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

Mutsonga v Nyati

High Court, at Mombasa September 12, 1984

Kneller J

Civil Suit No 295 of 1976

Land – land registration – first registration of land – effect of – whether land register is capable of rectification where registration is a first registration – meaning of rectification – procedure where first registration is a mistake – order by court of transfer of land to rightful owner – whether change in land register reflecting such transfer amounts to rectification of the register.

Customary law – customary rights to land – whether customary rights interests are overriding rights – land owned and administered under customary law of the Mijikenda – land later registered in name of defendant as absolute proprietor – effect of such registration on customary rights - Registered Land Act (cap 300).

Fraud – proof of fraud – standard of proof.

Equity – trust - constructive trusts – land held under customary law – first registration of land in name of another person as absolute proprietor –registration done by mistake - effect of registration on rights of customary owner - applicability of doctrine of trust .

The plaintiff filed a suit asking the court for, among other things, a declaration that the defendant held the piece of land forming the subject of the suit in trust for him. The plaintiff averred that he had borrowed some money from the defendant and as security for the loan, he let the defendant use the land but the defendant had fraudulently caused himself to be registered as the absolute proprietor of the land and had declined to restore the land to the plaintiff even after the plaintiff had tendered the loan money for repayment. The defendant, in his defence, claimed that the plaintiff and his father had received the money from him not by way of a loan but in exchange for the land. He claimed further that the registration of the land in his name was done openly and lawfully and that for about ten years, he had been in possession of the land and the plaintiff had no entitlement to it. The evidence showed that prior to registration, the land belonged to the plaintiff’s father, who had died before the commencement of the suit, and the land was administered according to the customs of his people, the Jibana, who were one of the nine tribes of a people known as the Mijikenda. Among the Mijikenda, it was believed that land was given by God to the clan and the elders apportioned it to the clan members. Those partitions were known as the land of those members as a matter of identification and were normally passed from father to son. Prior to registration therefore, a sale of Mijikenda land was improbable and would normally involve a meeting called by a chief. The Mijikenda nevertheless recognized arrangements whereby one person would occupy and use the land of another in return for money but under circumstances forbidding the occupier from becoming the owner of the land and enabling the other to re-occupy it upon the satisfaction of agreed terms.

Held:

1. Allegations of fraud must be strictly proved and although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, a high degree of probability is required, which is something more than a mere balance of probabilities, and it is a question for the trial judge to answer.

2. On the evidence, the registration of the defendant as the absolute proprietor of the land was made by mistake and not by fraud.

3. Though it had been established on the evidence that the plaintiff’s father was the owner of the land under customary law, however under the Registered Land Act (cap 300) section 30, customary land rights are not overriding interests to which the title of a registered proprietor of land is subject.

4. The equitable doctrines of implied, constructive and resulting trusts are applicable to registered land by virtue of section 163 of the Act which provides for the application of the common law of England as modified by equity. A constructive trust arose in favour of the plaintiff’s father as the owner of the land under customary law when the land was first registered in the name of the defendant.

5. Though section 143 of the Act forbids any rectification of the land register where such rectification concerns a first registration, the meaning of rectification, which is the sense in which it is often applied, is to correct an entry in a register, and this is different from making an entry recording a lawful transfer ordered by a court.

6. The words “as trustee” should have been entered against the defendant’s title on the land register but that needed not be done after the many years that had passed. The defendant’s name also needed not be struck out of the register but a line would be added to the register under the first registration to make the register conformable with the transfer of the land to the plaintiff as ordered by the court.

Judgment for the plaintiff.

Cases

1.Obiero v Opiyo and others [1972] EA 227

2. Esiroyo v Esiroyo and another [1973] EA 388 (K)

3. Kiama v Mathanya Civil Appeal No 42 of 1978 (unreported)

4. Hussey v Palmer [1972] 1 WLR 1286, 1289, 1290 (CA); [1972] 3 All ER 744

5. Pulbrook v Richmond Consolidated Mining Co (1878) 9 Ch D 610

6. Re National Bank of Wales (1897) 6 LJ Ch 222, 226, 227

7. Mason v Clarke [1955] AC 778; [1954] 1 All ER 189

8. Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205

9. Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314

10. Hornal v Neuberger Products Limited [1957] 1 QB 247 (CA); [1956] 3 All ER 970

11. Gross v Lewis Hillman Ltd [1970] Ch 445; [1969] 3 All ER 1476

12. Ludgater v Love (1881) 44 LT 694

Texts

1. Parkin, D.J. (1972) Palms, Wine and Witnesses: Public Spirit and Private Gain in an African Farming Community London: Chandler Publishing pp 53, 54

2. Dias, R.W. (Ed) (1982) Clerk & Lindsell on Torts London: Sweet & Maxwell, 15th Edn p 843 para 17-20

3. Simmonds, V. at al, (Ed), (1959) Halsbury’s Laws of England London: Butterworth & Co 3rd Edn vol XXVI p 845 para 1572

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXIV rule 1

2. Registered Land Act (cap 300) sections 28, 30, 143, 163

3. Companies Act 1862 [UK] section 35

Advocates

Mr M Muhuni for Plaintiff

Munini & another v Nzambi

High Court, at Mombasa May 14, 1984

Kneller J

Civil Case No 751 of 1977

Marriage – customary marriage – Kamba customary marriage – essentials of – proof of such marriage.

