[Ruling] Company Law-winding up-injunction-application that the petition and proceedings be restrained from advertising the Petition and proceedings on the Petition be stayed pending the hearing and final determination of the application-petitioner having sought to have the company wound up on the grounds that it was unable to pay its debts-whether a winding up petition was a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by a company-whether the applicant established a prima facie case

Simel & others v County Council of Narok

& others

High Court, at Nairobi April 11, 1994

Pall J

Miscellaneous Application No 361 of 1994

Judicial Review – application for judicial review – amendments to order LIII rules 1 and 2 of the Civil Procedure Rules – object of the amendments – nature of provisions under order LIII – legality of amendments to rule 1 and 2 of order LIII – whether leave of the court is a prerequisite to an application for judicial review – whether the Court can enlarge the six month limitation period to apply for judicial review – sections 8 and 9 of the Law Reform Act (cap 26)

Statutes – amendment of statutes – amendment by Rules Committee under section 81 of the Civil Procedure Act – where the amendments conflict with express provisions of the Law Reform Act – which law supercedes the other.

The applicants sought leave to apply for judicial review outside the period of six months within which the application ought to have been made. They relied on an amendment to order LIII rules (1) and (2) of the Civil Procedure Rules allowing the Court to enlarge the requisite six-month period and making it possible to apply for judicial review without leave of the court.

The applicants also relied on order XLIX rule 5 to urge the Court to extend the six months period . Rule 3A of the same order was also cited to reduce the period of computation of time when the six months would run.

In determining the matter, the Court contrasted the said amendments and authorities relied on by the applicants with the provisions of the Law Reform Act providing for the six months limitation period.

Held:

1. The object of deleting order LIII rules 1 and 2 of the Civil Procedure Rules and inserting new rules in their place was to provide that an application for judicial review could be brought without leave of the court.

2. The provisions of order LIII are the procedural rules of the court made

under section 9 of the Law Reform Act. Section 8(1) of that Act enjoined that the High Court in the exercise of its civil or criminal jurisdiction not to issue any order or prerogative writs of mandamus, prohibition or certiorari.

3. However, section 8(2) of the Law reform Act provided that the High Court shall have power to make a like order as the High Court in England which is empowered to make an order of mandamus, prohibition or certiorari by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act 1938 of the United Kingdom.

4. Under section 9(1) (b) of the Law Reform Act the Rules Committee set up under section 81 of the Civil Procedure Act is empowered to make rules of court requiring, inter alia, except in such cases as may be specified in the Rules, that leave shall be obtained before an application is made for any order for mandamus, prohibition or certiorari.

5. The amendment to order LIII had been declared by the High Court to be ultra vires the Law Reform Act section 9(1) and consequently, the original rule 1 of order LIII still stood and leave of the court was necessary before any application is made for an order of judicial review.

6. The Law Reform Act is an Act of Parliament which has in its wisdom laid down the absolute period of six months within which an application such as the present one may be made. It emphasizes that this six months period may be shortened which by implication means that it cannot be enlarged.

7. The present rule 2 of order LIII empowering the Court to extend the six month period is in direct conflict with section 9 of the Law Reform Act and is ultra vires that section of the Act. The rule cannot go outside the absolute period of six months laid down by the Act.

8. Rule 5 of order XLIX says in pare materia that where a limited time has been fixed for doing any act or taking any proceedings under the Civil Procedure Rules or by summary notice or by an order of the Court, the Court shall have power to enlarge time upon such terms (if any) as the justice of the case may require.

9. Under the English procedure, the Court may extend the time under order III rule 5 which corresponds with our order XLIX rule 5. However, the wording of section 9 (2) and (3) of the Law Reform Act is so strongly prohibitive that it cannot be disregarded and the Court cannot follow the English procedure.

10. The Court cannot invoke rule 5 of order XLIX to supersede the express provisions of the Law Reform Act. In this case, an absolute six month period has been laid down by the Act and the Court cannot enlarge that time by virtue of order XLIX rule 5.

11. Order XLIX rule 3A is a piece of delegated legislation. It cannot have the effect of amending express provisions of section 9(2) and (3) of the Law Reform Act. The said provisions of the Act can only be altered or amended by an Act of Parliament.

12. (Obiter) The duty of a Court is to expound what the law is and not what in view of social changes it should be. To change the law according to social dictates is the function of the Legislature.

Application dismissed.

