Ali v Gethinji

High Court, at Nairobi June 30, 1980

Simpson, Platt & Trainor JJ

Election Petition No 18 of 1979

Election Petition – qualification for election - to National Assembly –proficiency in English and Kiswahili languages – section 34 of the Constitution – language tests under the Presidential and Parliamentary Elections Regulation – failure of election candidate to attend language board test – absence of certificate of proficiency issued by language board - effect of – whether such candidate qualified to be elected – whether Second Schedule to Parliamentary and Presidential Elections Regulations ultra vires the Constitution.

Criminal law – election offence – meaning of – election candidate procuring person to impersonate him in language test prescribed under Parliamentary and Presidential Elections Regulations – whether candidate’s act an election offence.

The two petitioners and the second respondent were among the rival candidates for the Garissa South Parliamentary Constituency preliminary election and the first respondent was the area’s District Commissioner and also the Returning Officer for the election, which was won by the second respondent. The petitioners filed a petition alleging that the election had not been conducted in accordance with the law and sought a declaration that it was null and void. In their main ground, they alleged that the second respondent was not proficient in the English and Swahili languages as envisaged under section 34 of the Constitution in a manner qualifying him for election and evidence was adduced in support of this ground. It was submitted that no certificate of competency had been issued to him by a Language Board set up under the Second Schedule to the Presidential and Parliamentary Elections Regulations and if any, then it had been issued by means of fraud or personation. Among the issues raised in the defence of the second appellant, who chose not to give evidence in rebuttal of the allegations made against him, was that the Second Schedule was ultra vires the Constitution.

Held:

1. The Second Schedule to the Presidential and Parliamentary Elections Regulations and Regulation 4 of those regulations were not ultra vires the Constitution as section 32 of the Constitution which provided for the election of members of the National Assembly in a manner prescribed by or under any law was wide enough to cover, for its purposes, the provision of a method of determining a candidate’s proficiency in the Kiswahili and English languages.

2. The language tests prescribed in the Second Schedule to the Presidential and Parliamentary Elections Regulations, where applicable, were part of the nomination process of a candidate to the National Assembly within section 34(d) of the Constitution.

3. The second respondent was not exempted from the language test and there was clear and unequivocal proof that he had not taken the test but had instead procured another person to take it in his place.

4. The second respondent was not a person qualified to be elected as a member of the National Assembly in that not being exempted from language tests in English and Kiswahili, he failed to present himself to be tested by a language board, that he was not in possession of a certificate of proficiency issued by such board and that he was not able to speak and to read the Kiswahili and English languages well enough to take an active part in the proceedings of the National Assembly.

5. The second respondent was neither validly nominated nor validly elected as a Member of the National Assembly.

6. Qualification for election is a condition precedent for election and section 28 of the National Assembly and Presidential Elections Act (cap 7) was inapplicable in this case.

7. The act of the second respondent in procuring an unknown person to impersonate him did not constitute an election offence as defined in section 2 of the National Assembly and Presidential Elections Act (cap 7).

8. (Obiter) “We feel we cannot leave this petition without suggesting that provision be made to enable a presiding officer to record whether or not a complaint had been made during the day in any way affecting his conduct or the conduct of any of his officers and that the candidates and their agents be afforded an opportunity to sign such a record or to give the presiding officer a note of such complaints as they wish to have put on record. Such a provision might we think tend to reduce the number of complaints appearing in election petition[s]”.

Petition granted.

Cases

1. Lichfield Case (1869) O’M & H 22 at p 28

2. Mohamed Noor Hussein v Mohamed Sheikh Ali Election Petition No 15 of 1970 (unreported)

3. Eliab Karanja v JM Kihanyo and Stephen Kiragu Election Petition No 37 of 1974 (unreported)

Texts

Hailsham, Lord et al. (Eds) Halsbury’s Laws of England, London: Butterworths 4th Edn Vol XV

Statutes

1. Constitution of Kenya section 34, 34(d)

2. National Assembly and Presidential Elections Act (cap 7) sections 2, 28

3. Presidential and Parliamentary Elections Regulations (cap 7 Sub Leg) regulations 15(2), 17, 18, 18(1); 18(2); 29; First Schedule; Forms  Nos 9, 10; Second Schedule

