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

Mukai Mwanza v Joseph Matheka & 4 Others

High Court, at Mombasa

April 2, 1982 Kneller J

Civil Case No 216 of 1976

Negligence - contributory negligence - apportionment of liability - traffic accident - collision of vehicles in middle of tarmac road in fine weather.

Damages - quantum of damages - personal injury - pain and suffering, physical disablement and loss of amenities - assessment of damages - determination loss of earnings.

The plaintiff, a widowed mother of seven children, was a farmer and groceries trader. She was a passenger in the omnibus when a collision occurred between the omnibus and another vehicle, in the centre of a good tarmac road during fine weather and the vehicles were not shown to have been in an unsatisfactory condition. Upon impact, the vehicles had overturned and a fire ensued in which their drivers and twenty-eight passengers, including the plaintiff’s four-month old baby, perished. The plaintiff suffered severe shock and serious burns on over thirty percent of her body for which she was hospitalized for about three and half months during which time she had a skin grafting. She sued the defendants claiming special damages and general damages for pain and suffering, physical disablement and loss of amenities.

Held:

1. It was probable that the driver of the bus had taken no action at all to avoid the collision and he must have seen the other vehicle long enough to rule out his being put in a situation of having to make a decision in the agony of the moment.

2. The defendants were negligent and were equally to blame for the accident.

3. The awards of foreign courts for the kind of injuries complained of by the plaintiff did not necessarily represent the standards which should prevail in Kenya.

4. The plaintiff was awarded Kshs 210,000 for shock, pain, suffering, loss of amenities and permanent disablement, and Kshs 144,000 for loss of earnings.

Judgment for the plaintiff.

Cases

1. Jefford v Gee [1970] 2 QB 130 (CA) Applied

2. George v Pinnock [1973] 1 WLR 118 Applied

3. Kimothia v Bhamra Tyre Retreaders & Another [1971] EA 81 Distinguished

4. Lloyd v British Airports Authority & Brocks Fireworks Limited [1976] CA No 441 A Referred

5. Bromley v Reed Paper and Board (UK) Ltd, January 12, 1978 (unreported) Referred

6. Willi Joseph v Highway Carriers Ltd (Nairobi) HCCS 1679 of 1976 (unreported) Approved & Applied

Texts

DA Kemp, Kemp & Kemp: The Quantum of Damages in Personal Injury and Fatal Accidents Claims, Sweet & Maxwell: London, 4th Edn, 1982, para J2-010

Statutes No statute referred to.

Advocates

Mr Ghalia for Plaintiff

Mr Manek & Mr Kinyajui for Defendants

Bayusuf Brothers Ltd v Kyalo

High Court, at Mombasa December 19, 1980

Kneller J

Civil Case No 762 of 1976

Civil practice and procedure - amendment of pleadings - discretion of the court to allow or disallow an application for amendment - when amended defence contradicts earlier defence - long period between amended defence and when cause of action arose.

The defendants applied for leave to amend their defence. The amended defence which came 31/2 years later substantially contradicted the initial defence. The plaintiff objected to the amendment and applied for the same to be struck out.

Held :

1. The granting and disallowing amendment of pleadings is within the discretion of the court.

2. The application to amend is disallowed as applicant had not given valid reasons to the satisfaction of the court.

Application disallowed.

Cases

1. Bindera w/o Said Molo v Salim Said Bajoh and Omar Sheikh Said in Mombasa HCCC 461 of 1973

Statutes

Civil Procedure Act (Cap 21, Sub Leg) Order VIA rule 3

R  M v Gayatri Engineering Works

High Court, at Mombasa June 18, 1980

Kneller J

Civil Case No 214 of 1978

Negligence - contributory negligence - when can an employee aged sixteen be said to have contributed to injury during the course of employment - contributory negligence and proportion thereof - failure to use protective goggles where those provided by the employer were defective - where demand for goggles causes threat of loss of job - existence of notice that work must be done with protective eye goggles when none were provided.

