Kihungi v Kihungi

Court of Appeal, at Nakuru

September 28, 1989

Nyarangi JA

Civil Application No 136 of 1989

(In an intended appeal from the judgment of the High Court at Nakuru, Tunoi J dated 25th January 1988 in Civil Suit No 90 of 1986)

Civil Practice and Procedure - extension of time - time to file appeal - case involving a land dispute - courts’ inclination to allow appeals in such matters.

Land Law - land disputes – appeals in such disputes – court generally inclined to allow extension of time to file appeal.

The applicant sought extension of time to file a notice of appeal out of time. The parties to the case were co-wives and the dispute concerned family land.

The applicant contended in the affidavit in support of the application that she instructed her advocate to lodge a notice of appeal within the prescribed time by the Court of Appeal Rules but the advocate did not do so.

Held:

1. It has become a basic concept of land disputes that unless there has been such delay as would make it clearly unreasonable and unjust to reopen the matter, an intending appellant should be allowed to institute an appeal.

2. When it is family land, the added advantage is that upon determination by the court peace and harmony in the family affected is restored.

3. It seemed unlikely that the respondent and her children would be denied justice. In the circumstances, the only matter for consideration was whether the delay in bringing the notice of motion was inordinate, inexcusable and unexplained.

4. The delay was not inordinate and this court accepted the explanation for the delay.

Application allowed.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 22(1), 54(1)(c), 76, 81

Advocates

Appellant unrepresented.

Mr Kagucia for the Respondent.

Aloyce Mariera v Kenya Bus Services (Msa) Ltd

Court of Appeal, at Mombasa April 30, 1987

Miller CJ, Nyarangi & Platt JJ A

Civil Appeal No 92 of 1986

(Appeal from the High Court at Mombasa, Bhandari J)

Appeal - jurisdiction – to consider evidence – appreciation and evaluation of evidence – jurisdiction of court of appeal to reconsider and reach its own conclusions on evidence adduced at trial court – principles upon which the appellate court may proceed.

Employment – wrongful dismissal – damages for wrongful dismissal – justification for dismissal – Employment Act (cap 226) section 14 (1) – whether party relying on a statute needs to plead the provision specifically – whether one can rely on a statutory provision which is not pleaded.

Civil Practice and Procedure – pleadings - matters that must be pleaded – whether statutory provisions must be pleaded - failure to plead contract upon which the statutory provisions apply – reliance on documents not pleaded and statutory provisions – Civil Procedure Rules Order VI Rules 3(1) and (2).

Evidence- evaluation of – by trial judge – duty of court to consider all relevant evidence – failure to take evidence into account – consequences thereof.

The appellant instituted a suit in the High Court against the respondent for wrongful dismissal from employment. The High Court dismissed the claim with costs. The appeal was on two main grounds, namely the trial court admitted irrelevant evidence and secondly that the judge erred in not allowing the appellant to produce the employment contract and documents so as to prove that he lost by the wrongful dismissal.

Held:

1. In first appeals from a trial the Court of Appeal must reconsider the evidence, evaluate it and make its own conclusion, bearing in mind that it has neither seen nor heard the witnesses and appropriately allowing for that. However if the trial court failed on some relevant point to consider some particular circumstances, the court would not feel bound to accept the judge’s findings of fact.

2. Where a party seeks to rely on relevant statutory provisions, the same need not be pleaded. The provisions of the Employment Act that the employees sought to rely on were statutory provisions that applied to the contract. The fact that the contract was not pleaded was irrelevant.

Dissenting opinion of Platt JA:

1. An employer in defence of an action for wrongful dismissal may rely on a different fact from that relied on at the time of dismissal, provided that the good ground existed infact, it is immaterial whether or not it was known to the employer at the time of the dismissal.

2. It is necessary for a party to plead the terms of contract fully. The Civil Procedure Rules Order VI Rule 3(1) and (2) requires the substance of a document to be relied on to be set out and pleaded.

Appeal allowed.

Cases

1. Selle and another v Associated Motor Boat Co Ltd [1968] EA 123

2. Peters v Sunday Post Limited [1958] EA 424

3. Ombanya v Gailey & Roberts Ltd [1974] EA 552

4. Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339

5. Baillie v Kell (1838) 4 Bing NC 638

Texts

1. Hailsham Lord et al. (Eds) (1976) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XVI para 647

2. Batt, FR (1967) Law of Master and Servant London: Pitman 4th Edn p76

Statutes

1. Employment Act (cap 226) sections 5(3),14,14(1),14(6),17(g)

2. Penal Code (cap 63) section 330

3. Civil Procedure Rules (cap 21 Sub leg) order VI rules 3(1),3(2); order VII rule 6

Advocates

Mr Juma for the Appellant

Mr Satchu for the Respondent

Mairi v Ngonyoro “B” & another

Court of Appeal, at Nairobi November 18, 1986

Nyarangi, Platt & Gachuhi JJA

Civil Appeal No 117 of 1984

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

Arbitration – reference to arbitration by court order – contents of order - whether order should contain all or some matters in dispute – whether proper for a court to omit some matters in dispute to arbitration – meaning of “any matter” in reference to arbitration - Civil Procedure Rules order XLV.

Arbitration – filing of arbitration award out of time – failure to seek extension of time - effect of – Civil Procedure Rules order XLV rule 8.

The High Court dismissed an application by the appellant in which he had sought orders that an arbitrator’s award filed in the court be set aside and that the suit be fixed for hearing in the normal way. The main issue in the appellant’s appeal against that decision was whether the consent order by which the High Court referred the dispute to arbitration on three stated issues complied with order XLV rule 1 of the Civil Procedure Rules.