4. National Assembly Elections (Election Petition) Rules (cap 7 Sub Leg) rules 4, 5

Advocates

Messrs S Gautama & O Kapila for Petitioners

Mr Shields & Mrs Onyango for 1st Respondent

Messrs AR Kapila & S Kapila for the 2nd Respondent

Esther Nkudate v Touring & Sporting Cars Ltd & another

High Court, Nairobi

24th August 1978; 8th May, 8th June 1979

Platt J

Civil Case No 1933 of 1978

Negligence - contributory negligence – child - test whether child guilty of contributory negligence .

Damages – loss of expectation of life - conventional sum – whether increased to allow for inflation.

In deciding whether a person is too young to be guilty of contributory negligence, the determining factor is whether that person is mature enough to be able to take precautions for his or her own safety, and the question should not be resolved arbitrarily by reference to a specific age.

The Attorney–General v Vinod [1971] EA 147 followed.

Dictum of Madan JA in Bashir Ahmed Butt v Uwais Ahmed Cahan (unreported) doubted.

The conventional sum awarded as damages for the loss of expectation of life should not be increased strictly by reference to inflation. The appropriate sum in Kenya is K£850 and a lower figure should be added in the case of the death of a child.

Dictum of Lord Denning MR in Lim Poh Choo v Camden and Islington Area Health Authority [1978] 3 WLR 895, 909, considered.

Action

Esther Nkudate, the mother of Tipanko Nkudate (the deceased), instituted proceedings in the High Court (Civil Case No 1933 of 1978) to recover damages for the estate of the deceased against the owner and driver of a car (Touring & Sports Cars Ltd and Ian Davis McRae, respectively) involved in the accident in which the deceased lost his life. The facts are set out in judgment of Platt J.

Cases referred to in judgment:

1. Attorney–General, The v Vinod [1971] EA 147, EACA.
2. Bashir Ahmed Butt v Uwais Ahmed Cahan (unreported), Civil Appeal No 40 of 1977, CA.
3. Benham v Gambling [1941] AC 157, [1941]1 All ER 7, HL.
4. Gough v Thorne [1966] 1 WLR 1387, [1966]3 All ER 398, CA.
5. Lim Poh Choo v Camden and Islington Area Health Authority [1979] QB 196,[1978]895 [1979]1 All ER 332, CA; on appeal, [1980] AC 174, [1979] 3WLR 44, [1979] 2 All ER 910, HL.

LK Gitau for the Plaintiff

BJ Hawkes for the Defendants.

Cur adv vult.

Ramanbhai Fulabhai Patel, Muljibhai Somabhai Patel and Raojibhai Fulabhai Patel v General Equipment Corporation Ltd

High Court, Nairobi 6th April , 31st May 1979

Platt & Scriven JJ

Civil Appeal No 162 of 1977

Landlord and tenant - controlled tenancy – duration – not exceeding five years - demise for five years with option to renew - option not operating as extension of original term – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2(1)(b).

The landlords granted the tenant a lease of premises to which the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act applied. The lease was for five years, but expressly provided for the right of the tenant to give notice of its “desire to extend the term” whereupon the landlords would “grant… a further lease”. The tenant, in due course, exercised the option; and before the expiration of the further period the landlords gave notice for the termination of the lease at the end of that period. The tenant maintained that the tenancy being for a period not exceeding five years was a controlled tenancy within the Act (see section 2(1)(b) and could, therefore, be terminated only in accordance with the relevant statutory provisions. The landlords, however, claimed that ab initio they had divested themselves of the premises for a term in excess of five years by reason of the original demise for five years to which the period granted under the irrevocable option clause must be added.

Held:

That on the exercise of the option clause the tenant was granted a fresh lease and (although the position might have been different had the option clause operated to extend the original term) the proper approach for the Court was to look at the term of the demise in the original lease in order to determine whether it was for a period not exceeding five years; accordingly, the original demise being for five years the tenancy was a controlled tenancy within the Act.

Rex Hotels Ltd v Jubilee Insurance Co Ltd [1972] EA 211 distinguished.