Cases

Gideon Waweru Githunguri, Re an Application by [1962] EA 520

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XLIX rules 3A, 5; order LIII rules 1, 2

2. Law Reform Act (cap 26) sections 8(1)(2); 9(1)(b), (2) (3)

3. Administration of Justice (Miscellaneous Provisions) Act, 1938 [UK] section 7

4. Civil Procedure Act (cap 21) section 81

5. Civil Procedure Rules [UK] order 3 rule 5

6. Constitution of Kenya section 64(4)

Advocates

Mr Mwenesi for the Applicants

Mr Odero & Mrs Nganga for the Respondents

T W N v S N K

High Court, at Nairobi November 5, 1993

Pall J

Civil Case No 2133 of 1992

Family law – husband and wife – matrimonial property – property acquired during marriage registered in the name of one spouse – applicant/wife seeking declaration that the property had been acquired by the joint efforts of both her and her husband – whether the applicant had contributed to the acquisition of the property – whether the applicant had made out a prima facie case for an injunction to restrain her husband from disposing the property – applicant having obtained an order of maintenance in separate proceedings - Married Women’s Property Act, 1882 section 17.

The applicant/wife took out an originating summons against the respondent/husband under the English Married Women’s Property Act, 1882 seeking a declaration that certain properties which she enumerated in her supporting affidavit had been acquired by the joint funds and efforts of herself and her husband during their marriage even though they were registered in the name of her husband.

The applicant also sought an injunction to restrain her husband from disposing the property and for orders that the husband should release a certain motor vehicle to her for her own use and that she should collect the rent from certain properties pending the determination of the proceedings.

Held:

1. The special nature of the relationship between a husband and wife gives rise to difficulties of proof when a marriage breaks down and the questions of ownership of property have to be decided. It is not to be expected that the transaction between them when they are happily married will be evidenced in the same way as ordinary commercial transactions.

2. In determining proprietary interests, the Court will therefore have regard to both direct as well as indirect contributions. For example, a wife who has helped her husband regularly and continuously in a business and has received no wages will be entitled to a share in the property acquired with the proceeds of the business.

3. In this case, there was evidence that all the properties owned by the respondent were acquired during wedlock. There was prima facie evidence that the applicant was more than a mere housewife. She had been contributing to the welfare of the family at first by farming and later in business.

4. So far as her prayer for an injunction was concerned, the applicant had a prima facie case with a probability of success that she had contributed to the acquisition of the properties owned by the respondent. It was only fair that the status quo should be maintained.

5. The other prayers sought by the applicant were in the nature of allowance by the husband for the interim maintenance of the applicant while the litigation was pending. As the applicant had obtained an order for her maintenance in separate proceedings for judicial separation, granting the applicant’s prayers would be tantamount to varying the maintenance order.

Prayer for injunction granted, other prayers dismissed.

Cases

1. Karanja v Karanja [1976-80] 1 KLR 389

2. Kivuitu v Kivuitu [1991] KLR 248

3. Razelos v Razelos (No 2) [1970] 1 All ER 386

Texts

Hailsham, Lord et al, (Eds) (1997) Halsburys’ Laws of England ; London: Butterworths & Co 4th Edn Vol XXII p 639 paras 1030, 1040

Statutes

Married Women’s Property Act, 1982 [UK] section 17

Republic v Attorney General ex Parte Kariuki

High Court, at Nairobi November 26, 1992

Aluoch & Pall JJ

Miscellaneous Civil Case No 88 of 1991

Judicial Review - certiorari and mandamus - where a person alleges that his rights to natural justice have been breached – whether a person aggrieved by the refusal of the Attorney General to admit a foreign Advocate has locus standi to apply for judicial review.

Judicial Review – natural justice – whether the Attorney General can depart from the principles of Natural Justice in exercise of his discretion under s 11 (1) of the Advocates Act- whether the Attorney General should give reasons for exercise of his discretion.

Judicial Review – mandamus – to compel the Attorney General to admit a foreign advocate – whether the court can usurp the authority of the Attorney General to admit a foreign advocate.

Advocate – right to representation – foreign advocates – where a foreign advocate is admitted under section 11 (1) of the Advocates Act – whether a foreign advocate is covered within the definition of a legal representative under section 86 of their Constitution.

The applicant applied for an order of certiorari to remove into the High Court and quash the decision of the Attorney General of Kenya denying the applicant permission to bring a foreign advocate to appear for him in a treason case, and an order of mandamus to compel the Attorney General to complete his legal obligations under section 11 of the Advocates Act and grant permission for a foreign advocate to be admitted to lead the defence in the criminal case.

It was submitted for the defence that the refusal of the Attorney General was in breach of the rules of natural justice and the refusal was unreasonable, oppressive and as such null and void. The respondent argued that the applicant did not have a right which had been infringed on, the Attorney General had an absolute discretion to admit foreign advocates to practice as advocate.

