Geoffrey Ndung’u Theuri v Law Society of Kenya

Court of Appeal, at Nairobi

December 10, 1984

Kneller JA

Civil Application No NAI 33 of 1984

(In an intended appeal from the High Court at Nairobi, Porter J)

Costs - waiver of court fees - security for costs – waiver on appeal – where applicant lacks means to pay fees and deposit security – applicant’s intended appeal having reasonable probability of success –whether applicant was entitled to waiver - Court of Appeal Rules (cap 9 Sub Leg) rule 112.

Costs - court fees and security for costs – waiver of – applicant lacking means to pay fees and deposit security – intended appeal having reasonable probability of success – whether applicant entitled to waiver - Court of Appeal Rules rule 112.

The applicant applied to the High Court by summons in chambers under order XXXIX rules 2, 5 and 9 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for an injunction to restrain the respondent from impeding his enrolment as an advocate, special and general damages and costs. The judge held that the court had no jurisdiction as the summons had not been filed out of any suit already in court and struck out the summons with the costs being awarded to the applicant. A further summons application by the applicant before the same judge to review the dismissal of the previous summons was refused. The applicant, by an ex parte notice under rule 112 of the Court of Appeal Rules, asked the Court of Appeal to direct that his intended appeal be lodged without prior payment of court fees, without lodging security for costs or on lodging of a sum less than that fixed by rule 104 of the Court of Appeal Rules and that he bears only the costs of preparing and binding his record and memorandum of appeal.

The appellate judge, after setting out the appellant’s means and considering various authorities on the issue on which the High Court had dismissed the applicant’s first summons.

Held:

1. The applicant lacked the means to pay the fees required for the lodging of his appeal or to deposit the security for costs.

2. The applicant’s intended appeal was not without a reasonable probability of success.

Application allowed.

Cases

1. Mwangi Njoroge Mugwe v James Mwangi Kihara Nairobi High Court Miscellaneous Civil Suit 255 of 1982 (unreported)

2. Manohur Lal Chopra v Rai Bahadur Rao Raja Seth Hira Lal [1962] AIR SC 527

3. Thorneloe v Skoines (1873) LR 16 Eq 126

4. Young v Brassey (1875) 1 Ch D 277

5. Carr v Morice (1873) LR Eq 125

6. Campana v Webb (1874) 22 WR 622

7. Chanhoch v Hertz (1888) 4 TLR 331

8. In Re “N” (Infants) [1967] 7 ChD 512; [1967] 1 All ER 161

9. L v L [1969] 1 All ER 852

Texts

1. Hailsham, Lord, et al (Eds) (1979) Halsbury’s Laws of England London: Butterworths, 4th Edn Vol XXIV para 1049

2. Venkataraman, T.L, (Ed) (1967) Mulla on the Code of Civil Procedure NM Tripathi Private Ltd: Bombay, 13th Edn Vol II p 1517

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 112

2. Advocates Act (cap 16) section 13

3. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 2, 5 and 9; order VI rule 12

4. Civil Procedure Act (cap 21) section 3A, 27(1), 63

5. Code of Civil Procedure 1908 [INDIA] (Act V of 1908) sections 94, 96; order 39 rule 1

6. Rules of the Supreme Court [UK] order 29 rule 1(3)

7. High Court (Practice and Procedure ) Rules (cap 8 Sub Leg)

Tito Kenyatta v Joseph Gathitu Karenju

Court of Appeal, at Nakuru

November 20, 1984

Kneller JA

Civil Application No NAI 35 of 1984

Appeal - extension of time - to file appeal - applicant’s intended appeal doomed to fail due to lack of defence - extension of time sought after duration of two years - whether applicant entitled to extension of time - Court of Appeal Rules (cap 9 Sub Leg) rule 4.

The respondent filed a suit in a magistrate’s court against the applicant in which judgment was entered after the applicant failed to enter an appearance. The applicant made an application to set aside the default judgment which was dismissed, the magistrate noting that the applicant had not indicated what his defence was. On the applicant’s appeal against the magistrate’s decision, the High Court, in addition, found that the application to set aside had been delayed for six months, the decree in the case had been executed and there had been no application to stay execution, and held that the magistrate had properly exercised his discretion in not setting aside the default judgment. About two years after the decision of the High Court, the applicant moved the Court of Appeal for an order that the time for filing an appeal against that decision be extended.

