Republic v Municipal Council of Mombasa ex parte

Mazrui & 2 others

High Court, at Mombasa October 24, 2000

Shah, Commissioner of Assize

Miscellaneous Application 328 of 1999

Judicial Review – certiorari – six months limitation period – when six months begin to run – characteristics of a decision for purposes of the orders of certiorari.

The applicants filed a notice of motion dated 28th December 1999 seeking an order of certiorari to quash the decision by the respondents to contract the interested party the responsibility of providing and managing certain vehicle parking facilities within the municipality of Mombasa as stipulated in Gazette Notice No 3514 of 1999 appearing in the issue of Kenya Gazette of 25th June 1999. The applicants had received leave on 7th December 1999 to so file these proceedings.

The interested party filed another notice of motion dated 14th January 2000 seeking to set aside the orders granting leave on the ground that more than six months had elapsed from the date the decision sought to be quashed was made. The issue for determination was whether the decision was deemed to have been made on the date of the minutes or upon gazettement.

Held:

1. By virtue of section 9(3) of the Law Reform Act, (cap 26) leave to apply for an order of certiorari shall not be granted unless the application for leave is made within six months after the date of the judgment, order, decree, conviction or other proceedings sought to be quashed.

2. Statutory restrictions on judicial remedies should be given the narrowest possible construction, sometimes even against the plain meaning of the words.

3. A “decision” for purposes of section 9(3) of the Law Reform Act must have certain characteristics, namely:

a) It must be a decision in the public domain;

b) It must be a decision upon notice to all affected parties, if not the general public;

c) It must carry the incidence of finality, it cannot be provisional, tentative or revocable or subject to recall by the maker;

d) The decision must not only be lawful but also legitimate.

4. Time for purposes of a decision of a local authority should thus begin to run from the date of gazettment of the decision.

5. The giving of notice is an integral part of any decision making process and without notice, there is no decision.

Application dismissed.

Cases

1. Sinel, Mokompo Ole v County Council of Narok Miscelleneous Civil Case No 361 of 1994

2. Hoffmann La Roche (F) & Co AG v Secretary of State for Trade and Industry [1974] 2 1128; [1975] AC 295; [1974] 3 WLR 104

3. Boddington v British Transport Police [1998] All ER 203; [1998] 2 WLR 639

4. Smith v East Elloe Rural District Council [1956] WLR 888; [1956] 1 All ER 855; [1956] AC 736

5. Anisminic v Foreign Compensation Commission [1969] 1 All ER 208; [1969] 2 AC 147; [1969] 2 WLR 163

6. Dodhia v National & Grindlays Bank [1970] EA 195

7. Caltex Oil (Kenya) Ltd v Owners of the Motor Vessel “Lillian S’” [1989] KLR 1

8. Griffiths v Secretary of State for the Environment [1983] 1 All ER 439

Texts

1. Hailsham, Lord et al (Eds) (1973-87) Halsbury’s Laws of England London: Butterworths 4th Edn Vol VI (1) para 167

2. Wade, H W R; Forsyth, C F (Eds) (1994) Administrative Law Oxford: Clarendon Press 7th Edn p 729

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XX rule 1; order LIII rule 2

2. Law Reform Act (cap 26) sections 8, 8(2); 9; 9(3)

3. Local Government Act (cap 265) sections 143(6); 143(6)(b); 148

Advocates

Mr Swaleh for the Interested Party

Mr Mburu for the Respondent

Ngugi v Gatonye

High Court, at Nairobi March 4, 1994

Shah J

Civil Case No 191 of 1994

Civil Practice and Procedure - injunction – application for – grounds for granting an injunction – the principles applicable – where one is likely to suffer irreparable damage that cannot be compensated by damages – where balance of convenience lies on his side – whether injunction should be granted on this basis.

