Peres Atieno v Moses Angura Omoro & another

High Court, at Nairobi

July 8, 1985

Trainor J

Civil Suit No 52 of 1976

Civil Practice and Procedure - amendment of pleadings – when amendment to plaint effectively adds a new party – whether such an amendment is an addition of a party or merely an amendment of the plaint – distinction between amendment of plaint and addition or substitution of a new party–– addition of new party occurring after limitation period has expired – provisions of the civil procedure rules order VIA R(1), R(3) & order 1 rule 10.

Limitation of actions – calculation of limitation period – whether time continues to run until amendment adding a new party is ordered – whether a new party can avail himself to the law of limitation

The plaintiff instituted a suit against the dependants shortly before the expiry of the limitation period. Subsequently thereafter the plaintiff filed an amended plaint, containing an amendment effectively adding a new party. The defendant challenged this on the ground that the amendment was not just an amendment to the plaint but an addition of a new party requiring the courts approvals which was not obtained. Further the defendant argued that the addition of the new party came after the expiry of the limitation period, hence the plaintiff had no cause of action.

Held:

1. Where an amendment has the effect of adding a new party, that new party should not be prejudiced.
2. Any defence available to the added party will be open to him as if the proceedings had been first instituted at the time of the granting of the amendment, in this instance the defence of limitation.
3. The limitation period is calculated up to when the proceedings are instituted, in the case of an added party time continues to run until the amendment adding him as a defendant is ordered.
4. The amending order should be treated as if there had been a fresh suit on the date the orders were made. To permit the proceedings to continue against the new party as if the amendment never took place, would be to allow the amendment to have a retroactive effect to the date the original plaint was filed would be prejudicial to the rights conferred on by the law of limitation.
5. There is a distinction as laid out in the civil procedure rules between the substitution or addition of a party to proceedings and the amendment of the pleadings, and the position in the instant case is governed by order 1 rule 10.
6. At the time the name of the new party was added, the plaintiff had lost the right to sue and the only option available was to obtain leave of the court to institute proceedings out of time as laid out in section 27 of the limitation of Action Act (cap 22).

Suit against the 2nd defendant dismissed.

Cases

1. Mangere v Silingi ole Kuriti High Court Civil Suit No 554 of 1973 (unreported)
2. Liptons Cash Registers and Business Equipment Ltd v Hugin (G B) Ltd and Others [1982] 1 All ER 595

Statutes

1. Limitation of Actions Act (cap 22) section 27
2. Civil Procedure Rules (cap 21 Sub Leg) order VIA rule 3, 9, 10

Advocates

1. Mr Hayanga for the Plaintiff
2. Mr Gitau for the 2nd Defendant

Gitau v Attorney General

High Court, at Nairobi December 20, 1982

Trainor J

Civil Case No 1511 of 1979

Tort – malicious prosecution - matters that a claimant should establish to prove malicious prosecution - onus of showing that the defendant had wrongfully set the law in motion against the claimant - meaning of “setting the law in motion” against a person.

Tort – false imprisonment - plaintiff arrested and detained by police officers without justification - plaintiff held incommunicado for 30 hours at police station - whether plaintiff entitled to general and exemplary damages - measure of damages.

Damages - general damages - exemplary damages - for false imprisonment - plaintiff wrongfully arrested and detained by police for 30 hours - measure of damages.

The plaintiff commenced proceedings against the Attorney General on behalf of the Police Department, for assault, battery, false imprisonment, and malicious prosecution.

The plaintiff had been arrested and charged with the offence of being drunk and disorderly to which he had pleaded not guilty and was admitted to bail.

When the case came up for trial, the learned magistrate dismissed the same without calling on the defence.

It was the plaintiff’s complaint that during the time he was in custody he had been mistreated and denied an opportunity to contact his father and that it was his wife who had traced him after making enquiries.

An alcohol test on the plaintiff had given a negative result. Evidence was however given by an inspector of police in charge of Ngong Police Station where the plaintiff had been held to the effect that when he came on duty he was briefed that the plaintiff had been arrested for being drunk and disorderly and being in charge of a motor car while under the influence of alcohol. He therefore ordered that plaintiff should be charged. He signed the charge sheet and he was satisfied that the plaintiff was properly charged.

Held:

1. To succeed on a claim for malicious prosecution the plaintiff must first establish that the defendant or his agent set the law in motion against him on a criminal charge.

2. Setting the law in motion in this context has not the meaning frequently attributed to it of having a police officer take action such as effecting arrest. It means being actively instrumental in causing a person with some judicial authority to take an action that involves the plaintiff in a criminal prosecution. Secondly, the person who sets the law in motion must have done so without reasonable or probable cause.

3. The officer in charge of the police station was the person who had set the law in motion in this case. However, the plaintiff had not established that the police officer was not acting out of a belief of what had been reported to him or that he had acted recklessly or indifferently as to whether there were genuine grounds for prosecuting the plaintiff.

4. The plaintiff had failed to discharge the onus of proving that the setting of the law in motion by the officer had been without reasonable or probable cause. His claim for malicious prosecution fails.

5. The behaviour of the two police officers who wrongfully assaulted, battered and falsely imprisoned the plaintiff was oppressive, arbitrary and unconstitutional.

6. For the false imprisonment, the plaintiff was entitled to Kshs 25,000 in damges and Kshs 10,000 as exemplary damages.

Claim for malicious prosecution dismissed

Cases

1. Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367; [1964] 2 WLR 269

2. Cassell & Co v Broome [1972] AC 1027; [1972] 2 WLR 645; [1972] 1 All ER 801; 116 SJ 199

Statutes

No statutes referred.

Ole Meikoki v Ole Sirere

High Court, at Nairobi September 16, 1981

Trainor J

Civil Case No 3283 of 1980

Land - agreement for sale of land - transfer forms and the application for consent forms duly signed re-execution later required - refusal by vendor to re-execute - requirement for reexecution prompted by a letter without authority – application for an order for specific performance of agreement made.

The plaintiff entered into an agreement to buy land from the defendant. The defendant executed the application for consent and transfer forms. When the plaintiff tendered the documents for registration. The registration was denied because there was a letter from the Chief Land Registrar requiring that all land documents executed by thumbprint be done using special ink. The plaintiff subsequently prepared new documents for execution by the defendant, who then refused to re-execute them unless he was paid a further amount. The plaintiff as a result has made an application for an order for specific performance of the contract.

Held :

1. The letter issued requiring special ink was without a legal basis and the transfer should have been registered.

2. In this case registration ought to have been ordered without suing the plaintiff, by questioning the authority of the Chief Land Register’s letter and instituting proceedings against the Registrar.

3. The plaintiff is declared lawful owner and the transfer and deed be prepared accordingly by the Registrar.

4. No damages awarded as no evidence was given to this regard.

5. (Per Curiam) The Chief Land Registrar had no authority to issue the letter that he did and for this reason, the Registrar should have been the defendant in mandamus proceeding. If such proceedings had been instituted, it might well have been that registration would have been ordered without the necessity of suing the plaintiff; indeed had the advocates for the plaintiff taken the trouble to question the authority of the Chief Land Registrar it is likely that no proceedings at all would have been necessary.

Cases

No case referred to.

Statutes

No statute referred to.