Ngobit Estate Ltd v Violet Mabel Carnegie

Court of Appeal, at Nairobi

April 23, 1982

Madan, Miller & Potter JJA

 Civil Appeal No 57 of 1981

Land Control Board - lease over controlled land - agreement to procure and execute a lease - lease covering land under the Land Control Act - whether agreement for lease constituted a controlled transaction within the meaning of the Land Control Act (Cap 302) - application for specific performance of such a lease.

Land Control Board - application for consent - application within prescribed period - failure to apply within the prescribed period - effect of - provisions of the Land Control Act - effect of the Statute Law (Repeal and Amendments) Act 1980 on the provisions thereof - retroactive effect - whether a statute can have retroactive effect by implication.

Injunction - application for - grounds for granting - factors to be taken into consideration.

Statutes - interpretation of statutes - principles of statutory interpretation - retroactive application of amendments to statute - amending statute not stated to apply retroactively - whether principles of statutory interpretation applicable where statute is clear and unambiguous - whether amendments to apply retroactively - Statute Law (Repeal and Miscellaneous Amendments) Act, 1980 - Land Control Act (Cap 302).

The parties to this appeal entered into an agreement for sale of land. The transaction included an agreement for a lease to be executed in favour of the respondents. The subject land was agricultural land and fell within the Land Control Act. The application for consent was not made within the stipulated period, but obtained after nine (9) months. The appellants threatened to evict the respondents who had, acting upon the agreement, settled on the subject property. The respondents obtained an injunction restraining the appellants from evicting them. The appellants appealed against the grant of the injunction and it was argued that the agreement for lease was a controlled transaction and was null and void for want of consent. The question before the court was whether or not the late consent was validly given, whether appearance of all parties before the Land Control Board constituted a new agreement and also whether the injunction was properly granted considering the alleged nullity of the transaction.

Held:

1. The new proviso to Section 8 of the Land Control Act could not be applied to this suit because an amendment or change in law can only have retroactive effect if expressly declared by the legislature or if it is so by necessary intendment. No express declaration in this case was made and therefore it could not be implied.
2. The agreement for a lease constituted a controlled transaction and the failure to obtain Land Control Board consent within the stipulated three months rendered the agreement null and void.
3. Even if the application was deemed to have been made on the date when the application reached the commissioner of lands, the board did not determine it within a period of three months after the application was made and therefore, by law, it was deemed to have been refused at the expiry of the three months. The only remedy then available would have been to lodge an appeal against the refusal and no such appeal was made.
4. As the grant of the injunction in this case and the subsequent extension of the same was done with regard to the new provisions of the Land Control Act that were not in force at the material time, the injunction was wrongly granted.
5. As the agreement for a lease in favour of the respondent was null and void, the injunction was granted in favour of a party with no prospect of success and, consequently, it could not be upheld.
6. (Obiter Potter JA) “The case of the respondent’s unhappily founders on the merciless rock of the Land Control Act. In the appeals which come before this court in which the Land Control Act is involved it is invariably the case that the Act is not being relied upon by a party in order to fulfil the intended purpose of the Act, but by a vendor of an interest in land in order to deprive the purchaser of the benefit of his contract ... the harshness of the Act has been ameliorated by amendments which came into effect on December 24, 1980 (Act No 13 of 1980). In this case, however, there is no escaping the application and effect of the Act as it was before the amendments took effect.”
7. (Obiter Potter JA) “The function of the judiciary is to interpret the statute law, not to make it. Where the meaning of a statute is plain and unambiguous, no question of interpretation or construction arises. It is the duty of the judge to apply such a law as it stands. To do otherwise would be to usurp the legislative functions of parliament.”
8. (Obiter Madan JA) “This case once again demonstrates the tyranny which the draconian provisions of the Land Control Act could inflict upon an innocent party. In Leonard Njonjo Kariuki v Njoroge Kariuki alias Benson Njono Civil Appeal No 26 of 1979 (unreported) we said that it vividly illustrated the injustice which so often flowed from the operation of the Land Control Act. I doubt very much that the plaintiff’s would have agreed to sell their farm but for the lure of the lease together with the purchase price. Equity will no longer stand aside and weep. The 1980 amendment has taken a great deal of harshness out of the Land Control Act.”