Held:

1. The term “any matter in difference between the parties to a suit” in rule 1 of Order XLV of the Civil Procedure Rules refers to all disputed matters in the pleadings. Therefore, an application to the court for an order of reference and the order of reference to arbitration should encompass all the matters in dispute and not only issues stated by the consent order.

2. To restrict a reference to arbitration by selecting a number of issues and thereby omitting or running the risk of omitting some matters in difference amounts to non-compliance with rule 3(1) of Order XLV.

3. After a reference to arbitration by an order of the court, the court could not hear the matter or any part thereof during the currency or pendency of arbitration.

4. As the arbitration award had been filed out of time and nothing had been done under Order XLV rule 8 to extend the time for the making of the award, the award filed was a nullity.

Appeal allowed.

Cases

1. Nyangau v Nyakwara [1986] KLR 712; (1982-88) 1 KAR 805

2. Cleophas Wasike v Mucha Swala Civil Appeal No 6 of 1983; [1984] KLR 591

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XLV rules 1; 3(1), (2); 5(1),(2); 7(1). (2); 8(1), (2); 11; 12; 13; 14; 15; 17

Dominic Karanja v Republic

Court of Appeal, at Nairobi October 24, 1986

Nyarangi, Platt & Gachuhi JJA

Criminal Application No NAI 14 of 1986

(Application for bail pending appeal in an intended appeal from a conviction and sentence of the High Court at Nairobi)

Bail - bail pending appeal – application for - issues the courts will consider in such application – whether intended appeal having overwhelming chances of success – whether applicant’s good character, ill health and family hardship are exceptional circumstances.

The appellant was convicted of the offence of obtaining by false pretences and sentenced to 2 years’ imprisonment. His first appeal to the High Court was summarily rejected and he applied to the Court of Appeal to be released on bail pending the hearing of his appeal against the decision of the High Court.

He stated that his appeal had overwhelming chances of success, that if his appeal succeeded he would have served a substantial part of the sentence, that he was of good character and in poor health and that his family was facing hardship.

Held:

1. The most important issue was that if the appeal had such overwhelming chances of success, there was no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.

2.The previous good character of the applicant and the hardships, if any, facing his family were not exceptional or unusual factors. Ill health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners.

3. A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal.

4. Upon considering the relevant material in this case, there was no overwhelming chance of the appeal being successful.

Application refused.

Cases

Somo v Republic [1972] EA 476

Statutes

1. Penal Code (cap 63) section 313

2. Criminal Procedure Code (cap 75) section 352(2)

Advocates

Mr Gathaara for the Respondent

Kilo v Omar & another

Court of Appeal, at Mombasa October 21, 1986

Hancox, Nyarangi and Platt JJA

Civil Appeal No 49 of 1984

(Appeal from the High Court at Mombasa, Bhandari J)

Damages – general damages – for pain, suffering and loss of amenities – assessment of – when award for damages may be set aside - fracture of right upper arm, dislocation of right elbow – loss of movement and gripping power in arm – quantum of damages.

Damages – mitigation of damages – party on whom burden of proving mitigation rests – refusal by claimant to undergo surgery – whether such refusal constitutes failure to mitigate damages.

The appellant, who was a passenger in a motor vehicle owned by the second respondent and driven by the first respondent, was injured when the vehicle was involved in an accident. He suffered a fracture and dislocation of the right upper arm and elbow respectively which led to reduced arm movement and loss of gripping power. The injuries apparently worsened after the appellant failed to undergo a surgical operation.

The appellant, who was right-handed, 50 years old and due for retirement in another five years, remained employed after the accident. In his suit against the respondents for general damages, he was awarded Shs 30,000 as general damages for pain, suffering and loss of amenities. The appellant appealed contending that the award was so low as to be erroneous.

Held:

1. Before an award for general damages can be set aside, it must be shown that there was an error in assessing the award and it is not sufficient merely to show that the court would have made a somewhat higher award.

2. The burden of proof of damages is upon the plaintiff but if a defendant seeks to show that the plaintiff ought to have mitigated his loss, the burden may pass to the defendant and the normal measure of damages will not be cut down unless the defendant succeeds in showing that the plaintiff ought reasonably to have taken mitigating steps.

3. The refusal by a physically injured plaintiff to undergo a dangerous and risky surgical operation does not constitute a failure to mitigate damages but where the operation cannot be regarded by reasonable men to be a risky one, then a refusal to allow it would constitute such failure. There was no evidence to show that the plaintiff had taken the wrong decision in not having the surgical operation.

4. The court had not considered the appellant’s likely pain and suffering froms a future surgical operation.

5. The award for general damages was too low and would be reassessed at Shs 80,000.

Appeal allowed.

Cases

1. Ilanga (Henry Hidaya) v Manyoka (Manyema) [1961] EA 705 at P 713

2. Mcauley v London Transport Executive [1957] 2 Lloyds Rep 500

3. Steele v George (Robert) & Co Ltd [1942] AC 497; 1 All ER 447

4. Richardson v Redpath, Brown & Co Ltd [1944] AC 62; 1 All ER 110

5. Marcroft v Scruttons [1954] 2 Lloyds Rep 395

Texts

McGregor, H. McGregor on Damages London: Sweet & Maxwell 17^th Edn p 825

Statutes

No statutes referred.

Advocates

Mr Jiwaji for the Appellant

Mr Ghalia for the Respondent