the third day from the date it took place. That was not an unreasonable delay as the complainant had felt embarrassed.
6. The first appellate court could not interfere with those findings by the lower court which were based on the credibility of witnesses unless no reasonable tribunal could make such findings or it was shown that there existed errors of law.

Appeal allowed.

Cases

1. Upar v Uganda [1971] EA 98
2. DPP v Morgan (1975) 61 Cr App R 136
3. R v Harwood K (1966) 50 Cr App R 56
4. R v Coulthread (1934) 24 Cr App Rep 44

Texts

1. Mitchell, S.G. at al (Eds) (1979) Archbold: Criminal Pleading, Evidence and Practice in Criminal Cases London:Sweet & Maxwell 40th Edn pp 1411, 1412 para 288

Statutes

1. Penal Code (cap 63) sections 140, 251

Advocates

1. Mr Behan for the Respondent

Sapra Studio v Kenya National Properties Limited

Court of Appeal, at Nairobi

April 25, 1985

Hancox, Nyarangi JJA & Chesoni Ag JA

Civil Appeal No 68 of 1983

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

Contract – mistake – mistake of law – mistake as to the effect of a public statute - whether such mistake rendering contract void.

Contract – breach of – damages for – measure of such damages – where breach occasioned by common mistake of law.

Landlord and Tenant – agreement to lease – parties under a common mistake of law – effect of such mistake on agreement – damages to which innocent party entitled – measure of damages.

In 1961, company M leased certain parts of its premises to company K for a term which was to expire on November 7, 1975. In 1965, the unexpired portion of the lease was assigned to company KC and in 1973, the premises were acquired by the respondent, subject to the remainder of the lease to KC. KC had, in turn, sub-leased part of their area to the appellant for a term of five years also expiring on November 7, 1975.

After this date, the appellant, who desired to be a direct tenant of the respondent, continued to occupy the premises and paid its rent to the respondent directly for six months. In due course, KC contended that the lease to it fell within the meaning of a controlled tenancy under section 2(1) of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act (cap 301) and that the appellants were still their subtenants, and in a suit against the respondent, KC obtained a declaration to that effect.

The appellant then sued the respondent upon the agreement to grant the appellant a lease after November 7, 1975. In dismissing the suit, the trial judge held that the parties had been under the mistaken belief that the lease to KC would expire on 7th November, 1985, a mistake of fact sufficiently fundamental to avoid the contract under which the respondent was to grant the appellant a lease after November 7 1985. However, in the event that an appeal was successful, the judge assessed the appellant’s damages as the difference between thirty-five month’s rent and the sum stated in the agreement plus the legal costs incurred by it. The appellant appealed.

Held:

1. Neither party to this appeal was under any misapprehension as to the fact that there was in existence a contractual relationship between the respondent and Kenya Cold Storage which, in the contemplation of at least one of those parties, and also in the contemplation of the appellant, was due to terminate on November 7, 1975.

2. The mistake made by the appellant and the respondent was as to the effect of a public statute, namely, the effect that the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act (cap 301) would have on their agreement. As a general rule, relief will not be granted on the ground of mistake if the mistake is one of law as distinguished from a mistake of fact.

3. As the mistake was one of law, the contract between the parties was not avoided and it subsisted at the time of the action and the appellant was entitled to relief for breach or failure to complete on the part of the respondent.

4. The appellant was not entitled to the difference between the rent paid and the rent for thirty-five months because that cannot be said to have reasonably been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.

5. The damages to which the appellant was entitled was a refund of the rent paid to the respondent, its advocate’s costs and nominal damages of Shs 2,000 for the respondent’s involuntary breach of the agreement with it.

Appeal allowed.

