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