Appeal

Ramanbhai Fulabhai Patel, Muljibhai Somabhai Patel and Raojibhai Fulabhai Patel (the landlords) appealed to the High Court (Civil Appeal No 162 of 1977) against a decision for a Business Premises Rent Tribunal on 10th November 1977 which has ruled that a tenancy granted by the Landlords to the General Equipment Corporation Ltd (the tenant) was a controlled tenancy within the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The facts are set out in the judgment of Platt J.

Cases referred to in the judgments:

1. Baker v Merckel [1960] 1 QB 657, [1960] 2 WLR 492, [1960] 1 All ER 668, CA.
2. Beesley v Hallwood Estates Ltd [1961] Ch 105, [1961] 2 WLR 36, [1960] 2 All ER 314, CA.
3. Gardner v Blaxill [1960] 1 WLR 752, [1960] 2 All ER 457.
4. Griffith v Pelton [1958] Ch 205, [1957] 3 WLR 522, [1957] 3 All ER 75, CA.
5. Habib Punja v Agas [1968] EA 160.
6. Jenkin R Lewis & Son Ltd v Kerman [1971] Ch 477, [1970] 3 WLR 673, [1970]3 All 414, CA.
7. Rex Hotel Ltd v Jubilee Insurance Co Ltd [1972] EA 211 EACA.
8. Savile Settled Estates, Re, Savile v Savile [1931] 2 Ch 210, 100 LJ Ch 274, 145 LT 17.
9. Stromdale & Ball Ltd v Bruden [1952] Ch 223, [1952] 1 All ER 59.

Satish Gautama for the Landlords.

PK Muite for the Tenant.

Cur adv vult.

Nairobi Housing Development Ltd v Highridge Corner Bar Ltd

High Court, Nairobi

23rd March 1979

Platt & Scriven JJ

Civil Appeal No 110 of 1978

Rent Tribunal – Business Premises Rent Tribunal – reference to tribunal – jurisdiction – jurisdiction not ousted by allegation of illegality.

When a landlord serves a notice to quit under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act on his tenant and also on a sub-tenant whom he describes as an “unlawful sub-tenant”, the named sub-tenant is entitled to refer the matter to the Business Premises Rent Tribunal and the tribunal’s jurisdiction is not ousted by the mere allegation of illegality made by the landlord

Heptulla Bros Ltd v Thakore [1956] 1 WLR 289, R v Croydon and South West London Rent Tribunal, ex parte Ryzewska [1977] QB 876 and Gurnam Singh v Jagat Singh & Sons Ltd (unreported) applied.

Appeal

Nairobi Housing Development Ltd (the landlord) appealed (Civil Appeal No 110 of 1978) from a decision of a Business Premises Rent Tribunal in which the tribunal had enquired into its own jurisdiction and ruled in favour of Highridge Corner Bar Ltd (the sub-tenant). The facts are set out in the judgment.

Cases referred to in the judgments:

1. Gurnam Singh v Jagat Singh & Sons Ltd unreported (Civil Appeal No 29 of 1977), CA.
2. Heptulla Bros Ltd v Thakore [1956] 1 WLT 289, PC.
3. R v Commissioner for the special purposes of the Income Tax (1888) 21 QBD 313, [1886-90] All ER Rep 1139, CA.
4. R v Croydon and South West London Rent Tribunal, ex parte Ryzewska [1977] QB 876, [1977] 2 WLR 389,[1977] 1 All ER 312.

Mr Khanna for the Landlord.

Mr Rayani for the Sub-tenant.

Ndungu Mwaura v The Republic

High Court, Appellate Side, Nairobi 28th September 1976

Kneller & Platt JJ

Traffic - notice of intended prosecution - when notice necessary – causing death by reckless driving - Traffic Act (cap 403), section 50.

So far as established authority requires notice of intended prosecution to be given in accordance with section 50 of the Traffic Act in respect of a charge of causing death by reckless driving (section 46), a notice properly given in respect of a charge of reckless driving (section 47) will suffice.

Milner v Allen [1933] 1 KB 698, DC applied.

Greene v The Republic [1970] EA 62, EACA, considered.