Employment - injury in the course of duty/employment – failure to provide safe working environment; is this a breach of the employment contract?

Factories Act - standard of proof of existence of statutory duty to provide protective clothing as per Section 54(1).

The plaintiff a minor aged sixteen years was employed by the defendant. He was injured during the course of employment. The plaintiff contended that the defendant did not provide protective appliances therefore was in breach of statutory duty under the Factories Act Section 54(1). The defendant argued that it did provide these appliances and that the plaintiff had failed to use them and therefore was negligent to an extent. The defendant further argued that even though the available protective goggles were defective, there was a spare one in the store.

Held :

1. It is not enough for an employer to provide a safe working system or appliance, he must also ensure that the system is followed and the appliance used.

2. The existence of spare goggle in the store does not discharge the employer from liability.

3. The employer having failed to ensure and to see as far as it is reasonably possible that the system worked was in breach of the statutory duty under the Act. Plaintiff has further proved beyond the balance of probabilities that the defendant was guilty.

4. Even if there had been no statutory breach (which was not the case), there would be a breach of its common law duty and it was proved that the defendant was in breach of this common law duty.

5. The plaintiff was 50% responsible for the injury hence contributory negligence.

Appeal dismissed.

Cases

No case referred to.

Statutes

Factories Act

Mwangi v Mwenjathi

High Court, at Mombasa May 14, 1980

Kneller J

Civil Case No 589 of 1977

Land - Land Control Board - transaction in controlled land without subsequent Land Control Board consent - can a purchaser succeed in a claim for improvements or mesne profits in such a failed transaction.

The plaintiff entered into a sale agreement with the defendant for six acres of the defendants 13.9 acres. The plaintiff paid the total purchase price set out which was Kshs 3,900 on condition that the defendant would obtain the necessary Land Control Board consent and cause the land to have a separate title issued. Meanwhile, the plaintiff and his family moved to the suit land and carried on general development. However the defendant failed/refused to obtain the necessary Land Control Board consent and the plaintiff has sued for specific performance of the agreement for sale or the return of Kshs 3,900, Kshs 455 for the agreement and a further Kshs 19,100 for improvements made on the six acres for the last seven years.

Held :

1. That the sale was void for all purposes because the Land Control Board had not given its consent within three months of the agreement hence specific performance cannot be ordered.

2. That the plaintiff’s entry into possession of the suit land was in furtherance of a void transaction and constitutes an offence under Section 22 of the Land Control Act.

3. That the plaintiff could only recover the purchase price as a debt.

4. That the plaintiff failed in his claim for improvements or mesne profits and must vacate the suit land.

Action dismissed with costs.

Cases

1. Peter Kairie Murigi v Nginyo Kariuki & 2 others Nairobi High Court Civil Suit 16 of 1969

Statutes

Land Control Act (Cap 302)

Advocates

Macharia & Njage for Plaintiff

Re Garnets Mining Co Ltd

High Court, at Nairobi 21st, 22nd December 1977, 20th January8th, 9th February 5th, 6th, 10th-12th, 14th , 17th-19th, 21st July, 23rd November 1978

Kneller J

Winding-up Cause No 12 of 1977

Winding-up – winding-up by Court – circumstances in which order may be made – just and equitable – criteria – loss of confidence in management – Companies Act (Cap 486), section 219(f).

Winding-up – winding-up by Court – petitioner – need for petitioner to come to Court with clean hands – petition relying on just and equitable ground.

Winding-up – winding-up by Court – circumstances in which order may be made – just and equitable – criteria – company a quasi-partnership – Companies Act (cap 486), section 219(f).

Whether or not a company should be wound up by the Court on the ground that it is just and equitable to wind it up under section 219(f) of the Companies Act is a matter of discretion. The court’s discretion in this respect is wide and must be exercised judicially. Each case depends on its own facts as they are at the time of the hearing; but, generally, where a petitioner can show that he has lost confidence in the management of the company because it has a lack of probity, the court’s discretion (in the absence of special circumstances) is likely to be exercised in his favour.

