Jopley Constantine Oyieng v Republic

Court of Appeal, at Nairobi

November 24, 1988

Nyarangi, Platt & Apaloo JJA

Criminal Appeal No 45 of 1988

(Appeal from an Order of the High Court at Nairobi, Aragon J)

Constitutional Law – references on the interpretation of the Constitution – references to the High Court under section 67(1) of the Constitution –procedure for making such reference–– party denied leave to make institute a private prosecution by a subordinate court – party filing application for interpretation of his constitutional rights in the High Court – whether application competent – whether application raising any issue for interpretation of the Constitution.

The appellant sought leave from a Chief Magistrate’s Court to institute a private prosecution. The Court declined to grant leave and the appellant brought an application in the High Court under sections 67 and 84 of the Constitution.

The High Court, upon a brief hearing on a preliminary objection raised by the State, observed that the wrong procedure had been followed and dismissed the application.

The appellant appealed to the Court of Appeal arguing that the High Court had not heard him on the substantive application and that the judge had erred in his conclusion that the application was incompetent.

Held:

1. The reference of an issue for the interpretation of the Constitution to the High Court under section 67(1) of the Constitution is made by the subordinate court in which the party applies for such reference; such reference is not made by the party himself.

2. In this case, there was no matter before the Chief Magistrate as to the interpretation of the Constitution and for that reason, section 67 of the Constitution did not apply.

3. The subordinate court having not made a reference to the High Court, there could not be anything in the Constitution identified for interpretation.

4. Under section 26 of the Constitution, only the Attorney-General has the right to institute criminal proceedings and no similar right is extended to a private individual. Section 26(3) contemplates prosecutions by authorised parties in respect of which the Attorney-General may act as provided in the subsection.

5. The appellant had therefore failed bring himself within the provisions of sections 70 to 83 (inclusive) of the Constitution so as to entitled him to apply for redress to the High Court under section 84 of the Constitution. His application to the High Court was therefore incompetent.

6. Even if the matter before the High Court had been competent as being an application under section 67(1) of the Constitution, there would be no appeal as no right o f appeal has been given. A right of appeal can only be conferred by statute.

Appeal struck out.

Cases

No cases referred to.

Statutes

1. Constitution of Kenya sections 26, 26(3), 67, 67(1), 70-83, 84,

2. Criminal Procedure Code (cap 75) sections 88(1), 89(5)

Kabocha & 2 others v Kamau & another

Court of Appeal, at Nairobi December 8, 1987

Apaloo JA

Civil Application No NAI 37 of 1987

(In an intended appeal from a ruling of the High Court at Nairobi, Shields J)

Extension of time – extension of time for filing appeal – Court of Appeal Rules rule 4 – nature of court’s discretion in extending time.

Appeal – parties to appeals – effect of death of party – respondent to appeal dying after lodging of notice of appeal – whether appeal rendered incompetent – Court of Appeal Rules rule 83

The applicants sought extension of time to file an appeal on the ground that copies of proceedings and judgment were received after the expiry of the time prescribed for filing an appeal.

The applicants, however, had not copied the letter requesting for the record of the proceedings to the respondent.

It transpired during the hearing of the application that the first respondent had died after the lodging of the notice of appeal and in that regard, it was argued that the application was incompetent as it sought orders against a dead person.

Held:

1. The Court of Appeal Rules rule 4, which empowers this Court to enlarge time on any grounds it deems just, confers an unlimited discretion to extend time subject only to the requirement of justice.

2. As the applicants had not copied the letter requesting for copies of the record of the proceedings to the respondent, they were precluded by the proviso to rule 81 of the Court of Appeal Rules from excluding from the prescribed time the time required for the preparation and delivery of the copies.

3. The Court of Appeal Rules evinced a clear intent that an appeal by or against a party should not be negated by the fortuitous circumstance of the death of either party. Under rule 83(2), this application could be served on the legal representative of the deceased respondent once he was duly appointed.

Application stood down sine die pending a Registrar’s certificate and service of application on a legal representative of the first respondent.

Cases

1. Najeno v Serwanga [1974] EA 322

2. Dawson v Dove [1971] 1 All ER 554

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 4, 74(1), 77, 81, 83(2)

2. Civil Procedure Act (cap 21) section 2

Advocates

Mr Khanna for the Respondents.