By her application dated 17.1.1994, the plaintiff sought an injunction restraining the defendant from evicting her from LR No Nganda/Mutomo/31 and from interfering with the plaintiff’s possession of the suit premises until the final determination of the suit. The plaintiff also sought orders to stop the defendant from selling, transferring, mortgaging or in any way dealing with the said property until further orders of the court. The plaintiff, a daughter in law of the applicant stated that her husband and the defendant had constructed a building and were also partners in business in a firm called “Murimi Hardware & Farmers Store”.

The defendant on his part stated that he bought the suit land in 1971, started building in 1974, when his son was in school. That he thereafter allowed his son to occupy the premises in question while he looked for a suitable place for his family. He further alleged that he had agreed to let his son help him run the business of Murimi Hardware & Farmers Store’ which he stated that he started in 1975.

Held:

1. The relationship between father and son was based on a kind of relationship which would or did give rise to a partnership in business as well as property.

2. If a father allows a son to build a house on the father’s property and allows him to stay there, the son gets a right to live there.

3. Proprietory estoppel can be used for founding a cause of action.

4. If the plaintiff and the defendant’s three grand children are thrown out of suit premises, they will suffer irreparable harm that cannot be atoned by damages. The balance of convenience also lay on the side of the plaintiff.

Application allowed.

Cases

1. Nurdin Bandali v Lombank Tanganyika Ltd [1963] EA 304

2. Re Whitehead, Whitehead v Whitehead [1948] NZLR 1066

3. Dillwyn v Llewelyn [1861 - 73] All ER Rep 348;

4. Inwards v Baker [1965] 1 All ER 446; [1965] 2 QB 29; [1965] 2 WLR 212

5. Chase International Investment Corporation & another v Laxman Keshra & others [1976 - 80] 1 KLR 891

6. Crabb v Arun District Council [1975] WLR 847; [1975] 3 All ER 865; [1976] Ch D 179

7. Kenya Canners Ltd v Doge [1989] KLR 127

Statutes

No statutes referred.

Advocates

Mr Kingara for the Applicant

Mr Njeru for the Respondent/Defendant

Credit Corporation Ltd v Ogutu & another

High Court, at Nairobi February 28, 1994

Shah J

Civil Case No 1946 of 1983

Civil Practice and Procedure – service of summons - substituted service - stay of execution and setting aside of ex parte judgment – application for – due to alleged non service of summons – procedure to be taken when serving summons – where proper steps are not taken to establish defendant cannot be found – whether it’s proper to affix summons on the outer door of the defendant’s premises when no steps have been taken to establish the defendant’s whereabouts.

By her application dated 19th January, 1994, the second defendant applied for 3 orders namely, that the execution of a decree against her should be stayed, that exparte judgment entered against her on 28th March, 1984 should be set aside and that she should be allowed to file her defence. The application was based on the issue of alleged non-service of summons upon her. The authorised court process server was said to have gone to serve the defendants with summons at Gachie, Thigiri Road, Thigiri Rise, Nairobi, and on enquiring from a house servant the whereabouts of defendants, and being told they were to be back late in the evening, they affixed two duplicate copies of the plaints on the outer door of the defendants’ dwelling house in presence of the house servant.

Held:

1. Whenever practicable, service of the summons should be personal service. Summons shall also be served on each defendant.

2. Where a defendant cannot be found, service may be effected on an adult member of the family of the defendant who is residing with him.

3. If despite using all due and reasonable diligence, the defendant cannot be found, service may be made by affixing a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides.

Application allowed.

Cases

1. Waweru v Kiromo [1969] EA 172

2. Erukana Kavuma v Metha [1960] EA 305

3. Pirbhai Lalji & Sons Ltd v Hassanali Devji [1962] EA 306

4. Patel v EA Cargo Handling Services [1974] EA 75

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order V rules 8, 9, 12, 14

Loice Wanjiru v Grace Wanjiku Mwangi

High Court, at Nairobi April 5, 1990

Shah CA

Civil Case No 155 of 1988

Civil Practice and Procedure - summons – service of summons – proper mode of service - duty of process server to make attempts to serve the summons on the defendant - when substituted service may be allowed.