A petitioner seeking to rely on just and equitable grounds must approach the Court with clean hands.

Re Blériot Manufacturing Air Craft Co (1916) 32 TL R 253, Baird v Lees 1924 SC 83, Loch v John Blackwood Ltd [1924] AC 783, Davis & Co Ltd v Brunswick (Australia) Ltd [1936] 1 All ER 299, Re Straw Products Pty Ltd [1942] VLR 222, Re Fildes Bros Ltd [1970] 1 WLR 592, Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 and Cookson v Knowles [1978] 2 WLR 978 Applied.

Where a company is a quasi-partnership, even if all the creditors or shareholders are not entitled to participate in the conduct of the company’s business, the company may be wound up by the Court under section 219(f) of the Companies Act on the ground of its being just and equitable, in circumstances where it would be appropriate to dissolve a partnership; but this would not be the case where the cause of complaint arises from the valid exercise by the other members of their powers under the articles of association.

Symington v Symington’s Quarries Ltd 1905 8 F 121, Re Yenidje Tobacco Co Ltd [1916] 2 Ch 426, Loch v John Blackwood Ltd [1924] AC 783, Thomson v Drysdale 1925 SC 311, Tench v Tench Bros [1930] NZLR 403, Re Davis and Collett Ltd [1935] Ch 693, Re Cuthbert Cooper & Sons Ltd [1937] Ch 392, Re Straw Products Pty Ltd [1942] VLR 222 and Re Wondoflex Textiles Pty Ltd [1951] V L R 458 applied

Cases referred to in judgment:

