Amir A. Boy v Land Adjudication Director & another

Court of Appeal, at Mombasa July 28, 1995

Gachuhi JA

Civil Application No NAI 168 of 1995

(Application for extension of time to lodge memorandum and record of appeal out of time in an intended appeal from a ruling/order of the High Court of Kenya at Mombasa (Justice ICC Wambilyangah) dated 23rd November, 1992 in HC Misc C No 131 of 1991)

Court of Appeal - application for extension of time to file record of appeal - whether applicant is under obligation to give details of the case in support of the application.

Court of Appeal - application for extension of time to file record of appeal - applicant seeking extension of time to file record of appeal after the land subject matter of the appeal has been registered in the names of third parties-whether application if granted will not cause injustice

The applicant brought the instant application under rule 4 of the Court of Appeal Rules seeking extension of time within which to file a record of appeal.

The applicant had filed a record of appeal against the ruling of the superior court but when the same came up for hearing on 20th January, 1995, it was struck out as being incompetent for having failed to include a certified copy of the order appealed against as provided by rule 85(1)(h).

Counsel for persons directly affected by the application however opposed the application on the grounds although the Court has discretion under rule 4, such discretion should not aid a litigant who fails to lodge proper papers and seek orders for review or to cause injustice to the successful party. The applicant however maintained in his affidavit in support of the application that the omission to file certified copy of the order was bona fide and was occasioned by the misinterpretation of rule 85 by his advocate.

Held:

1. In an application for extension of time, it is unnecessary to state in detail the facts of the case, but in the present application, it is necessary to do so since counsel for the directly affected persons and Senior Principal State Counsel submitted that even if extension is granted, it will be a waste of time and money as the appeal has no prospect of success.

2. Where indulgence is sought, even if the delay be excusable the applicant still has to show that no injustice would be caused to the successful litigant.

3. The respondents and the directly affected persons have undergone traumatic process and expense in getting the ex-parte order set aside and rectification of the register. The applicant has been requested to return the titles issued to him for cancellation but has refused which refusal has caused the Kwale District Land Registrar to publish Gazette Notice No 5386 on 2nd September, 1994 to the effect that the directly affected persons named in the notice will be re-registered as owners of their respective plots. To allow the application will be an exercise in futility as the intended appeal has already been overtaken by events and it has no prospect of success.

Application dismissed

Cases

1. Brink’s-Mat Ltd v Elcombe [1988] 3 All ER 188; [1988] 1 WLR 1350

2. Owners of the Motor Vessel “Lilian S’” v Caltex Oil (K) Ltd [1989] KLR 1

3. R v Kensington Income Tax Commissioners Ex parte Princess. Edmond De Polignac (1917) 1 KB 486

4. Pollok House Ltd v Nairobi Wholesalers Ltd (No 2) (1972) EA 172

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 4, 85, 85(1) (h)

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

Advocates

Mr Gacivi for the 1st and 2nd Respondent

Contract Law-applicants wishing to be compensated for breach in local currency–whether this was contrary to the agreement and would render the country to disrepute and would receive unfair deals particularly when the local currency is weak and being subjected to devaluation

Suleiman v Karasha

Court of Appeal, at Nairobi

March 17, 1989

Gachuhi JA

Civil Application No NAI 8 of 1989

Civil Practice and Procedure – amendment of pleadings – at what stage in proceedings should be done.

Civil Practice and Procedure - extension of time - time to file and serve notice of intended appeal - computation of time - period between 21st December to 6th January not to be reckoned.

The applicant sought to appeal against an order dismissing his application to set aside default judgment against him.

Subsequent to the dismissal of his application for setting aside there were two other rulings one of which ordered his eviction.

The two orders became confusing during the hearing of the application to enlarge time for filing his appeal. The submissions were based on the earlier order instead of the later one in respect of which the applicant intended to appeal.

It therefore became apparent in the course of the argument that the parties were not in consensus in their submission as both were barring their submission on different orders.

Before the ruling could be delivered the applicant filed another application to amend his motion.

The respondent opposed the application for amendment on grounds that the application ought to have been presented separately and that it was too late.

The motion for extension of time on the other hand was filed on 22nd December, 1988 while it ought to have been filed on 14th December, 1988.

Held:

1. Under the Civil Procedure Rules the parties can amend their pleadings with the leave of court at any time before judgment.

2. It does not matter if the hearing has been concluded but the court has to consider the application for amendment and give effect to it as it may deem just.

3. The period of 21st December to 6th January in any year should not be included in the computation of time for amending, delivering or filing of any pleadings or doing of any other act.

4. The notice of appeal could have been taken as having been filed on the 7th January, 1989, a delay of six days which was not inordinate.

Application allowed.