Customary law – Kamba customary law – marriage – essentials of marriage.

Evidence – burden of proof – standard of – burden and standard of proof in civil cases – party on whom burden of proof lies – party having special knowledge of issue – party likely to fail if no evidence is given – Evidence Act (cap 80) sections 107, 108, 112.

The plaintiffs, as the wives under Kamba customary law of the deceased, who had died intestate, instituted a suit against the defendant who the Public Trustee intended to include as a third wife of the deceased in the distribution of the assets of his estate. In the suit, the plaintiffs sought declarations that the defendant was not the lawful wife or heir of the deceased and was not entitled to any share of his estate, the rendering of an account, damages and costs. During the trial, the plaintiffs’ advocate raised the question whether the decision of the Court of Appeal for East Africa in Hortensiah Wanjiku Yawe v The Public Trustee, Civil Appeal No 13 of 1976, which touched on matters of the proof of the existence of a customary marriage and which the court in this case intended to follow, was unconstitutional, and further submitted that the question should be referred to the High Court under section 67 of the Constitution because the decision was contrary to the provisions of section 3(2) of the Judicature Act (cap 8).

Held

1. Whether the defendant was married to the deceased under customary law was a matter which was specially within their knowledge and so the burden of proving, upon a balance of probabilities, the facts which qualified their union as such marriage was upon the defendant.

2. As the plaintiffs were the parties who would fail in the suit if no evidence were given on either side, the burden lay on them to prove, on a balance of probabilities, that the defendant was not married to the deceased under Kamba customary law and if so, that she unlawfully intermeddled with his estate and the loss, if any, suffered by the estate.

3. The question whether the decision of the Court of Appeal for Eastern Africa in Hortensiah Wanjiku Yawe v The Public Trustee, Civil Appeal No 13 of 1976 was unconstitutional would not be referred to the High Court as the decision was not repugnant to justice or inconsistent with any written law as provided in section 3(2) of the Judicature Act (cap 8).

4. Even if that decision was repugnant to justice and inconsistent with written law, it would not be a question as to the interpretation of the Constitution requiring reference to the High Court within the meaning of section 67(1) of the Constitution.

5. It had been proved that the deceased and the defendant were man and wife under Kamba customary law and though some ceremonies and rituals for such a marriage had not been fulfilled before the deceased’s death, they did not affect the presumption or the validity of the marriage.

6. The plaintiffs had not proved that the defendant had unlawfully meddled with the deceased’s estate.

7. The costs of a suit are in the discretion of the court. In the circumstances of this case, the costs would go to the defendant against the plaintiffs.

Appeal dismissed.

Cases

1. Hortensiah Wanjiku Yawe v The Public Trustee Court of Appeal Civil Appeal No 13 of 1976 (unreported)

2. Mwagiru v Mumbi [1967] EA 639 642

3. Toplin Watson v Tate [1937] 3 All ER 105

4. Sastry Veliader Areniegary v Deinbecutty Vaigalie (1880-1) 6 AC 364

5. Shepherd George v Thye [1904] 1 Ch 456

6. Duncan Gachrini Ngare v Joseck, Susan Kaniana and Rose Ngina Nyakio Nairobi Civil Suit 1460 of 1970 (unreported)

7. In the Matter of the Estate of Jonah Gachiani Nairobi Civil Suit 2602 of 1977 (unreported)

8. Frances Jacinta Chesire v Reuben Kiplangat Chesire Nairobi Civil Suit No 4093 of 1982 (unreported)

10. Kisito Charles Macharia v Rosemary Moraa Nairobi Miscellaneous Civil Cause No 364 of 1981(unreported)

Texts

Cotran, E. (1968) Restatement of African Law: Laws of Marriage and Divorce London: Sweet & Maxwell, Vol I pp 23, 24

Statutes

1. Evidence Act (cap 80) sections 107, 108, 112

2. Constitution of Kenya section 67

3. Judicature Act (cap 8) section 3(2)

Advocates

Mr Mututo for Appellants

Mr Kiambo for Defendant

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