Civil Practice and Procedure – appearance – consequences of entry of unconditional appearance where service of summons was irregular - whether appearance can cure irregular service.

Evidence –– admissibility of evidence – admissibility of evidence of past criminal conviction as proof of guilt in civil proceedings turning on the same facts - Evidence Act (cap 80) section 47A.

The defendant brought an application to set aside an interlocutory judgment entered against her and the assessment of damages consequent thereon. She stated that she had not been served with summons to enter appearance and that her advocate had entered appearance without her instruction. The defendant further denied assaulting the plaintiff. However the defendant had been convicted in criminal proceedings of the offence of causing grievous bodily harm to the plaintiff.

Held:

1. The mode of service of summons employed was not proper. The process server was bound to make at least three attempts to serve the summons on the defendant. Failing that, if he could not find the defendant at home he could then serve the summons on an adult member of the defendant’s family.

2. The irregularity of service was cured by the entry of unconditional appearance. The defendants application to set aside the judgment on grounds of non-service/bad service therefore fails.

3. The defendant’s conviction for the offence of causing grievous bodily harm to the plaintiff was evidence which, under section 47A of the Evidence Act (cap 80), entitled this court to find the defendant liable since the civil claim arose out of the same facts.

4. The court has an almost unfettered discretion to set aside ex parte judgment. The defendant had not been candid and the court was satisfied that the interlocutory judgment entered against her was proper.

5. However the court would set aside the assessment of damages and allow the defendant to re-open the issue as her advocate may not have informed her of the date of the assessment.

Interlocutory judgment to stand, assessment of damages set aside.

Cases

1. Maina v Mugiria [1983] KLR 78; [1982-88] 1 KAR 171

2. Waweru v Ndiga [1982-88] 1 KAR 210

3. Patel v EA Cargo Handling Services Ltd [1974] EA 75

4. Shah v Mbogo [1967] EA 116

5. Shabir Din v Ram Parkash Anand (1955) 22 EACA 48

Statutes

1. Penal Code (cap 63) section 234

2. Evidence Act (cap 80) section 47A

3. Civil Procedure Rules (cap 21 Sub Leg) order IX rule 2(4); order IXA

rule 10

Advocates

Mr Mwaura for the Applicant.

Doge v Kenya Canners Ltd

High Court, at Nairobi

October 28, 1988

Shah CA

Civil Case No 1832 of 1980

Equity- equitable estoppel – promissory estoppel - estoppel by conduct – estoppel acquiescence – expenditure on another’s land in expectation of an interest therein – whether it is - whether person entitled in equity - whether these principles of equitable estoppel applicable in Kenya - equitable that such a person ought to become registered proprietor.

Equity – proprietory estoppel – equitable principles vis a vis provisions of the registration of Titles Act and the Transfer of Property Act – whether sanctity of title under the Registered Land Act can be taken away by equity.

Land law – sanctity of title – registration of titles act – whether equitable principles can affect title under the Registered Land Act.

Land Control Board - consent – requirement of – when controlled transactions require consent – meaning of transaction – whether a promise is a transaction within the meaning of the act.

Employment law – termination of – proof of wrongful dismissal – burden of proof – burden on employer to prove upon a balance of probability that the employee was dismissed for good cause.

The plaintiff was an employee of the defendant. The plaintiff with consent of the defendant was permitted to occupy the subject house and land surrounding it on the understanding that legal disposal of the same would be made at a later date. The plaintiff thereafter acquiesced in and allowed the defendant to spend moneys to improve the house and farm.

The defendant terminated the plaintiff’s services, therefore requiring him to vacate the house. The defendant contended that his occupation of the house was independent of and not conterminous with his contract of services with the plaintiff.

The defendant argued that equitable doctrines apply, in his favour of, that promissory estoppel bars the plaintiff from taking away land in possession of the defendant.

