Joseph Kamunge Kamau v Edmond Kwena Nduzi

High Court, at Nairobi March 18, 1992

Walekhwa J

Civil Case No 3486 of 1987

False imprisonment – cause of action - circumstances under which an action of false imprisonment can arise – where there is a reasonable and probable cause – whether such a claim can arise.

Battery – where the aggressor cannot be determined – whether the blame can be apportioned.

Malicious prosecution – where the prosecution ends in an acquittal – whether the acquittal denotes that there was no reasonable and justifiable case for the prosecution.

Damages – special damages – where only photocopies of receipts are produced – whether it amounts to proof of special damages.

The plaintiff lodged a claim averring that the defendant maliciously and without reasonable and/or justifiable probable cause laid false information that he had been assaulted leading to the arrest, imprisonment in police custody and prosecution of the plaintiff where he was acquitted. He further pleaded that he was wrongfully assaulted suffering severe body injuries and was put to a considerable expense. The defendant denied the allegations and contended that the information was honestly laid and it was upon the police to prosecute but not at his instigation.

Held:

1. An action for false imprisonment can only lie where the action taken was without a reasonable or probable cause.

2. In the absence of determining the aggresson it was not possible to pin point the blame on to either party.

3. It is a general rule that a party is bound by his pleadings and there is no way he can go round it.

4. The fact that a complainant does not succeed in getting a conviction does not in any way mean that he had no reasonable and justifiable cause.

5. Special damages must not only be specifically pleaded but must be proven at the trial with certainty and particularity. Without the original receipts being produced the photocopies cannot be produced to form part of the evidence.

Cases

1. Clifton v Hawley [1966] EA 44

2. Fernandes v Commercial Bank of Africa Ltd [1969] EA 482

3. Ouma v Nairobi City Council [1976-80]1 KLR 375

Statutes

1. Penal Code (cap 63) section 251

2. Customs & Excise Act (cap 472)

3. Criminal Procedure Code (cap 75)

Gladys Nyaguthii v Speedways International Ltd

High Court, at Nairobi March 18, 1992

Walekhwa J

Civil Case No 569 of 1988

Contract - breach of - where one contracts with another verbally followed by acknowledgement in writing - whether there is a valid contract - whether damages are payable on breach of such a contract.

The plaintiff, by agreement with the defendant agreed to let out or hire and the defendant agreed to take the plaintiff’s motor vehicle registration number KWW 874 a Toyota lorry to transport goods from Nairobi to Juba Sudan in consideration of Shs 46,000. The defendant paid Kshs 23,000/= leaving a balance of 23,000/=.

It was contended by the plaintiff that while on transit to Kenya the defendant requested to use the said vehicle to ferry UNHCR relief food to Northern Uganda, the vehicle stayed there for four months and made 4 trips to Nothern Uganda and Sudan. The plaintiff’s claims from defendants Kshs 180,000/= alleging that these were reasonable hire charges. The plaintiff also claimed Kshs 25,000/= allegedly reasonable expenses incurred while retrieving the lorry. The defendant denied all these and also refused to pay Kshs 23,000/= until the plaintiff produced duly endorsed and stamped customs and excise department documents showing the plaintiff delivered the consignment subject of export from Kenya. The defendant further denied that the sum of Kshs 180,000/= was due from defendant alleging that even if the hire charges, were payable the rate of Kshs 45,000/= was unrealistic, excessive and unreaonable. The defendant further denied that he was liable for any damages.

Held:

1. It was clear that since the defendant suffered no loss as a result of failure to have customs forms endorsed by plaintiff, there was no justifiable reason for withholding payment of the balance of Kshs 23,000/=.

2. The general principal is that a party is bound by his pleadings. The defendant knew that it was Afric States who were to look for trucks to transport relief food to Nothern Uganda, and so they could have pleaded of in their defence and brought Afric States Ltd as a 3rd party.

3. The extense showed that it was the defendant’s agents who contracted the plaintiff verberly followed by an acknowledgement which  constituted a duly executed contract binding on both parties and as such charges where payable in respect of the same.

4. The general rule concerning claims where no receipt is produced is that the Court has to make a reasonable assessment.

5. Having considered the pleadings as well as the evidence on the record, it is found that the suit is not bad in law and discloses a reasonable cause of action against the defendants.

Judgement entered for the plaintiff.

Cases

Kampala City Council v Nakaye [1972] EA 446

Statutes

No statutes referred.

Kurui & 2 others v Cherop

High Court, at Eldoret March 6, 1992

Walekhwa J

Civil Case No 20 of 1991

Adverse possession – change of title - where a change of title by virtue of succession occurs- whether the time of limitation begins to run afresh.

Adverse possession – proof of possession- where it is alleged that the claimant has been cultivating the land- evidence of cultivation must be definite as to the area and time.

The plaintiffs filed a case seeking eviction against the defendant. They alleged that they were heirs to the said parcel of land Elgeyo Border SFT plot No 281 which they inherited from their late father to which they had already been issued with a title deed. The defendant averred that he bought the plot in the year 1963 from the father of the plaintiffs and had been in occupation since 1963 and had acquired adverse possession on it.

The plaintiffs in their evidence stated that upon making inquiries at the settlement office, they found that the loan had not been paid and so they paid off the loan. The defendant maintained that he purchased the property but the property was not transferred to him and had been cultivating it from the year 1963.

Held:

1. In adverse possession claims, it is a general rule that the period starts running afresh whenever there are changes in the title.

2. Where cultivation of land is advanced to support the claim to adverse possession the evidence of the cultivation must be definite as to the area and time.

Judgment for the Plaintiffs.

Cases

1. Kimani Ruchine & another v Swift, Rutherford & Co Ltd & another [1976-80]1 KLR 1500

2. Sospeter Wanyoike v Waithaka Kahiri [1976-80] 1 KLR 381

Statutes

No statutes referred.

Hassan Kipkemboi Ngeny v Thabiti Finance Co

High Court, at Eldoret February 26, 1992

Walekhwa J

Civil Case No 172 of 1991

Injunction - application for temporary injunction-whether the Court can exercise discretion and grant such an injunction even when the applicant does not meet the four requirements governing such a relief.

The applicant moved to Court by way of chamber summons seeking a temporary injunction to restrain the defendants from selling suit premise until the case was heard. The indebtness of the applicant was not denied but it was his contention that he is paying the loan regularly and that the entire family relied on the suit land for their livelihood so much so that if it was sold, the entire family was going to suffer irreparable harm. The respondent stated that the applicant does not deny indebtedness but was employing delaying tactics in trying to deny the respondent the fruits of its judgement. It was the respondent’s further contention that the applicant was given a chance in 1988 to liquidated the debt, but he failed to do so.

Held:

1. From the record it is clear that the applicant’s indebtness is not denied and its further clear that instalments are not being paid and so the plaintiff’s chances of succeeding in the case are nill.

2. It is upon the applicant to try and save the suit premises from being held because it is true that he will suffer irreparable harm, but that should not be used as a case to deny the respondent the fruits of his judgement.

3. The amount claimed is large, but in view of the fact that no effort was made to liquidate the same, then no damages can arrive in such situation except where property may be sold for a lesser value than its market price.

4. Despite the fact that the applicant doesn’t fall within the principles governing the issuance of injunction the Court has the onus to exercise its discretion in the best interests.

Temporary injunction issued.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Machio for the Plaintiff/Applicant