[Ruling] whether the interest deposited with HFCK that has accrued should be paid to the Petitioner-application that an arithmetic mistake in the courts assessment of the Petitioners share of the goodwill of RAP be corrected-application opposed-whether there was a mistake which needed correcting-whether the court had the jurisdiction to correct any mistakes

Penina Anzaye v Nairobi Delux Services

High Court, at Nairobi April 29, 1993

Akiwumi J

Civil Case No 3066 of 1986

Civil Practice and Procedure – review and setting aside of orders – where a trial judge is misled by advocates into making certain orders – whether the judge has unfettered discretion to review such orders – Civil Procedure Act, (cap 21) sections 3A, 80, Civil Procedure Rules (cap 21 Sub Leg) order 1; section 3A of Civil Procedure Act.

The plaintiff in this case brought an action against defendant arising out of motor accident which caused the death of the plaintiff’s husband.

The Court sanctioned and approved terms of settlement of the claim of the applicant and her children, which provided for payment of sum of Kshs 219,120. Kshs 154,000 was to be paid to the Inter Africa Credit Finance Ltd for the benefit of minor children, while the rest were to go to applicant and her adult son and daughter. The advocates for the applicant, (first advocates) later wrote to advocates of respondent (2nd advocate) for the release of the money whereof the 2nd advocates wrote two cheques. The first advocates returned and the 2nd advocates wrote one cheque and paid it in Court. It later transpired that the 1st advocates, did not want to comply with settlement order, but apply the money for their personal use. This application was then brought urging the Court to set aside and review its earlier orders.

Held:

1. There is no rule which limited the time within which an application like that may be made.

2. The first advocates and second advocates deliberately, wrongfully or unprofessionally dealt with each other when they knew that that should not have happened.

3. Section 80 of the Civil Procedure Act cap 21, gave the Court unfettered discretion to review its orders.

4. A special duty was imposed on the Court, as per the provisions of order 31 rule 7 of the Civil Procedure Act, to ensure that whatever settlement or compromise was proposed, it was having regard to all the known surrounding circumstances at the time, a settlement or compromise that was most beneficial to the minors concerned.

Application succeeds with costs to the applicant.

Cases

Kimita v Wakibiru [1985] KLR 317; [1982-88] 1 KAR 977

Statutes

1. Law Reform Act (cap 26)

2. Fatal Accidents Act (cap 32)

3. Civil Procedure Act (cap 21) sections 3A; 6; 80

4. Civil Procedure Rules (cap 21 Sub Leg) order XXXI rule 7; order XLIV rule 1

Advocates

Formally, Simiyu Wetangula & Co Advocates, later M/s Pandya & Talat Advocates for the Plaintiff/Applicants

Mr Siagi for the Respondents

Charles Kagai Mwihia & another v Ndolo Ayah & another

High Court, at Nairobi December 11, 1992

Akiwumi J

Civil Case No 6287 of 1992

Constitutional Law-fundamental rights and freedoms-procedure to be followed to invoke the High Court’s jurisdiction where there is an allegation of violation - where there is a procedure for redress of any particular grievance by the Constitution-whether a party can invoke order LIII of the Civil Procedure Rules.

Election Petition - presidential elections - disqualification from nomination as a presidential candidate-facts which a party needs to establish where it is alleged that a presidential candidate was ineligible for nomination-procedure of challenging the nomination by way of a petition-provisions of section 19 of the National Assembly and Presidential Elections Act section 5(2) of the Constitution.

Election Petition-nominations-whether preliminary elections to stand for elections are part of election process-where the nomination exercise is flawed-whether such elections can be subsequently challenged by way of an election petition.

The applicants filed a constitutional reference by way of originating summons seeking a declaration that Kenya African National Union was not legally entitled to nominate H E Daniel Toroitich Arap Moi to be its presidential candidate in the General Elections scheduled for 29th December 1992 as he was disqualified by section 9 of the Constitution. It was argued for the applicants that as electors and registered voters, they were entitled to seek the intervention of the Court to prevent what they regarded as a violation of the Constitution because H E President Moi having previously held the office of President of Kenya for more than two terms was ineligible and disqualified from nomination for the same office.