Held:

1. The court had a discretion to extend the time for filing the applicant’s appeal upon such terms as it deemed just as provided in the amended rule 4 of the Court of Appeal Rules (cap 9 Sub Leg) and that was so even if the events in question occurred before the coming into effect of the amendment.

2. The applicant had no defence to the respondent’s claim and his appeal was doomed to fail.

3. There was inordinate delay in bringing the application and if the application was to be allowed, it would cause undue prejudice to other parties.

Application dismissed.

Cases

1. Kisee Maweu v Kiu Ranching Farming Cooperative Society Ltd Civil Appeal 2 of 1983 (unreported)

2. John Kuria v Kelen Wahito Nairobi Civil Application 19 of 1983 (unreported)

3. Murai v Wainaina (No 4) Civil Application No NAI 9 of 1978; [1982] KLR 38

4. Wasike v Swala Civil Application No NAI 50 of 1983; [1984] KLR 591

5. Ladu Ltd v Siu The Times November 24, 1983 CA

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 4, 42, 54(1)(b), 74(2), 76(1), 78, 85(1), 85(2); First Schedule, Form A

2. Land Control Act (cap 302) section 6

Advocates

Mr CJO Magina for Applicant

Nyakinyua and Kange’ei Farmers Company Ltd

v Kariuki & Gathecha Resources Ltd

Court of Appeal, at Nairobi October 14, 1983

Kneller JA

Civil Appeal No 16 of 1979

(In an appeal from the High Court at Nairobi, Todd J)

Civil Practice and Procedure – amendment - power to amend judgment and orders - order of Court of Appeal - amendment where draft order does not reflect order given by court – slip rule - power of court to amend clerical or arithmetic errors and omissions in judgment – nature of mistakes to which this power is limited – where mistake not clerical or arithmetic – where judgment given per incuriam – whether such power to amend exercisable in such circumstances – Court of Appeal Rules rule 35(1), (2).

The respondent referred the draft order issued in the main appeal to a single appellate judge asking that the draft be amended to include an order which had been allowed in the appeal but which had not been included in the draft and further, to amend the paragraph in the draft ordering the respondent to pay to the appellant a certain sum of money with costs and interest at court rates so as to make it clear that the interest should be from the date of the judgment of the appellate court and not that of the High Court.

Held

1. The amendment of the draft order to include an order which had been granted but not included in it would be allowed in order that there was an accurate reflection of what the court ordered.

2. The appellate court’s order was that the interest which was awarded on court rates was to run from the date of the High Court judgment and not the date of the appeal judgment.

3. If the order on the interest was a mistake, it was not a clerical or arithmetic error and to make the interest to run from the date of the appeal judgment would amount to more than correcting the order to make it accord with the judgment.

4. Whether the order was right or wrong would be left to another court to consider because as a third member of the Court and an acting member of it, the single judge sitting on this reference could not amend the order under the slip rule or any other rule.

5. (Obiter) The slip rule cannot be applied where a judgment has been given per incuriam even if the attention of the court has not been drawn to, and the court is ignorant of, a statutory amendment of law.

Orders that draft order be amended accordingly.

Cases

1. Vallabdas Karsandas Raniga v Mansukhlal Jivraj Civil Appeal No 89 of 1962 (unreported)

2. Somanis v Shirinkhanu (No 2) [1971] EA 79

Statutes

1. Land Control Act (cap 302) sections 6, 7, 22

2. Court of Appeal Rules (cap 9 Sub Leg) rule 35(1), (2)

3. Appellate Jurisdiction Act (cap 9)

Advocates

Mr Lakha for Respondent

Industrial & Commercial Development Corporation v Onyando

 Court of Appeal, at Nairobi

June 17, 1983

Simpson CJ, Potter & Kneller JJA

 Civil Appeal No 70 of 1982

Execution - stay of execution - stay pending appeal - power to grant stay by court’s own motion - nature of power - exercise of discretion - notice to show cause why execution should not issue - requirement of - applicable rules - Civil Procedure Rules order XXI - Civil Procedure Act (cap 21) section 3A.

Execution - attachment and sale - notice to show cause - circumstances in which notice may be dispensed with - power of court to order stay of execution - when such power may be exercised - power of court to adjourn sale of attached property - Civil Procedure Rules order XXI - Civil Procedure Act (cap 21) section 3A.