Shadrack Arap Baiywo v Bodi Bach

Court of Appeal, at Kisumu November 24, 1987

Nyarangi, Platt & Apaloo JJA

Civil Appeal No 122 of 1986

(Appeal from the High Court at Kisumu, Butler-Sloss J)

Civil Practice and Procedure – service of summons – service on adult member of family – when defendant cannot be found – duty to make reasonable inquiries before effecting such service – whether service made without reasonable inquiries as to defendant’s whereabouts is cured if defendant later receives summons in time – Civil Procedure Rules Order V rule 12.

Civil Practice and Procedure – judgment – default judgment – setting aside – principles the courts will consider in an application to set aside – applicant stating merely that he has a good defence without disclosing nature of the defence – whether applicant entitled to an order setting aside judgment.

The respondent filed a suit against the appellant in which an interlocutory judgment was given in default of the appellant entering an appearance or filing a defence.

The appellant’s application challenging the interlocutory judgment on the service of summons was dismissed, with the High Court holding that service of summons had been proper and the judgment had been duly entered.

The appellant appealed against the decision. His advocate submitted that the service of summons, which the process server swore was effected on a son-in-law of the appellant, was defective because the process server had not shown that the appellant could not be found.

Held:

1. Where there is no proper service of summons, then ex debito justitiae, a judgment by default must be set aside because such judgment can only be entered if there has been an initiating process concerning which a defendant is at fault.

2. A process server is required to make reasonable enquiries in order to serve the summons on the defendant personally. The affidavit of the process server was uninformative about his inability to find the appellant.

3. A service which is not entirely satisfactory and which might be set aside is capable of being cured and becoming a good service. It may be cured, as it was in this case, where the adult member of the family who has been served gives the summons to the defendant within time for the defendant to act.

4. The appellant bore the burden of disproving service and on the basis of the return of service and the affidavit of the process server, he did not discharge that burden.

5. The Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction unless he is shown to have applied the wrong principles.

6. The Court, in exercising its discretion to set aside the default judgment, would be guided by the rule that where the judgment has been obtained regularly, there must be an affidavit of merits, meaning that the appellant must satisfy the Court that he has a prima facie defence.

7. If there are merits in the defence, it would be unjust not to allow them to be heard, even if judgment was obtained regularly. On the other hand, if there are no merits, judgment should stand.

8. The appellant merely stated that he had a good defence; he did not put forward a defence. There was no ground upon which the Court could exercise its discretion to vary or discharge the judgment entered by default.

Appeal dismissed.

Cases

1. Kanji Naran v Ramji (1954) 21 EACA 20

2. Waweru v Kiromo [1969] EA 172

3. Evans v Bartlam [1937] 2 All ER 654

4. Mbogo v Shah [1967] EA 116

5. Patel v EA Cargo Handling Services Ltd [1974] EA 75

6. Amin Rasheed Shipping v Kuwait Insurance Co [1983] 1 All ER 873

7. Garcher v Jay (1885) 29 Ch D 50

8. M B Automobile v Kampala Bus Service [1966] EA 480, 484

9. Erukana Kavuma v ST Mehta [1960] EA 305

10. Pirbhai Lalji & Sons Ltd v Hassanali Devji [1962] EA 306

11. Robinson v Oluoch [1971] EA 376

Texts

Chitaley, DV & Rao SA The Code of Civil Procedure Vol II p 1670

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order IXA rules 5, 10; order V rules 9, 12, 17

J K Industries v Kenya Commercial Bank Ltd & another

Court of Appeal, at Nairobi November 20, 1987

Nyarangi, Platt and Apaloo JJA

Civil Application No 130 of 1987

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

Dugdale J)

Civil Practice and Procedure – injunction – application for interim injunction against receiver manager pending appeal against refusal of such injunction by High Court–– matters the court will consider–– whether status quo should be maintained - Court of Appeal Rules rule 5(2)(b).

Company law – receivership – right of debenture holder to appoint receiver and manager - reluctance of court to interfere with that right where it is properly exercised.

The applicant company obtained monies from the two respondent banks which were secured by debentures entitling the banks to appoint receivers and managers with power to sell, let or concur in the selling or letting of any charged property.