Held:

1. The applicant has a right, the right or interest to require the Attorney General to exercise his discretion properly and according to law to determine whether or not to admit a foreign advocate to practice as an advocate in Kenya under s 11 (1) of the Advocates Act. If the foreign advocate is admitted under s 11 (1) of the Advocates Act, he becomes entitled to practice as an advocate in Kenya for the purpose of defending the applicant. Thus he is covered within the definition of a legal representative under section 86 of the Constitution.

2. A person aggrieved by the refusal of the Attorney General to admit a foreign advocate under s 11 (1) of the Act. The applicant has locus standi to apply for judicial review of the refusal.

3. It is not within the power of the Act to depart from the principles of natural justice when the discretion is being exercised by the Attorney General under section 11 (1) of the Advocates Act.

4. It is tantamount to arbitrary exercise of the discretion on the part of the Attorney General to exercise his discretion without giving any reason, owing to the severity of the offence and the complexity of issues involved, the Attorney General should have given his reason for the refusal.

5. As the Attorney General is the only person according to the Act who can admit a foreign advocate under section 11 (1) to practice as an advocate the Court cannot usurp his authority and cannot admit a foreign advocate.

Application allowed.

Cases

1. Onyango v Attorney General [1987] KLR 711

2. Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255; [1976] 2 All ER 865

3. Attorney General v Ryan [1980] AC 718

4. Council of Civil Service Unions and others v Minister for Civil Service [1984] 3 All ER 935; [1984] 3 WLR 1174; [1985] AC 374

5. Shah v Attorney General [1970] EA 543

6. Republic v Moss (1982) 29 SASR 385

7. Queen v City of Whyalla exparte Kittel & Others (1979) 20 SASR 386

8. Attorney-General v Bastow [1957] 1 All ER 497; [1957] 2 WLR 340; [1957] I QB 514

9. Nehemia Gotonga (Chief) v Stephen Kinyanjui [1959] EA 1076

10. Franklin v Minister of Town and Country Planning [1947] 2 All ER 289; [1948] AC 87

11. Wednesbury Corporation & 2 others v Ministry of Housing and Local Government [1966] 2QB 275

12. Armah v Government of Ghana [1968] AC 192

13. Mwau v Principal Immigration Officer [1985] KLR 72

Texts

1.De Smith, SA et al (Eds) (1968) Judicial Review of Administritive Action London: Sweet & Maxwell 2nd Edn

2. Hailsham, Lord, et al,(Eds) (1975) Halsbury’s Laws of England London: Butterworths & Co Ltd 4th Edn Vol 1 para 76

Statutes

1. Advocates Act (cap 16) sections 10, 11

2. Penal Code (cap 63) section 40

3. Constitution of Kenya sections 77(1), (2); 86

4. Fugitive Offenders Act, 1881 [UK]

Advocates

Ms Martha Njoka for the Applicant

Mr Ole Keiwua for the Attorney General

[Ruling] BANKRUPTCY LAW public examination application by official receiver to have a public examination of the debtor where the debtor had already been adjudicated effect of purpose of a public examination whether the court can discharge a debtor without first allowing for a public examination to be carried out - Bankruptcy Act section 29(1) (a); Bankruptcy Rules rule 159(1)

[RULING] Bankruptcy Law-bankruptcy notice-where the debtor applies under Section 4 of the Bankruptcy Act (cap.53) and rule 15 of the Bankruptcy rules for the bankruptcy notice issued by the court at the request of the respondent to be set aside-where the applicant seeks such orders on the ground that he will secure the judgment debt by providing a charge in favour of the creditor-where the creditor does not accept the debtors proposal-whether the circumstances of the present application fall within the reasons for setting aside a bankruptcy notice set out in rule 100(2) of the Bankruptcy Rules-

Company Law-company-suing and being sued-person who has powers to bring or defend any action or proceeding on behalf of a company against which a winding up order has been made-where advocate not appointed by official receiver of a company against which a winding up order had been made brought application to court on behalf of the company-validity of application-Companies Act (cap 486) sections 228, 241 (1) (a), 241 (1) (c).

[Ruling] Company Law winding up cause-company going into receivership- ground that it is just  and equitable that the Company be wound up-power of the court to appoint the Official Receiver to be the provisional liquidator at any time after the presentment of a winding up petition and before the making of a winding up order-injunction against receiver appointed on the grounds that he is conducting the matter in a manner detrimental to the applicant-effect of-whether the applicant made out a prima facie case that the affairs of the Company were being conducted in a manner oppressive to him-Companies Act Section 211