1. A&BC Chewing Gum Ltd, Re [1975] 1 WLR 579, [1975] 1 All ER 1017.
2. Alexander v Automatic Telephone Co [1900] 2 Ch 56, 69 LJ Ch 428, 82 LT 400, CA.
3. Baird v Lees 1924 SC 83.
4. Bellador Silk Ltd, Re [1965] 1 All ER 667.
5. Bentley-Stevens v Jones [1974] 1 WLR 638, [1974] 2 All ER 653.
6. Blériot Manufacturing Air Craft Co, Re (1916) 32 TLR 253.
7. Busland v Earle [1902] AC 83.
8. Campbell v Rothwell (1877) 47 LJQ 144, 38 LT 33.
9. Charles Forte Investments Ltd v Amanda [1964] Ch 240, [1963] 3 WLR 662, [1963] 2 All ER 940, CA.
10. Chesterfield Catering Co Ltd, Re [1977] Ch 373, [1976] 3 WLR 879, [1976] 3 All ER 294.
11. Clemens v Clemens Bros [1976] 2 All E R 268.
12. Cohen, Re [1924] 2 Ch 515, 94 LJ Ch 73, CA.
13. Cookson v Knowles [1979] AC 556, [1978] 2 WLR 978, [1978] 2 All ER 604, HL.
14. Cumberland Holdings Ltd, Re [1976] 1 ACLR.
15. Cuthbert Cooper & Sons Ltd, Re [1937] Ch 392, [1937] 2 All ER 466.
16. Daniels v Daniels [1978] Ch 406, [1978] 2 WLR 73, [1978] 2 All ER 89.
17. Daslo-Stolan Mining & Financial Corporation Ltd, Re [1910] WN 13.
18. Davis & Co Ltd v Brunswick (Australia) Ltd [1936] 1 All ER 299, PC.
19. Davis and Collett Ltd, Re [1935] Ch 693, 104 L J Ch 340, 153 LT 329.
20. Davis Investments (East Ham) Ltd, Re [1961] 1 WLR 1396, [1961] 3 All ER 926, CA.
21. Diamond Fuel Co, Re (1879) 13 Ch D 400, 49 LJ Ch 301, 41 LT 779, CA.
22. Ebrahimi v Westbourne Galleries Ltd [1973] AC 360, [1972] 2 WLR 1289, [1972] 2 All ER 492, HL.
23. Expanded Plugs Ltd, Re [1966] 1 WLR 514, [1966] 1 All ER 887.
24. Fildes Bros Ltd, Re [1970] 1 WLR 592, [1970] 1 All ER 923.
25. Foss v Harbottle (1843) 2 Hare 461.
26. German Date Coffee Co, Re (1882) 20 Ch D 169, 51 LJ Ch 564, 46 LT 327, CA.
27. Gold Hill Mines, Re (1883) 23 Ch D 210, 49 LT 66, CA.
28. Hang (Sverre) v Buhemba Mines Ltd (1953) 20 EA CA 28.
29. Haven Gold Mining Co, Re (1882) 20 Ch D 151, 51 L J Ch 242, 42 LT 322, CA.
30. Hawken (S A) Ltd, Re [1950] 2 All E R 408.
31. Haycraft Gold Reduction and Mining Co, Re [1900] 2 Ch 230, 69 LJ Ch 497, 83 LT 166.
32. K/9 Meat Supplies (Guildford) Ltd, Re [1966] 1 WLR 1112, [1966] 3 All ER 320.
33. Kitson & Co Ltd, Re [1946] 1 All ER 435, CA.
34. Leadenhall General Hardware Stores Ltd, Re (1971) 115 SJ 202.
35. Lewis v Haas 1970 SLT (Notes) 67.
36. Loch v John Blackwood Ltd [1924] AC 783, 93 LJP C 257, 131 L T 719, PC.
37. London and Manchester Industrial Association, Re (1875) 1 Ch D 466.
38. London Suburban Bank, Re (1871) 6 Ch App 164, 40 LJ Ch 774.
39. Lundie Bros Ltd, Re [1965] 1 WLR 1051, [1965] 2 All ER 692.
40. Mason Bros Ltd, Re (1891) 12 NSW Eq 183.
41. Meyers v Cassidy (1913) 17 CLR 90, High Court of Australia.
42. Modern Retreading Co Ltd, Re [1962] EA 57, High Court of Tanzania.
43. Mohamed Mitha v Ibrahim Mitha [1967] EA 575, High Court of Uganda.
44. Mozley v Alston (1847) 1 Ph 790, 16 LJ Ch 217, 9 LTO S 97.
45. New Callao Ltd, Re (1882) 47 LT 175.
46. Newman and Howard Ltd, Re [1962] Ch 257, [1961] 3 WLR 192, [1961] 2 All ER 495.
47. North End Motels (Huntly) Ltd, Re [1976] NZLR 446.
48. Oakbank Oil Co v Crum (1882) 8 App Cas 65, 48 L T 537, H L.
49. Othery Construction Ltd, Re [1966] 1 WLR 69, [1966] 1 All ER 145.
50. Peruvian Amazon Co Ltd, Re (1913) 29 TLR 384.
51. Phillips v Manufacturers’ Securities Ltd (1917) 86 LJ Ch 305, 116 LT 290, CA.
52. Rhoprops Ltd, Ex parte; Re Piras Garden Properties (Pvt) Ltd 1953 (3) SA 630.
53. Rica Gold Washing Co, Re (1879) 11 Ch D 36, 40 Lt 531, CA.
54. Smith and Fawcett Ltd, Re [1942] Ch 304, [1942] 1 All ER 542, CA.
55. Spackman, Ex parte (1899) 1 Mac & G 170, 18 L J Ch 261, 13 LTOS 358, 41 ER 1229.
56. Straw Products Pty Ltd, Re [1942] VLR 222.
57. Suburban Hotel Co, Re (1867) 2 Ch App 737, 36 LJ Ch 710, 17 LT 22.
58. Symington v Symington’s Quarries Ltd 1905 8 F 121.
59. Taldua Rubber Co Ltd, Re [1946] 2 All ER 763.
60. Tench v Tench Bros [1930] NZLR 403.
61. Thomas Edward Brinsmead & Sons, Re [1897] 1 Ch 406, 66 L J Ch 290, 76 LT 100, CA.
62. Thomson v Drysdale1925 SC 311.
63. West Surrey Tanning Co, Re (1866) LR 2 Eq 737.
64. Wondoflex Textiles Pty Ltd, Re [1951] VLR 458.
65. Yenidje Tobacco Co Ltd, Re [1916] 2 Ch 426, 86 LJ Ch 1, 115 LT 530, CA.