Cases

1. Cheleta Coffee Plantations Ltd v Eric Mehlsen [1966] EA 203

2. General Manager EAR&HA v Thierstein [1968] EA 354

Statutes

1. Civil Procedure (Revised) Rules 1948 order VI rule 18

2. Court of Appeal Rules (cap 9 Sub Leg) rule 4

Advocates

Mr Kowade

Rusweti v Republic

Court of Appeal, at Nakuru

 1989

Platt, Gachuhi & Apaloo JJ A

Criminal Appeal No 140 of 1988

Criminal Practice and Procedure - appeal - second appeal - court enjined to entertain issues of la wonly in such appeal - whether merely determining an issue of la win teh appellant’s favour sufficient to interfere with the verdict - Criminal procedure Code (cap 75) section 361(1).

Criminal Practice and Procedure – charge – whether duplicity in a charge per se sufficient ground to allow an appeal.

Criminal Law – causing disturbance likely to cause a breach of the peace – whether the act must take place in a public place in order to constitute an offence – Penal Code (cap 63) sections 94, 95.

The appellant was tried and convicted of the offence causing a disturbance likely to cause breach of the peace and fined Kshs 2,000 or six months imprisonment in default. His appeal to the High Court was dismissed with High Court affirming the trial court’s verdict.

The appellant contested the conviction a second time by filing a second appeal on what he contended were grounds of law.

His argument was that although the charge conformed with the relevant section of the Penal Code (cap 63), the particulars of the charge were at variance with the charge and that no offence was committed as the Act did not take place with public place.

Held:

1. As this was a second appeal, the Court was expressly enjoined by section 361(1) of the Criminal Procedure Code (cap 75) to entertain an appeal on a matter of law and not on a matter of fact.

2. Even if the question of law can be determinated in favour of the appellant, this could not result ipso facto in the interference with the verdict. Such error must occasion a substantial miscarriage of justice.

3. While section 94 of the Penal Code (cap 63) makes conduct a punishable offence only if committed in public place, section 95 is silent on this. It is a reasonable inference that the requirement of a public place was deliberately omitted to make the act punishable whenever it was committed.

4. Even if a charge was bad for duplicity an appeal should be dismissed if no injustice was done to the appellants. The appellant failed to show that a miscarriage of justice had happened.

5. There was no suggestion that the variance between the charge as laid and the particulars in any way misled the appellant. He knew the charge he faced and his evidence was directed at meeting it.

Appeal dismissed.

Cases

1. R v Ndarama [1958] EA 294

2. R v Thompson 9 Cr App R 252

3. R v Robertson (1936) 25 Cr App R 208

Statutes

1. Penal Code (cap 63) sections 4, 94, 95(1)(b)

2. Criminal Procedure Code (cap 75) section 361(1)

3. Penal Decree [ZANZIBAR] section 173(d)

Kanyoko t/a Amigos Bar & Restaurant v Nderu & 2 others

Court of Appeal, at Nakuru

October 21, 1988

Nyarangi, Gachuhi & Apaloo JJA

Civil Appeal No 142 of 1987

(Appeal from a Ruling and Order of the High Court at Nakuru, Tunoi Ag J)

Civil Practice and Procedure – attachment before judgment – matters the court should consider before ordering such attachment – applicant acting mala fides and out of malice – court failing to consider alternative offer of security made by respondent – whether order of attachment proper - Civil Procedure Rules order XXXVIII rule 5.

The respondents/landlords brought an action in the High Court against the appellant/tenant claiming, among other relief, payment of the increased rent of the premises. The appellant denied that he had been served with the statutory notice of increase of rent.

The respondents moved the court under the Civil Procedure Rules order 38 rules 5 and 12 for attachment of the appellant’s property before judgment. The application was made ex parte and without notice to the appellant. In supporting the application, the 1st respondent swore that the he had been informed that the appellant was about to abscond and that he had disposed or removed a number of his properties. The attachment order was granted and executed.

Upon the appellant’s application, the order was set aside and the appellant proceeded to show cause why he should not furnish security. He swore that the information given by the 1st respondent was false and gave evidence to show that he was in a position to pay any judgment that could be given against him. The 1st respondent on the other hand re-iterated his information.

The court ordered the attachment of the moveable properties of the appellant and the payment by him of the broker’s charges.

Held:

1. The burden of showing that the appellant had disposed of his properties or removed them from the court’s jurisdiction or was about to abscond in either case with the object of defeating any decree that may be passed against him lay on the respondents.

2. The power to attach is not to be exercised lightly without proof of the mischief aimed and vague allegations are insufficient. The appellant’s allegations that the appellant was about to abscond were vague and there was no proof that the appellant was minded of committing the mischief of disposing his properties.