 Editorial Note:

The relevant sections at the material time of the case were Section 6(1 & 2), Section 8 and 9(1) of the Land Control Act (Cap 302). These provisions changed (before the case reached conclusion) via the Statute law (Repeal and Miscellaneous Amendments) Act 1980, by the addition of a new provision to Section 8 of the Land Control Act. The new amendments allowed parties to a controlled transaction a period of six months instead of three months within which to apply for consent. It also empowered the High Court to extend that period even if the application was made after the period of six months had expired. It also repealed the provision that the consent will be deemed to have been refused if no determination of the application is made within three months.

Cases

1. Croxford v Universal Insurance Co [1936] 2 KB 253 at page 280 Referred
2. Direct United States Cable Company v Anglo American Telegraph Company [1876-7] 1 AC 394 at page 412 Referred
3. Young v Corporation of Leamington (1882) 8 QBD at page 579 Applied
4. Maluki v Oriental Fire and General Insurance [1973] EA 162 Referred
5. Ethan Karuri v Mabuti Gituru and Others CA 25 of 1980 (unreported) Applied
6. Lifico Trust Registered and Others v TM Patel Civil Appeal No 18 of 1979 (unreported) Distinguished
7. Leonard Njonjo Kariuki v Njoroge Kariuki alias Benson Njono, Civil Appeal No 26 of 1979 (unreported) Referred

Statutes

1. Arbitration Act (Cap 49)
2. Land Control Act (Cap 302) Sections 6(2); 8; 9(2)
3. Land Control Regulations (Cap 302 Sub Leg) regulation 2(1)
4. Statute Law (Repeal and Miscellaneous Amendments) Act, 1980 (Act No 13 of 1980) Sch

 Advocates

Mr Couldrey for Respondents

Onserio v Republic

Court of Appeal, at Nairobi

February 23, 1982

Madan, Miller & Potter JJA

Criminal Appeal No 117 of 1981

(Appeal from the High Court at Kisumu, Scriven J)

Evidence – corroboration – need for – evidence of a child of tender years.

Evidence – of a child - of tender years - need for the court to inquire on understanding of the child before the reception of evidence – provisions of the Oaths and Statutory Declarations Act (cap 15).

The appellant was charged and convicted for stealing contrary to section 275 of the Penal Code (cap 63). The appellants appeal was summarily rejected, hence this appeal.

Held:

1. Where a witness appears to be of tender years, the court should inquire whether the child was capable of understanding the nature of an oath and whether he was possessed of sufficient intelligence to justify the reception of his evidence though not given on oath.
2. An accused can only be convicted on the evidence of a child of tender years if corroborated by other material evidence in support thereof implicating him as set out in section 124 of the Evidence Act. In this instance the evidence of the child was corroborated.

Cases

1. Ombena and Another v Republic Kisumu Criminal Appeal No 36 of 1981; [1981] KLR 450

Statutes

1. Penal Code (cap 63) section 275
2. Criminal Procedure Code (cap 75) section 352(2)
3. Oaths and Statutory Declarations Act (cap 15) section 19(1)
4. Evidence Act (cap 80) section 124

Mutonyi and Kamande v Republic

Court of Appeal, at Nairobi

January 22, 1982

Madan, Miller & Potter JJA

Criminal Appeal No 92 of 1981

Criminal law - corruption - Section 3(1) of the Prevention of Corruption Act - soliciting - receiving - elements of corruption.

Evidence - expert evidence - meaning of expert witness - competence of witness - assessment of reliability of expert evidence.

Evidence - corroboration - definition of corroboration - when evidence of corroboration implicates the accused - effect of.