Petition

Mrs Beth Wambui Mugo petitioned the Court in Winding-up Cause No 12 of 1977 to wind up Garnets Mining Co Ltd. The company opposed the petition. In the course of his judgment, Kneller J described the petitioner as the daughter of Mr James Muigai, the brother of the late President Kenyatta. She was married to Mr Nicholas Mugo, the Ambassador to Ethiopia and later to various countries in Europe.

Advocates

P Le Pelley and KA Fraser for the Petitioner.

PK Muite for Garnets.

Cur adv vult.

The Republic v Wahome

High Court, Appellate Side, Nairobi 27th July 1977

Kneller & Sachdeva JJ

Traffic - notice of intended prosecution - ineffective notice - onus of proof - adequacy of description of place in notice - Traffic Act (cap 403), section 50.

The respondent was driving a motor vehicle on 17th July 1976 and was alleged to have caused the death of another by his driving. He was served with a notice of intended prosecution alleging that the accident had occurred on the “Juja road”, a road some ten miles long. He appeared in Court on 20th July and pleaded not guilty to a charge of causing death by dangerous driving. His trial was fixed for 30th August, when the magistrate, allowed a plea that the notice of intended prosecution was invalid (in that it did not adequately describe the place of the accident) to be tried as a preliminary issue. The magistrate upheld the plea and acquitted the respondent. On appeal by the Republic,

Held:

Allowing the appeal

(1) That as section 50(c)(ii) of the Traffic Act placed the burden of proving that the notice of intended prosecution was invalid on the respondent, this issue should not have been tried as a preliminary point of law.

Greene v R [1970] E A 62, EACA, followed.

(2) That, bearing in mind that a person had been killed and that the respondent had been brought to Court within three days, the place of the accident was adequately described in the notice; and, furthermore, the notice itself was intended merely to give warning to the respondent and did not form the basis of a conviction.

Ndungu Mwaura v The Republic [1976] Kenya LR 214 considered.

Young v Day (1959) 123 JP 317 distinguished.

Cases referred to in judgment:

Attorney General v Husein Mohamed (unreported) Mombasa Criminal Appeal No 12 of 1974.

Beresford v St Albans’Justices (1905) 22 TLR 1.

Goody v Fletcher [1962] Crim LR 324.

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

Hunter (GR) v R [1957] EA 561.

Milner v Allen [1933] 1 KB 698; 102 LJKB 395; 149 LT 16.

Ndungu Mwaura v The Republic [1976] Kenya LR 214.

Pope v Clark [1953] 1 WLR 1060; [1953] 2 All ER 704; 37 Cr App Rep 141.

Venn v Morgan [1949] 2 All ER 562; [1949] WN 353; 65 TLR 571.

Young v Day (1959) 123 JP 317.

Appeal

The Republic appealed to the High Court (Criminal Appeal No 966 of 1976) from an acquittal of Francis Wahome, the respondent on charges under section 46 and 55 (1) of the Traffic Act after a magistrate on a preliminary point of law had ruled in Traffic Case T 14065 that a notice of intended prosecution was ineffective. The facts are set out in the judgment of the court.

CM Gathenji State Counsel for the Republic.

RS Sehmi for the Respondent.