3. The facts deponed to by the appellant were weightier than the bare hearsay information related by the 1st respondent and on balance, the weight of the affidavit evidence tilted in the appellant’s favour. In any event, the appellant had offered to provide security, the sufficiency of which the judge failed to even consider.

4. An applicant for attachment before judgment must act bona fide. There was evidence that the respondent had acted unreasonably and maliciously in attaching the appellant’s property.

5. Courts should be extremely slow in ordering attachment of a defendant’s property before judgment not only because it is hardly consistent with justice to exact punishment but also because of the time-consuming process of the courts, the rights and liabilities of the parties may not be determined for a long time.

6. The attachment of the appellant’s property was wrongly granted and the respondent, not the appellant, was to be liable for the broker’s charges

and fees.

Appeal allowed.

Cases

1. Ndirangu v Abdallah [1984] KLR 746

2. Mareva Compagnie Naviera v International Bulk Carriers [1975] 2 Lloyds Rep 509; 1 All ER 213

3. Lister & Co v Stubbs (1890) 45 Ch 1

4. Ndungu v Mbugua & another Civil Appeal No 112 of 1984 (unreported)

5. Meru Farmers Co-operative Union v Suleiman (No 2) [1966] EA 442

Texts

Mulla on the Code of Civil Procedure 18th Edn

Statutes

1. Landlord and Tenant (Shops, Hotels & Caterign Establishments) Act (cap 301) sections 2, 4

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXVIII rules 5,12; order XXXIX

3. Code of Civil Procedure [India]

Shiraku v Commercial Bank of Africa

Court of Appeal, at Nairobi

July 19, 1988

Nyarangi, Platt & Gachuhi JJA

Civil Appeal No 16 of 1985

(Appeal from a decree of the High Court at Nairobi, Aganyanya J)

Damages – general damages – for wrongful dishonour of cheques – bank wrongfully dishonouring client’s cheques and endorsing “account closed” on them – client not a trader – whether client’s reputation damaged – quantum of damages.

Defamation – wrongful dishonour of cheques by bank – client’s cheques wrongfully dishonoured and endorsed “account closed” – client not a trader – whether client’s reputation damaged.

Costs – awarding of costs in suit – plaintiff successful in his claim – court awarding plaintiff only a part of his costs – court not giving reason for not awarding full costs – whether plaintiff entitled to all costs – Civil Procedure Act (cap 21) section 27.

Banking law - dishonour of cheque - wrongful dishonour - whether client’s reputation damaged by the wrongful dishonour - whether client entitled to damages.

The appellant brought a suit against the respondent bank seeking compensation for the wrongful dishonour of his cheques.

The bank, in declining to honour the cheques, had endorsed upon them the words “account closed”.

The High Court found that the appellant had proved his case and awarded him Shs 15,000 in damages and three quarters of his costs of the suit.

The appellant appealed challenging both the award of damages, which he argued was manifestly inadequate and the failure by the trial judge to award him his full costs.

Held:

1. The commercial credit of the appellant had been seriously injured by the expression “Account closed” on each of his four cheques and the effect of those words was to lower the reputation of the appellant in the eyes of ordinary right-thinking people.

2. The appellant had issued the cheques for his personal services and not for commercial transactions. He was not a trader.

3. A person who is not a trader is not entitled to recover substantial damages for the wrongful dishonour of his cheque unless the damage which he has suffered is alleged and proved as a special damage. The appellant had not proved the damage he had suffered as a special damage.

4. The trial judge did not adequately consider the ill effect of the bank’s wrongful acts on the reputation of the appellant. In the circumstances of the case, the temperate award of damages would be Shs.  40,000.

5. Contrary to the proviso to section 27 of the Civil Procedure Act (cap 21) the trial judge did not give any reason for not awarding the plaintiff/appellant his full costs. In the absence of an explanation, the judge went wrong in not awarding any costs. The appellant was entitled to his full costs.

Appeal allowed.

Cases

1. Gibbons v Westminster Bank Ltd [1939] 2 KB 882; 3 All ER 557

2. Wilson v United Counties Bank Ltd [1920] AC 102

3. Patel v National & Grindlays Bank Ltd [1969] EA 76

4. Waiguru v National Bank of Kenya [1974] EA 339

5. Marzetti v Williams (1880) 9 ER 842

6. Rolin v Steward (1854) 139 ER 245; 14 CB 595

7. Addis v Gramophone Co Ltd [1909] AC 488

8. Rae v Yorkshire Bank Plc The Times, October 16 1987

Texts

Black, HC (1979) Black’s Law Dictionary St Paul Minnesota: West Publishing 5th Edn p 1339

Statutes

1. Civil Procedure Act (cap 21) section 27

2. Penal Code cap 63) section 5

Advocates

Mr. Ombete for the Appellant

Mr. Fraser for the Respondent