The respondents applied to have the originating summons struck out on the grounds that they had no locus standi to commence the action, the application was bad in law, no violation of the Constitution or any law had occurred and that section 9 of the Constitution was not retrospective in its application.

Held:

1. Section 84(1) of the Constitution gave the High Court original jurisdiction to hear and determine applications made by a person who claims that any of his fundamental rights and freedoms guaranteed under sections 70-83 of the Constitution have been violated.

2. For a declaration to issue that the President be declared disqualified from being nominated as a presidential candidate, the application must be supported by evidence that the President does not comply with any of the conditions laid down in section 5(2) of the Constitution.

3. Whilst subsection (1) of section 10 of the Constitution provided that section 44 shall also apply to the hearing and determination of the validity of a presidential election, subsection (2) stipulates, without derogating from the provisions of section 44, that only one application shall be brought.

4. The President can thus be declared under the provisions of section 44 of the Constitution which have been made by section 10 (1) of the Constitution to apply to the President, not to have been validly elected for any number of reasons including his not being qualified to be nominated in the first place, for election as a President.

5. The National Assembly made mandatory provisions in section 19 of the National Assembly and Presidential Elections Act to the effect that such an application shall be by way of a petition subsequent to the presidential elections, to be tried by an Election Court consisting of three judges.

6. Preliminary elections such as nominations to stand for elections are part of the election process and as such, they could be challenged after the elections by way of an election petition.

7. Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Order LIII of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.

Application dismissed with costs.

Cases

1. Thande v Montgomery [1970] EA 341

2. Speaker of the National Assembly v Karume [1992] KLR 22

Statutes

1. Constitution of Kenya sections 5(2); 9; 10(2); 40; 44; 70; 71; 72; 73; 74; 75; 76; 77; 78; 79; 80; 81; 82; 83; 84(1).

2. Constitution of Kenya (Amendment) Act (No 2) 1991 (Constitution of Kenya Sub Leg)

3. National Assembly and Presidential Elections Act (cap 7) section 19.

Advocates

Mr Kariuki for the Applicants

Mr A B Shah for the Respondents

Locus standi – rate payers – whether a rate payer has sufficient interest to challenge in court the action of a public body whose expenses he contributes

Judicial Review – public authorities – whether public authorities are accountable to a court of law for the lawfulness of their action

DP & others v Kenya Times Media Trust Ltd

High Court, at Nairobi October 6, 1992

Akiwumi J

Civil Case No 4988 of 1992

Injunction - Temporary injunction-defamation-circumstances under which an injunction can be issued.

Defamation - unincorporated associations-whether unincorporated associations can commence action for libel.

Defamation - representative action-whether defamation action can be commenced in a representative capacity on behalf of the members of an unincorporated society.

The plaintiff obtained a temporary ex-parte injunction restraining the defendant from repeating the publication of an alleged defamatory matter. The grant of the injunction was contested by the defendant whether the injunction should be confirmed or discharged. It was argued for the respondent that the applicant could not bring an action for libel, secondly a representative action could not be brought on behalf of the members of the society and the grant of an injunction in defamation cases merited special consideration.

Held:

1. Whilst a trading corporation or a company which is a legal entity can because of its corporate trading character bring an action in defamation for words which are calculated to injure its reputation in its trade and business, the same cause of action might not be open to an unincorporated association.

2. Whilst it can be said that the chairman of a society can be libeled by a libel of his society because he is expected and indeed would be presumed to know what goes on in the society, the same cannot be said of the members of the society at large.

3. A court has discretion to grant an interlocutory injunction restraining further publication of a libel where the defendant continues to publish the libelous matter complained of. But this jurisdiction is a delicate one which will only be exercised with great caution and only in the clearest of cases.