Quare:

Whether the Court of Appeal for East Africa in reaching its decision in Greene v The Republic [1970] EA 62 considered if a notice of intended prosecution in respect of a charge of causing death by reckless driving was required by law.

Cases referred to in judgment:

Greene v The Republic [1970] EA 62, HC and EACA.

Milner v Allen [1933] 1 KB 698; [1933] All ER Rep 734, DC.

Appeal

Ndungu Mwaura appealed to the High Court (Criminal Appeal 343 of 1976) against his conviction and sentence by the Senior Resident Magistrate’s Court (VV Patel Esq) at Thika for causing death by dangerous driving, contrary to section 46 of the Traffic Act. He was disqualified for holding or obtaining a driving licence for three years and was sentenced to imprisonment for eighteen months. The case is reported only in relation to the appellant’s fourth ground of appeal in which he questioned the validity of the notice of intended prosectuion. The facts are set out in the judgment of the court.

GK Mwihia for the Appellant.

W Mbaya, Senior State Counsel, for the Republic.

John Mwangi Macharia & another v The Republic

High Court, Appellate Side, Nairobi 15th September 1976

Kneller & Platt JJ

Criminal law – evidence – witness – witness under age of fourteen years – examination as to competence as witness, etc – examination before evidence given.

Criminal law – evidence – sworn statement by defendant – statement differing in material respect from prosecution case – duty of prosecutor and Court

Although a magistrate should hold an examination of a potential witness under the age of fourteen years to see whether he or she is competent to give evidence and whether he or she should be sworn or should make an affirmation before the witness is allowed to give evidence, a finding on these points after the witness has given evidence is not No cases were referred to in the judgments necessarily a ground for quashing the conviction of the defendant in the proceedings.

lf a defendant elects to make a statement on oath and this differs in a material respect from the case for the prosecution, the prosecutor should cross-examine the defendant on his statement and, if the prosecutor does not cross-examine the defendant in such circumstances, the Court should invite the prosecutor to do so. The failure to cross-examine in these circumstances, however, is not necessarily fatal to the conviction.

No cases cited in the judgment.

Appeals

The appeals of John Mwangi Macharia (Criminal Appeal No 330 of 1976) and James Ikuza (Criminal Appeal No 340 of 1976) against conviction and sentence before the Resident Magistrate’s Court (ML Wanniappa Esq) in Criminal Case No 562 of 1976 were consolidated and heard together. The facts are set out in the judgment of the court.

The appellants did not appear and were not represented.

CM Githinji State Counsel for the Republic.

Bennalt Oinamo v The Republic

High Court, Appellate Side, Nairobi 22nd June 1976

Platt & Sachdeva JJ

Criminal law - charge - separate counts - obtaining credit by false pretences - obtaining credit by other fraud - desirability of charging conduct in separate counts - Penal Code (cap 63), section 316(a)

If the prosecution is in doubt whether the defendant’s conduct properly constitutes obtaining credit by false pretences or obtaining credit by other fraud within the meaning of section 316(a) of the Penal Code, the accused should be charged in separate counts on the charge with (i) obtaining credit by false pretences, and (ii) obtaining credit by other fraud.

R v Holmes [1958] Crim LR 394 applied.

R v Perry (1945) 31 Cr App Rep 16 not followed.

Cases referred to in judgment:

Fisher v Raven [1964] AC at 221, [1963] 2 WL 1146; [1963] 2 All ER 389, HL.

R v Dent [1955] 2 All ER 806; 39 Cr App Rep 131, CCA.

R v Holmes [1958] Crim LR 394.

R v Jones [1898] 1 QB 119; 67 LJQB 41; 77 LT 503, CCR.

R v Perry (1945) 31 Cr App Rep 16; 174 LT 178, CCA.

R v Wyatt [1904] 1 KB 188; 73 LJKB 15, CCR.

Appeal

Bennalt Oinamo appealed to the High Court (Criminal Appeal No 126 of 1976) against his conviction of unlawfully obtaining credit by false pretences. The facts are set out in the judgment of the court.

The appellant was not present and was not represented.

W Mbaya, Senior State Counsel for the Republic.

Cur adv vult.