Judicial discretion - exercise of - execution proceedings - discretion to order stay of execution - nature of discretion - how discretion invoked - discretion to adjourn sale of attached property - grant stay of execution ex parte - whether judge should instead have exercised discretion to adjourn sale - Civil Procedure Act (cap 21) s 3A - Civil Procedure Rules order XXI rules 7, 18, 25, 32, 35, 60, 61, 61(2), 63, 69.

The appellant sued the respondents for the recovery of the balance due under a loan agreement and obtained judgment in default of appearance. The appellant applied for execution of the decree by attachment and sale of the respondent’s moveable property to satisfy the decretal amount, costs and interest. Certain of the respondents’ goods were attached, proclaimed and advertised for sale by public auction. The respondents applied ex parte during the High Court’s long vacation for a stay of execution and liquidation of the decretal amount by instalments. They alleged that the execution application was never served upon them and that they had no notice of it before the attachment was effected. The judge held that they should have been served with the application and granted them the stay. The appellant appealed arguing that the application for stay should not have been granted ex parte and asked the court to reverse the ruling and order the respondents to pay the costs of the appeal and of the proceedings in High Court.

 Held:

1. The court has inherent power ex debito justitiae to order a stay of execution pending an appeal. That power can be properly invoked by section 3A of the Civil Procedure Act (cap 21).

2. Where there is no appeal pending but there are circumstances existing that call for the court to exercise that discretion, an order for stay of execution may be granted .

3. Under order XXI rule 63 of the Civil Procedure Rules, the court has discretion to adjourn any sale of attached property to a specified day and hour. In this case, rather than granting the application for stay ex parte, the learned judge could have postponed the sale to a date far enough to give the respondents time to serve the appellant with the application and for an early date to be taken for hearing.

4. The parties to the proceedings are under no duty to give notice at every stage of what step the other is going to take next. If the judgment debtor is aware of the attachment in time, he should tender the decretal sum and pay the brokers’ costs for the attachment to be lifted and goods restored to him. If unaware and for good reasons, he may apply for compensation in default of recovery.

5. There is no provision in the Civil Procedure Rules requiring the court to issue a notice to the person against whom execution is applied for requiring him to show cause why the decree should not be executed against him if it is to be by attachment of movable property in or not in his possession unless the application is made more than one year after the date of the decree or against the legal representative of a party to the decree (see Editorial Note, below).

6. The application was rightly brought under section 3A of the Civil Procedure Act (cap 21) but there were no grounds for invoking order XXI rule 25 of the Civil Procedure Rules.

7. (Obiter Potter JA) The rules in order XXI would appear to be carefully designed to do justice between the decree-holder and the judgment debtor. There may be occasions when a judge might properly supplement those rules by invoking his inherent powers in order to do justice between the parties. Appeal allowed.

Editorial Note: Order XXI rule 18(1) of the Civil Procedure Rules (Revised Edition 1998 (1985)), following an amendment by virtue of Legal Notice No 16 of 1984, provides as follows:

“18(1) Where an application for execution is made:

(a) More than a year after the date of the decree; or  

(b) against the legal representative of a party to the decree; or

(c) for attachment of salary or allowance of any person under rule 43, the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him ...”

Cases

1. Olivia Da Ritta Siqueria E Facho & Another v ER Siqueria, BA Roderigues and RA Ribeiro (1933) 15 KLR 34

 2. Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263

Statutes

1. High Court (Practice and Procedure) Rules (cap 8 Sub Leg) rules 3, 6

2. Civil Procedure Act (cap 21) sections 3A, 38

 3. Civil Procedure Rules (cap 21 Sub Leg) order XX rule 11(2), order XXI rules 7, 18, 25, 32, 35, 60, 61, 61(2), 63, 69

Advocates

KM Muli for Appellant

SM Munikali for Respondents

Onyango v Republic

Court of Appeal, at Nairobi May 5, 1983

Simpson CJ, Potter & Kneller JJA

Criminal Appeal No 69 of 1982

Jurisdiction - of Court of Appeal - appeals from the High Court originating from Court Martial - second appeal to Court of Appeal - whether Court of Appeal has jurisdiction to hear second appeals - provisions of the Armed Forces Act (cap 199) sections 30(1); 38(a) - part IX: sections 115-130 - Criminal Procedure Code (cap 75) part XI: sections 347 to 361 – Armed Forces (Court Martial Appeals) Rules.