Cases

1. African Universal Merchandise Ltd v Kulia Investment Ltd Civil Appeal 8 of 1980

2. Soper v Arnold (1887) 37 Ch D 96

3. Rogers v Ingham (1876) 3 Ch D 351

4. Bridland v Shapter 8 LJ Ex 246

5. Re Negus (1895) 1 Ch 73

6. Bell v Lever Bros [1932] AC 1

7. Marshall v Berridge (1881) 19 Ch D 233

8. Nicholson and Venn v Smith Marriott (1947) 177 LT 189

9. J W Cafes Ltd v Brownlow Trust Ltd [1950] 1 All ER 894

10. Flureau v Thornhill (1776) 96 ER 635

11. Lock v Furze [1866] LR 1 CP 441

12. Bain v Fothergill [1874] LR 7

13. Wroth v Tyler [1973] 1 All ER 897; [1973] 2 WLR 405; [1974] 1 Ch 30

14. Day v Singleton [1899] 2 Ch 320

15. Hadley v Baxendale (1854) 9 Exch 341

16. Solle v Butcher [1949] 2 All ER 1107; [1950] 1 KB 671

17. Hanslip v Padwick (1850) 5 Ex 615

18. Hollington Brothers v Rhodes [1951] 2 All ER 578

Texts

1. James J.S. (1971) Stroud’s Judicial Dictionary of Words & Phrases

London: Sweet & Maxwell 4th Edn

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

Maxwell 2nd Edn

3. Saunders, J.B. (Ed) (1969) Words and Phrases Legally Defined

London:Butterworths 2nd Edn p 174

4. Hailsham, Lord et al. (Eds) (1979) Halsbury’s Laws of England, London:

Butterworths 3rd Edn Vol XXVI para 1656

5. Guest A.G. et al. (Eds) (1968) Chitty on Contracts London: Sweet &

Maxwell 23rd Edn Vol I pg 95 & 96

6. McGregor, H. (1972) McGregor on Damages London:Sweet & Maxwell

13th Edn

7. Black, H.C. (1979) Black’s Law Dictionary St Paul Minnesota: West

Publishing 5th Edn pp 800, 1313

Statutes

1. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

(cap 301) section 2(1)

2. Rent Restriction Act 1920 [UK]

3. Rent Restriction Act 1939 [UK]

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

Advocates

Mr. Esmail for the Appellant

Mr. Wamae for the Respondent

Blassio Simiyu & Dorcas Simiyu  v Vincent Wanjala Sinino & James Kuloba

Court of Appeal, at Kisumu

April 24, 1985

Hancox JA, Chesoni & Nyarangi Ag JJA

Civil Appeal No 108 of 1984

 (Appeal from the High Court at Kakamega, Gicheru J)

Execution - wrongful attachment - attachment of livestock - whether by setting off execution a creditor can be guilty of trespass when execution is levied on wrongful party.

Family law - marriage - promise to marry - breach of – whether under Luhya customary law a girl can recover against her paramour.

Dorcas, a daughter of the appellant, sued one James Kuloba who had allegedly impregnated her and for good measure sued Vincent Wanjala Sinino the father of James Kuloba. It s not clear why he was joined as it was his son who breached his promise to marry Dorcas. Neither of the defendants appeared in court on the date fixed for hearing. The case proceeded ex parte and judgment was given in favour of Dorcas. She received compensation as ordered. Subsequently the judgment was set aside by another magistrate on application by the defendants. No order was made for a refund of the compensation paid to Dorcas and about 5 months later the magistrate ordered that attachment of Dorcas’ property by the defendants. The property of the appellant was attached and he successfully objected to the same. He filed suit for recovery of general and special damages of Kshs 918/50. The court broker who executed against him was not joined. He got judgment for Kshs 10,000 as general damages and Kshs 918/50 as special damages against the respondents jointly and severally.

The respondent and his son successfully applied to the High Court for the award to be quashed. The warrant giving rise to the execution the appellant suffered, had the name of the appellant instead of that of Dorcas who was the party in the suit for breach of promise to marry. The appellant appealed against the order of the High Court.

Held:

1. The wrongful setting in motion of execution by a judgment creditor is actionable against the judgment creditor and court broker as a trespass even if malice is not shown.
2. When no valid order exists the subsequent attachment is without any colour of right and the broker is liable together with those collaborating with him for their acts if those acts resulted in a tort. The trespass is actionable per se without proof of actual damage to the chattel.
3. (Per Nyarangi Ag JA) Under Luhya customary law only the father or guardian of a girl has a cause of action against her paramour and not the girl herself for a breach of promise to marry or seduction.

Appeal allowed.

Cases

1. Davis & Shirtliff Ltd v The Attorney General [1978] KLR 272
2. Clissold v Cratchley [1910] 2 KB 244
3. Morris v Salberg (1889) 22 QBD 614
4. Dunlop v Woollahra Municipal Council [1981] 1 All ER 1202; [1982] AC 158
5. Sowell v Champion (1837) 6 A & E 407

Texts

1. Heuston, R.F. (1969) Salmond on the Law of Torts London:Sweet & Maxwell 15th Edn p 551
2. Dias, R.W. (Ed) (1982) Clerk & Lindsell on Torts London:Sweet & Maxwell 15th Edn para 18-42, 18-07
3. Hailsham, Lord. et al.(Ed) (1975) Halsbury’s Laws of England London:Butterworths 4th Edn Vol XVII paras 457, 432
4. Armitage, A.L., Dias, R.W.M. (Eds) (1975) Clerk & Lindsell on Torts London:Sweet & Maxwell 14th Edn p 369 para 694, p 670 para 1073
5. Cotran, E. (1968) Restatement of African Customary Law:Laws of Marriage and Divorce London:Sweet & Maxwell Vol I p 55

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order IXA rule 10, XXI rules 6, 7(2)
2. Government Proceedings Act (cap 40) section 4(5)
3. Judicature Act (cap 8) section 6 4. Age of Majority Act (cap 33)

Advocates

Mr Munishi for the Appellant.