It was argued on behalf of the plaintiff that an interest in land cannot be coupled with an equity, since it would be contrary to the statutes dealing with creation of interests in land in Kenya; as such interests can only be created under the Registration of Titles Act.

Held:

1. The equitable doctrines apply generally unless excluded by statute.

2. If the Indian Transfer of property Act precludes application of equity only then the court is precluded from invoking the doctrines of equity in aid of a litigant.

3. The Registration of Titles Act (Cap ) does not disentitle a party from acquiring land through equitable estoppel, neither does the Transfer of Property Act of Indias as applied in Kenya.

4. Although the interest of the plaintiff is leasehold there is nothing in the Registration of Titles Act barring the defendant from obtaining title.

5. It is a principle of justice and equity that when a man by his words or conduct has led another to believe that he may safely act on the faith of them and the other does not act on them, he will not be allowed to go back on what he has said or done when it would be unjust or inequitable for him to do so.

6. (Obiter) The harshness of the Land Control Board Act has been demonstrated time and against in our courts. In many instances the Act has been used by unscrupulous venders as an instrument of fraud and the Act has not, in many instances issued the purpose it had originally intended to.

7. If a transact is void for lack of consent of the relevant land control Board it is void and there is nothing the courts can do to help the person who entered into such transaction made void by the provisions of the act. However in this case there is no transaction as in envisaged by the Act. In this case there was a promise to do something in future when the occasion arose.

8. The alleged lack of consent does not initiate the promise the consent issue had not arisen but would in the future.

9. It is for an employer to prove upon a balance of probability that the employee was dismissed for a good cause. This burden was not discharged by the plaintiff.

Judgment for the defendant.

Cases

1. Doge v Kenya Canners Limited [1985] KLR 942

2. Century Automobiles v Hutchings Blemer Ltd [1965] EA 304

3. Nurdin Bandali v Lombank Tanganyika Limited [1963] EA 304

4. Commissioner of Lands v Hussein [1968] EA 585

5. Whitehead v Whitehead & others (1948) NZLR 1066

6. Dillwyn v Llewelyn [1861 - 73] All ER 384

7. Thomas v Thomas (1956) NZLR 785

8. Inwards v Baker [1965] 1 All ER 446; [1965] 2 QB 29; [1965] WLR212

9. Chase International Investment Corporation & Another v Laxman Keshra & others [1978] KLR 143

10. Crabb v Arun District Council [1975]3 WLR 847; [1975] 3 All ER 865; [1976] Ch 179

11. Knight v East African Airways [1975] EA 165

Texts

Spencer Bower & Turner’s Second Edition of Book, Estoppel by Representation paragraph 289

Statutes

1. Indian Transfer of Property Act 1882 section 108B

2. Government Lands Act (cap 280) section 99

3. Registration of Titles Act (cap 281)

4. Companies Act (cap 486) section 34(1)(b)

5. Land Control Act (cap 302) section 6

Advocates

Mr Muthoga for the Defendant

Mr Le Pelley for hte Plaintiff

Philip v Republic

High Court at Nairobi

October 21, 1988

Mbito Ag J, Shah CA

Criminal Appeal No 240 of 1988

(Appeal from conviction and sentence of the Resident Magistrate’s Court at Thika, JBN Muturi Esq)

Criminal Law – causing death by dangerous driving – nature of the offence - whether custodial sentence proper for such offence – Traffic Act (cap 403) section 46.

Sentencing– severity of sentence – custodial sentence for offence of causing death by dangerous driving – accused aged 26 years and a first offender - whether such sentence proper – Traffic Act (cap 403) section 46.

The appellant was charged in a magistrate’s court with the offences of causing death by dangerous driving, failing to report an accident, using an unlicensed motor vehicle and failing to renew his driving license contrary to the Traffic Act (cap 403) sections 46, 73, 15 and 30(4) respectively. He was convicted on all counts and given a custodial sentence.