Court martial - appeals from - appeal to High Court - second appeal to Court of Appeal - whether Court of Appeal has jurisdiction to hear such appeal.

Statutes - interpretation of - statute declaring appeal to High Court from Court Martial to be final - a later statute conferring jurisdiction on Court of Appeal to hear appeals from the High Court - repeal of the provision in the former statute declaring appeal to the High Court to be final – whether appeal implied the conferment of a right of second appeal from High Court to Court of Appeal - Armed Forces Act (cap 199)- Appellate Jurisdiction Act - Armed Forces (Amendment) Act 1978.

The appellant, an army officer, was convicted and sentenced by a court martial of two counts of stealing public property and one of disobedience to standing orders contrary to sections 38(a) and 30(1) of the Armed Forces Act (cap 199). His appeal to the High Court against the convictions and sentences was allowed in respect of the two counts of theft while the appeal against the third count was dismissed. On appeal to the Court of Appeal, the court had to decide whether it had jurisdiction to hear a second appeal from the decision of a court martial.

Held:

1. The jurisdiction of the Court of Appeal of Kenya, like that of its predecessor, the Court of Appeal for East Africa, is derived from statute and the court has no inherent jurisdiction.

2. In the absence of any prior statutory provision conferring a right of appeal, a right of appeal to the Court of Appeal cannot be inferred from the repeal of a provision to the effect that no appeal shall lie from the High Court. In this case, there was no statutory provision for a second appeal from the Court Martial to the Court of Appeal.

3. The repeal of section 121 of the Armed Forces Act (cap 199) which expressly barred appeals to the Court of Appeal on a matter from the Court Martial, did not in itself create a provision allowing reference to the Court of Appeal. Part IX of the Armed Forces Act (sections 115 to 130) has express provisions for appeals from the Court Martial to the High Court, but there is no reference to the Court of Appeal in the said part IX. Furthermore, section 230 empowers the Chief Justice to make rules prescribing practice and procedure in appeals under part IX of the Act. In those rules, references to ‘the court’ are references to the High Court and there is no reference to the Court of Appeal.

4. (Obiter) “It would be surprising if Parliament had introduced a second appeal to this court without applying to the second appeal any of the procedural provisions applied by part IX of the Armed Forces Act to the first appeal to the High Court ... If Parliament had intended to amend the Armed Forces Act so as to create a second appeal from Courts Martial, we are satisfied that it would have made its intention plain.”

Appeal dismissed.

Editorial Note:

When the Armed Forces Act (cap 199) commenced on December 2, 1968, it enacted in its section 121 that a determination by the High Court of an appeal from a decision of the Court Martial would be final and no appeal would lie from the High Court to any other court. At the time, there existed the Court of Appeal for East Africa. In due course, the Appellate Jurisdiction Act (cap 9), an Act of Parliament which conferred on the Kenyan Court of Appeal established by section 64(1) of the Constitution jurisdiction to hear appeals from the High Court, commenced on October 28, 1977. Then, by virtue of the Armed Forces (Amendment) Act 1978 (No 12 of 1978), section 121 of the Armed Forces Act was repealed. In this case it was argued, unsuccessfully, that the repeal of section 121 meant that the determination of the High Court on an appeal from the decision of a Court Martial could be the subject of a second appeal to the Court of Appeal.

Cases

1. Attorney-General v Shah (No 4) [1971] EA 50

2. Samanis v Shirinkanu (No 2) [1971] EA 79

3. Njeru v Republic Cr App 4 of 1979 (unreported)

4. Munene v Republic [1971] KLR 105

Statutes

1. Armed Forces Act (cap 199) sections 30(1); 38(a); part IX: sections 115-130, section 230

2. Criminal Procedure Code (cap 75) part XI: sections 347 to 361

3. Armed Forces (Amendment) Act 1978 (No 12 of 1978)

4. Armed Forces (Court Martial Appeals) Rules (cap 199 Sub Leg)

5. Legal Notice No 255 of 1969

6. Appellate Jurisdiction Act (cap 9) section 3(1)

7. Constitution of Kenya section 64(1)

Advocates

Onyango Otieno for Appellant

MG Muli, Attorney General & JM Bwonwonga for Respondent

Queensway Trustees Ltd v Official Receiver & Liquidator Tanneries of Kenya Ltd

Court of Appeal, at Nairobi

April 21, 1983

Madan, Potter & Kneller JJA

Civil Appeal No 20 of 1981

Company law - winding up - when winding up takes effect - whether it takes effect upon presentation of petition or upon making of the winding up order - effect of winding up order - effect on the powers of the directors - disposition of company property after presentation of winding up petition - meaning of disposition - registration and execution of charge after winding up order and petition - effect of - validity of such a charge - purpose of registration of charges.