After the applicant company failed to comply with a demand for repayment made by the first respondent, the latter appointed a receiver and manager over the company’s assets. This it did jointly with the second respondent or with its approval.

The applicant instituted a suit and obtained an interim injunction ex parte restraining the disposition of its assets by the receiver manager. When the application for injunction was heard inter partes, the court declined it and the ex parte injunction was discharged. The applicant appealed against the decision and filed this application under rule 5(2)(b) of the Court of Appeal Rules urging the Court to restrain the receivers and managers from disposing its assets pending the determination of the appeal.

Held:

1. The issue that this Court was required to consider was whether the status quo should be maintained pending the hearing of the appeal. In order to attract the Court’s discretion, the applicant must show that a reasonable argument can be put forward in support of the appeal.

2. Where a debenture holder’s right to appoint a receiver to manage a company’s affairs accrues, it is a matter for the judgment of business when that right should be exercised and it is not the business of courts. Indeed, the courts have held that a debenture holder is under no duty to refrain from exercising its rights because doing so might cause loss to the company or its unsecured creditors.

3. The applicant had failed to present a reasonable case that the first respondent bank was estopped from exercising its contractual right to appoint a receiver or that the second respondent bank was precluded by law from appointing a receiver without making a formal demand for repayment of its debt.

4. The directors of the applicant company had not shown that they could provide an acceptable undertaking in damages and there was little doubt that the two respondent banks were in a position to pay any damages that the company may suffer in the unlikely event of the latter being successful in its suit.

5. Greater hardship would be caused in granting this application than in refusing it.

Application dismissed.

Cases

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

2. Salim v Okong’o [1976] KLR 42

3. Jethabhai v Fischer Civil Appeal No 5 of 1980 (unreported)

4. Butt v Rent Restriction Tribunal [1982] KLR 417

5. Madhupaper International Ltd v Kerr [1985] KLR 846

6. Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] 2 All ER 633

Statutes

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

Advocates

Mr Mutula Kilonzo for the Applicant.

Mr George Oraro for the First Respondent.

Mr K A Fraser for the Second Respondent

Kenya National Assurance Co Ltd v Kimani & another

Court of Appeal, at Nairobi November 4, 1987

Nyarangi, Platt & Apaloo JJA

Civil Appeal No 42 of 1984

(Appeal from the decision of the High Court at Nairobi, Sachdeva J)

Insurance – liability of insurer under a contract of insurance – insurer accepting “excess” from insured – insurer repudiating contract for breach of condition – whether retention of “excess” constituting a waiver of the right to repudiate liability.

Contract – waiver and estoppel – contract of insurance – insurer repudiating contract after accepting and retaining “excess” from insured – whether retention of “excess” amounting to waiver of the right to repudiate – whether insurer estopped from repudiating the contract.

Arbitration – setting aside of an arbitrator’s award - jurisdiction of High Court to set aside award – matter of law not specifically referred to arbitrator arising incidentally in the reference – whether court may interfere with award.

The appellant company issued an insurance policy in which it undertook to indemnify the respondents against loss or damage to their motor vehicle and also against claims by third parties for personal injuries arising out of accidents involving the motor vehicle.

The vehicle was involved in an accident in which loss and personal injuries were caused to third parties. As the vehicle was extensively damaged and it was written off as a total loss, the respondents sought to be indemnified by the appellants for its loss.

Under the terms of the policy, the respondents were to bear the first Shs 12,000 of the total loss, technically referred to as the “excess”. The respondents accordingly paid this amount to the appellants. However, about three months later, the appellant informed the respondents that it was repudiating its liability to indemnify them for the reason that they had breached a condition of the policy which obliged them to maintain the motor vehicle in an efficient condition.

An arbitrator found that the vehicle had not been maintained in an efficient condition and that the appellant was not bound to indemnify the appellants. The High Court, in setting aside the arbitrator’s award, found that the retention of the premium or the excess by the appellant after the discovery of the breach of the policy amounted to an affirmation of the insurance policy. The appellant appealed.

Held:

1. The principle of waiver is that if one party by his conduct leads another to believe that strict rights arising under the contract will not be insisted on, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him to do so.