The appellant was aged 26 years and he was a first offender. He appealed to the High Court against his conviction and sentence on the first count on the ground that he had not pleaded guilty to it.

Held:

1. From the record, it was clear that the trial magistrate had followed the correct procedure for recording a plea of guilty in that he found the appellant guilty after recording all the facts stated and after the appellant accepted the correctness of those facts.

2. The offence of causing death by dangerous driving is not an ordinary type of crime; people who commit it do not have propensity for it and it is not committed for gain, revenge or lust or to emulate other criminals.

3. The interests of justice and the public would be properly served if the appellant’s custodial sentence was reduced to the extent of whatever period he had served but he was to be disqualified from holding or obtaining a driver’s licence for three years.

Appeal against conviction dismissed, appeal against sentence allowed.

Cases

Orweryo Missiani v R [1979] KLR 285

Statutes

Traffic Act (cap 403) sections 15, 30(4), 46, 73

Advocates

The Appellant in Person

Mr Mugo for the Respondent

National Drycleaners Ltd & another v Ndune

High Court, at Nairobi June 23, 1987

Shah CA

Civil Appeals No 79 & 80 of 1987

Landlord and Tenant – stay of execution – whether Business Premises Rent Tribunal empowered to grant stay of execution of its own orders – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) section 12.

Court – meaning of “Court” under the Civil Procedure Act (cap 21) – whether the Business Premises Rent Tribunal is a Court – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301).

Civil Practice and Procedure – stay of execution – Civil Procedure Rules order XLI rule 4(1) – court to which application for stay may be made – whether Business Premises Rent Tribunal a “Court” – whether Tribunal empowered to grant stay of its own orders.

The appellants, who had been ordered by the Business Premises Rent Tribunal to vacate certain shops occupied by them in Nairobi, applied to the Tribunal for a stay of execution of the order. In its ruling, the Tribunal granted a stay to enable the applicants to appeal against its decision to the High Court

Held:

1. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) section 12 empowered the Tribunal to vary or rescind any order made by it under the Act. In their ordinary meaning, the words “vary” or “rescind” as used in the Act could not include the words “stay pending appeal”.

2. The words “vary or rescind” are used in section 12 in a restricted sense, in that the Tribunal can possibly vary or rescind its order or determinations in the sense that the High Court can review its orders or judgments under Order XLIV of the Civil Procedure Rules. There was nothing else in the Act which empowered a Tribunal to grant stay pending appeal from the Tribunal to the High Court.

3. Under the Civil Procedure Rules Order XLI rule 4(1), an application for stay pending appeal ought to be made in the first instance to the “Court” from whose decree or order the appeal is taken. “Court” is defined in the Civil Procedure Act (cap 21) as the High Court or a subordinate court acting in the exercise of its civil jurisdiction.

4. A Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is not a subordinate court. It is a tribunal established to exercise a special jurisdiction conferred by the Act.

Cases

1. Interocean Trading Co v Esmail Adamali & 2 others Civil Application No NAI 90 of 1985 (unreported)

2. Vibhakar v Parani & others H Miscellaneous Civil Case No 106 of 1983 (unreported)

3. Chogley v Bains Civil Appeal No 67 of 1952 (unreported)

4. Butt v Rent Restriction Tribunal [1982] KLR 417

5. Wilson v Church (No 2) 12 Ch D (1879) 454

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XLI rule 4(1)

2. Landlord and Tenant (Shops, Hotels and Catering Establishments Act (cap 301) sections 7(1)(f),(g); 12(1); 12(1)(c)

Advocates

Mr Sevany for the Appellants.

Mr Gautama for the Respondent.

[Ruling] Company Law-winding-up- petition to wind up the Respondent company-application opposed on the ground that the verifying affidavit was not filed in time and that there were irregularities in the substance of some paragraphs-whether an affidavit is a pleading- whether enlargement of time within which to file the affidavit could be granted Rule 31 and section 201 of the Companies Act