Mortgages and charges - registration of charge s - over company property - validity of a charge signed after presentation of winding up petition and order.

Tanneries of Kenya Ltd was, upon a creditor’s petition presented to the High Court on June 20, 1978, ordered to be wound up on July 18, 1978 and the official receiver was appointed its liquidator. An investigation into the company’s affairs revealed a legal charge registered on July 6, 1978, by which the company purported to charge a certain 14.86 Ha of land. A trust deed dated and registered on July 21, 1976 between the company and its debenture-holders appointed the appellant as the trustee for the debenture-holders and was issued to secure a sum of Kshs. 1,600,000 lent by the appellant to the company. The trust deed provided, inter alia,that the company would execute a legal mortgage or charge over its immovable property in favour of the trustee.

 After the charge was prepared, it was engrossed and executed in 1977 but it was not registered until July 10, 1978, about two years after the registration of the trust deed. By July 5, 1978, however, the company had become insolvent and a receiver and manager was appointed by the appellant over all the property and assets charged by the trust deed. The liquidator agreed to the sale of the land to a third party and a conveyance to that effect was executed.

The appellant, who attributed the delay in registering the charge to the company’s delay in paying rent to the government on respect of the charge property, applied to the High Court under the Companies Act section 224 for an order that the charge should be treated as a valid security for the sum of Kshs. 1,600,000.

A question arose before the trial judge as to whether a charge over land was a “disposition” as contemplated under section 224 of the Companies Act. Holding that it was, the judge also held that the directors of the respondent company had no power to execute the charge when they purported to do so. He suspected that the delay to register the charge was meant to mislead the creditors of the company. The judge refused to exercise his discretion in favour of the appellants for lack of good faith and the appellant appealed.

Held:

1. A winding up by the court dates from the date of presentation of the petition, and the directors are dismissed from then on, and have no powers to act on behalf of the company. Any charge executed and registered by the directors afterwards is void ab initio.

 2. When a receiver manager is appointed out of court, the management and control of the company’s assets are taken out of the hands of the directors. At this stage the corporate structure may remain for purposes of; discharging the usual statutory duties; to deal with assets not covered by the security under which the receiver is appointed and property held by the company in trust for third parties.

3. The appellate court cannot interfere with the exercise of discretion by trial court unless it is satisfied that there was a misdirection and the decision is clearly wrong resulting in injustice (Mbogo v Shah [1968] EA 93, 96 G H (CA-K)).

4. The term “disposition” although not defined in section 224 of the Companies Act (cap 486) includes a charge in the Trust Lands Act (cap 290) and a conveyance of rights under the Registered Land Act (cap 300).

5. (Obiter Kneller JA) The purpose of the registration of charges is to give notice to creditors of the company’s creditworthiness. The failure to register the charge could be misleading to prospective creditors.

Appeal dismissed.

Cases

 1. Re Steane’s (Bournemouth) Ltd [1950] 1 All ER 21 (Ch D)

2. Fowler v Broad’s Patent Night Light Co [1893] 1 Ch 724, 730 (Ch D)

3. Gosling v Gaskell [1897] AC 575, 591, 595

4. Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 2 All ER 552

5. Mbogo v Shah [1968] EA 93, 96

Texts

1. Schmitthoff, C.M., Thompson, J.H. (Eds) (1968), Palmer’s Company Law, 21st Edn London:Sweet & Maxwell, p 749

2. Walton R. (1978), Kerr on the Law and Practice as to Receivers, 15th Edn London: Sweet & Maxwell, p 33

Statutes

1. Companies Act (cap 486) sections 224, 226(2), 230, 274, 312

2. Trust Lands Act (cap 290)

3. Registered Land Act (cap 300)

4. Companies (Winding up) Rules (cap 486 Sub Leg) rules 5(2), 7(2)

5. Registration of Titles Act (cap 281) sections 20, 32

6. Interpretation and General Provisions Act (cap 2)

Advocates

RO Kwach for Appellant

S Gautama for Respondent