2. A waiver of a breach of a condition in a contract of insurance can arise if it amounts to an estoppel by conduct on the part of the insurer.

3. The appellant had expressly repudiated the insurance contract and there was no evidence that it intended to affirm the contract. The appellant was therefore not estopped by conduct from asserting its rights under the contract.

4. There was no evidence to show that as a result of the retention of the excess, the respondents had been led into believing that the appellant would not assert their rights under the contract or that they had been led into acting to their detriment.

5. Per Platt JA: The premium is the consideration of the contract and it can be said that payment of the premium keeps the contract alive. The payment of the excess is done as part of the performance of the contract. The excess is not of the same nature as those conditions which must be fulfilled in order that the contract will not be avoided ab initio.

6. Per Platt JA: If a specific question of law is submitted to an arbitrator for his decision and he does decide it, the fact that the decision is erroneous does not make the award bad on its face so as to permit of its being set aside. In this case, the question of waiver was not specifically referred to the arbitrator as a matter of law but it arose incidentally in the course of the reference. The High Court therefore had jurisdiction to interfere with the arbitrator’s award.

Appeal allowed.

Cases

1. Hodkinson v Fernie (1887) 140 ER 712

2. George & Goldsmiths v General Burglary Insurance Associates, Re (1899) 1 QBD 595

3. Hemmings v Sceptre Life Assoc Ltd [1905] 1 Ch 365

4. Landauer v Asser [1905] 2 KB 184

5. King and Duveen, Re [1913] 2 KB 32

6. Kelantan Government v Duff Development Co Ltd [1923] AC 395

7. Champsey Bhara and Co v Jivraj Baloo Spining and Weaving Co Ltd [1923] AC 480

8. Absalom (FR) Ltd v Great Western (London) Garden Village Society [1933] AC 395

9. Plasticmoda Societa Per Anioni v Davidsons (Manchester) [1952] 1 Lloyd’s Rep 527

10. Conn v Westminster Motor Insurance Assoc [1966] 1 Lloyd’s Rep 407

11. Lickiss v Milestone Motor Policies at Lloyds [1966] 2 All ER 972

12. South British Insurance Co Ltd v Samiullah [1967] EA 659

13. Moledina & Co v Hoima Ginners Ltd [1967] EA 645

14. Pioneer General Assurance Society v Mukasa [1974] EA 165

Texts

1. Hailsham, Lord et al. (Eds) (1931-42) Halsbury’s Laws of England London: Butterworths 2nd Edn para 623

2. Burke J & Allsop P (Eds) (1955) Chitty on Contracts London: Sweet & Maxwell 21st Edn

3. MacGillavray, E J & Parkington, M Insurance Law London: Sweet & Maxwell

4. Ivamy, E R H General Principles of Insurance Law London: Butterworths

5. Simonds, V et al. (Ed) Halsbury’s Laws of England London: Butterworths 3rd Edn Vol XXII

Statutes

1. Arbitration Act (cap 49) sections 22,24

2. Arbitration Rules (cap 49 Sub Leg) rules 4,6

3. Motor Vehicles (Third Party Insurance) Act (cap 368) section 10

Advocates

S Kinyajui for the Appellant.

R K Mitra for the Respondents.

Mwakio v Kenya Commercial Bank Ltd

Court of Appeal, at Nairobi May 12, 1987

Apaloo JA

Civil Application No 147 of 1986

Civil Practice and Procedure – pleadings - amendment of pleadings - applications for – factors to be considered – exercise of discretion to allow or disallow amendment.

The appellant made a claim for certain declaratory reliefs and damages against the respondent bank in the High Court. The High Court dismissed the claim prompting the appellant to appeal. In the appeal the appellant sought to include additional grounds not part of the original record. This application is for leave to amend the record so as to include the additional grounds.

Held:

1. Leave to amend should not normally be declined unless it would occasion injustice to the other side.

2. Leave to amend should always be granted unless the court is convinced that the party applying is acting mala fides or that it will cause an injury to the opponent which could not be compensated for by way of costs or otherwise.

3. On the facts of this case, there was no basis for saying that in seeking to amend, the applicant was acting mala fides or that his omission to include the additional grounds in the memorandum of appeal caused any injury to the respondent, still less any that cannot be compensated in costs.