Judgment for the defendant

Cases

1. Jenkins v John Bull Times, April 20th, 1990

2. Elecrical Electronic Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 All ER 1097; [1980] 3 WLR 98; [1980] QB 585

3. Bonnard & another v Perryman (1891-4) All ER 965; [1891] 2 Ch 269

Texts

1. O’Sullivan, R (Ed) (1953) Gatley on Libel and Slander London: Sweet & Maxwell 4th Edn para 954

2. Hailsham, Lord et al (Eds) (1979) Halsbury’s Laws of England London: Butterworths & Co Ltd 4th Edn Vol III p15 para 26

Statutes

Societies Act (cap 108)

Advocates

Mr Dhanji for the Defendant

[Ruling] Civil Practice and Procedure-setting aside-where the applicant’s application had been dismissed-application to set aside the order – where the applicant had done nothing for two years after filing the application-claim by the respondent that the delay was inordinate-whether the application could be allowed

Company Law-winding up cause-financial assessment of business-parties being unable to decide on who should carry out the assessment-court appointment

Thugge v Kenya Commercial Bank Ltd

High Court, at Nairobi May 29, 1990

Akiwumi J

Civil Case No 2728 of 1986

Civil Practice and Procedure – stay of execution – grounds for granting stay - decree holders financial position – whether mere allegation of decree holders inability to refund decretal sum is sufficient to grant stay – need for the applicant to show a likelihood of loss if stay was denied.

The defendant applied for a stay of execution of a judgment granted in favour of the plaintiff on the ground that if the stay were not granted and the defendant were to be successful in its appeal, this success would be rendered nugatory since the plaintiff would not be able to disgorge what the defendant would have paid him in satisfaction of the judgement.

The defendant however did not adduce any evidence to support the proposition that it would suffer substantial loss in the manner of paying the damages awarded which could cause the defendant some difficulty. The court observed that the plaintiff had already paid off his loan with the defendant and that he had additional properties whose value exceeded Kshs 5 million which amount was more than the decretal sum.

Held:

1. Merely asserting that the appeal would be nugatory because of the alleged inability of the decree holder to repay the decretal sum in the event of appeal succeeding is not sufficient.

2. There must be some evidence to show that there would be substantial loss to the defendant if stay is refused.

3. There was no justification on holding that there was a likelihood that the plaintiff would not be able to repay the decretal sum in the event of the defendant’s appeal succeeding.

Application for stay dismissed.

Cases

Kenya Shell Limited v Kibiru & another [1986] KLR 410; [1982-88] 1 KAR 1018

Statutes

No statutes referred.

Gitao & 5 others v Kenya National Chamber

of Commerce & Industry

High Court, at Nairobi May 7, 1990

Akiwumi J

Civil Case No 1859 of 1990

Civil Practice and Procedure – injunction – interlocutory injunction - application for interlocutory injunction – rules for granting injunctions - dispute between an association and its members - Kenya National Chamber of Commerce & Industry – where constituting Articles provide for internal settlement of disputes - plaintiffs expelled from membership by the association’s governing council - whether proper to restrain the association from acting on the decision.

The plaintiffs sought interlocutory orders that the Kenya National Chamber of Commerce and Industry (KNCCI) be retrained from acting on the resolution of its Governing Council to expel the plaintiffs from the Chamber. The plaintiffs further sought an injunction against the KNCCI from restraining the plaintiff from participating in the affairs of the Chamber.

The application was opposed on the grounds that the Articles of the KNCCI provided for the right of such termination and further provided for the right of an aggrieved party to appeal against such decision at the extraordinary general meeting.

Held:

1. The rules guiding the granting of an injunction provide that first the plaintiffs show a prima facie case with a probability of success. The plaintiff must also demonstrate that they will suffer irreparable injury that cannot be compensated for by the award of damages. The second rule is that if the court has doubt about the compliance with the first rule, then it must decide on a balance of convenience.

2. In the present case there was uncertainty whether the plaintiff would suffer damages which could not be compensated by damages or that they had demonstrated a prima facie case with probability of success.

3. On a balance of convenience, the facts indicated that the termination was supported by a majority of the members and that the Chamber had by its articles provided for internal-dispute settlement mechanisms. An injunction would therefore have the effect of undermining the decision making process of the Governing Council and the management of the affairs of the chamber.

4. It would on a balance of convenience be far better in the interest of the Chamber for the injunction applied for to be refused.

Application dismissed.

Cases

1. Patel v Dhanji [1973] EA 301

2. Wagara, James Keffa & another v John Anguka and Gitahi High Court Case Civil Suit No 724 of 1988

Statutes

No statutes referred.