Cases

Tildesley v Harper (1878-9) 10 Ch D 393; 48 LJ Ch 495; 39 LT 552

Statutes

Court of Appeal Rules (cap 9 Sub leg) rules 44,84

Karanja v Inter Continental Hotel & another

Court of Appeal, at Nairobi April 15, 1987

Nyarangi, Platt & Apaloo JJA

Civil Appeal No 38 of 1985

(Appeal from the High Court at Nairobi, O’Kubasu J)

Court of Appeal – powers of – to interfere with assessment of damages by trial court – when court of appeal will reverse assessment of damages.

Damages – general damages - for personal injury and loss of dignity - injury suffered during forceful eviction from premises - quantum of damages.

The appellant had sued the respondents for damages for personal injury, indignity and humiliation. The High Court found that the respondent had used excessive force while evicting the appellant form its premises thus occasioning him loss of dignity and slight injuries. The court awarded the appellant Kshs 2,000 in damages. The appeal is against the quantum only, on the grounds that the trial judge erred and misdirected himself on the principles applicable in considering the award of damages.

Held:

1. The Court of Appeal will not interfere with the assessment of damages of a trial court merely because it thinks that if it had tried the case in the first instance it would have given a different sum.

2. The Court of Appeal may reverse the damages awarded by the trial court if it is satisfied that the judge acted on some wrong principle of law or that the amount awarded was too high or too low so as to make it an entirely erroneous estimate of the damages.

3. It is proper for a court invited to assess compensation to a party who suffered injuries as a result of assault to take into consideration the fact that the injured was in some part responsible for the damage he suffered.

4. A person who causes or takes part in a fight as a result of which he is unlawfully assaulted ought not in an action for damages to have full pecuniary compensation because that would be treating him as if he is wholly blameless; thereby ignoring part of relevant evidence.

5. The award of Kshs 2,000 for the appellant’s slight injuries and loss of dignity was not so small as to be an entirely erroneous estimate of the damage.

Appeal dismissed.

Cases

1. Flint v Lovell [1935] KB 354

2. Lane v Halloway [1968] 1 QB 379

3. Fontin v Katapodis [1962] 108 CLR 177

4. Gray v Barr [1971] 2 All ER 949

5. Murphy v Culhane [1976] 3 All ER 533

Texts

1. Chambers English Dictionary

2. Little Oxford Dictionary Oxford: Oxford University Press

Statutes

No statutes referred.

Advocates

Mr Hayanga for the Appellant.

Murube & another v Republic

Court of Appeal, at Nairobi December 22, 1986

Nyarangi, Platt & Apaloo JJA

Criminal Appeal No 159 of 1984

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

Evidence – identification evidence - identification by a single witness – how court should treat such evidence – whether such evidence sufficient to sustain conviction.

The appellants were tried and convicted in the High Court for the offence of murder. The conviction was based largely on the evidence of a single witness who informed the court that the appellants had been in a gang of persons who attacked her family in the night and killed her mother. The witness testified that she was able to recognize the appellants on account of their voices and the artificial light used during the attack.

In their appeal against their conviction, the appellants argued, among other things, that the circumstances of the material night did not favour a proper identification.

Held:

1. Though a fact may be proved by the testimony of a single witness, there remains the need to test with the greatest care the identification evidence of such a witness especially when it is shown that the conditions favouring a correct identification were difficult.

2. In the evaluation of the evidence of the identifying witness, the Court was to ensure beyond all reasonable doubt that the witness was honest and unmistaken about her identification of the appellants.

3. The witness’ evidence of identification by recognition left no doubt in the Court’s mind that she had recognized the appellants among the persons who murdered the deceased.

4. The appellants had been convicted on cogent evidence.

Appeal dismissed

Cases

1. Abdallah bin Wendo v R (1953) 20 EACA 166

2. Dinkerrai Ramkrishan Pandya v R [1957] EA 336

3. Karanja (Kariuki) v Republic [1986] KLR 190

4. Mwangi, Robert Muthee & another v R Criminal Appeal No 121 of 1984 (unreported)

5. Roria v Republic [1967] EA 583

6. R v Turnbull [1976] 3 All ER 549; [1977] QB 224

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr Osoro for the Appellants

Mr Murgor for the Respondent