The complainant gave evidence that the two appellants, who were police officers, arrived at the scene of an accident in which he had been involved and solicited a bribe. The complainant’s vehicle was towed away and the two appellants persisted in their demand for money. The complainant made a report to the CID officers who arranged for him to set up the appellants for arrest. On the day that he had arranged to give some money to the appellants, the complainant was given currency notes by the CID officers dusted with a forensic powder with the serial numbers noted. After the complainant had met the appellants and their two accomplices in a car and handed them the money, they were arrested by the officers. One of the notes bearing the powder were found on the car and there was expert evidence purporting to show that there were traces of the same powder found on the appellants.

The appellants were convicted in a magistrate’s court with two counts of corruption, one count of soliciting and one of receiving. The appellants had given evidence denying the charges and stated that a conviction would be unsafe as there had been no corroboration of the complainant’s evidence. The trial magistrate stated that he did not agree with that submission and that he had no doubt as to the truthfulness of the complainant. The appellants’ appeals to the High Court were dismissed and they appealed to the Court of Appeal

 Held:

1. The necessity for corroboration in corruption cases in Kenya has no effect as a rule of law. Where a court has carefully directed itself as to the desirability of corroboration and the danger of convicting upon the uncorroborated evidence of a single witness, it may nevertheless convict if it is certain of the truth and reliability of that evidence.
2. The magistrate by referring to pieces of evidence independent of that of the complainant as corroboration and by failing to say which piece implicated which accused, had overlooked an important element in the definition of corroboration and this is; that it affects an accused person by connecting him or by tending to connect him with the crime and confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it.
3. Expert evidence is given by a person skilled and experienced in some profession or special sphere of knowledge from facts reported to him or discovered by him by tests, measurements and the like. The expert evidence in this case was unsatisfactory and the expert witness had failed to prove his competence.
4. Although it would be unfair to the appellants to treat any of the socalled corroborative evidence as implicating them, the lower courts would nevertheless not have failed to find the appellants guilty if they had properly directed themselves as to corroboration.

Appeals against conviction dismissed.

Cases

1. Dusara and Khimji v Republic, Criminal Appeal No 59 of 1980 (unreported) Followed & Approved
2. Republic v Manilal Ishwerlal Purohit (1942) 9 EACA 58, 61 Applied & Approved
3. Davie v Edinburgh Magistrates [1933] SC 34, 40 Applied & Followed

Texts

Cross R, Cross on Evidence, Butterworths: London, 5th Edn (1979) p 446

Statutes

1. Evidence Act (Cap 80) Section 48

2. Prevention of Corruption Act (Cap 65) Section 3(1)

Commercial Bank of Africa Ltd v General Motors Kenya Ltd

Court of Appeal, at Nairobi

January 14, 1982

Miller, Madan & Potter JJA

Civil Appeal No 45 of 1981

Appeal - record of appeal - contents of the record of appeal - failure to include a copy of the pleadings in the record - preliminary objection raised - supplementary record of appeal lodged to correct omission - whether there is a conflict between the mandatory provisions of rule 85 and the optional ones in rule 89(3) of the Court of Appeal Rules - exercise of the court’s discretion under rule 4 of the Court of Appeal Rules - sufficient reason within the meaning of rule 4 of the Court of Appeal Rules.

The appellant omitted to include a copy of the pleadings in the record of appeal. The respondent raised a preliminary objection that the appeal was incompetent for failure to comply with rule 85 of the Court of Appeal Rules. The respondent lodged a supplementary Record of Appeal to cure the omission. In so doing the appellant relied on rules 89(3) and gave the reason for the omission as being a mistake and oversight.

Held:

1. The requirements of rule 85 constitutes a condition precedent to the propriety of the Record of Appeal at the time of lodging the appeal.
2. The provisions of rule 85 are mandatory and the conditions for exemption are found in rule 85(3) and are discretionary.
3. The preliminary objection to the competence of the Record of Appeal was proper. The plaint was part of the pleadings for the purposes of rule 85(1)(c) and was a necessary document for the purpose of the appeal and for this reason the preliminary objection would succeed as the appeal was incompetent.
4. The lodging of the supplementary record did not cure the defect in the record. The right of the appellant under rule 89(3) to lodge a supplementary record was a right to lodge further and additional documents for the proper determination of the appeal and not a right to lodge documents which should have been lodged within the stipulated time as part of the record.
5. It is incompatible with proper interpretation of rule 89 and 85 to treat non-compliance with one of the compulsory components with deterrent consequences and allow non-compliance with another of those mandatory requirements.
6. The object of rule 89(3) is to relax the mandatory provisions of rule 85 but it is mainly for the purpose of obviating inability and delay in the path of a respondent as to knowledge of the appellate contentions he is being called upon to contest.
7. The court can exercise its discretion, under rule 4, but only where there is sufficient reason. In this case, the reason given was “oversight” and it did not constitute sufficient reason within the meaning of rule 4 of the Court of Appeal rules. (Refer to the Editorial Note on page 40)
8. (Obiter Madan JA) There was a lapse and an error on the part of the appellant’s advocate, in the failure to bring the application under rule 4 within reasonable time after the notice of preliminary objection was served on him. The appellant’s advocate adopted an untenable attitude that he was entitled to bring the omitted document on to the Record of Appeal by means of a supplementary record under rule 89(3).
9.  (Obiter Potter JA) To allow an application for extension of time on the ground of oversight of the advocate would be a radical departure from the position of this court on what constitutes a sufficient reason.

Appeal struck out without costs.

Cases

1. Kiboro v Posts and Telecommunications Corporation [1974] EA 155 at p 156 Applied & Approved
2. Monk v Redwing Aircraft Company Limited [1942] 1 KB at p 182

Approved Statutes

1. Court of Appeal Rules (Cap 9 Sub Leg) rules 4, 81(1), 85(1)(c), 85(1)(h), 85(3), 85(5), 89(3)
2. Civil Procedure Rules (Cap 21 Sub Leg) Order IXA rule 3(2)

Advocates

Mr R Kwach for Appellant

Mr Sandhu for Respondent

Musa v Life Agencies International (Kenya) Ltd

Court of Appeal, at Nairobi December 16, 1981

Madan, Miller & Potter JJA

Civil Appeal No 13 of 1981

Company Law - winding-up - whether winding up by court start upon the presentation of the petition - winding up order results in cessation of the directors - to act on behalf of the company - appointment of a receiver - receiver appointed out of court the management and control of the company is taken over by them.

Charge - delay to register a charge may render it void ab initio.

Judgment - discretion - whether the judge rightly exercised his discretion in granting orders sought - the exercise of a judge’s discretion ought not to be lightly interfered with by a Court of Appeal save, only when error of judgement has occurred resulting in a wrong decision.

A serious dispute arose between the only two directors and shareholders of the company leading to dead lock, which made it impossible for them to carry on the business of the company jointly. Despite the existence of serious conflict of facts the trial judge proceeded without hearing any evidence to resolve the conflict in the usual manner of first evidence in-chief, then cross examination, and if necessary re-examination. On appeal the parties agreed on remission for retrial.

Held :

1. Where there are serious conflicts of facts and yet the Judge proceeded with a full hearing to reach a decision as to which facts are correct, the court has no choice but remit the petition back to the High Court for a hearing de nevo by another judge.

2. Where the court is unable with reasonable satisfaction to the court decide on the truth of the facts, it is better to proceed to full hearing.

Cases

No case referred to.

Statutes

No statute referred to.

Advocates

Satish Gautama Esq for Appellants

Messrs Machira & Co Advocates for Respondents

F. N v Republic

Court of Appeal, at Kisumu November 30, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 71 of 1981

Children - under age accused (sixteen years) of murder – charge reduced to manslaughter - application of provisions of the Children and Young Persons Act Cap 141 - failure to alert the court of the age of accused.

The appellant aged sixteen years, threw a spear at the deceased in the throat killing him instantly. The appellant through his advocate accepted the facts as stated by the prosecution and pleaded guilty to manslaughter.

The trial judge was not alerted as to the age of the accused by both the prosecution and the accused’s counsel. The judge accepted his plea to the offence of manslaughter. He was convicted accordingly and sentenced to three years imprisonment.

Held :

1. Where it is established that the accused person was below sixteen years old at the commission of the offence, the Judge must take into consideration the provisions of the Children and Young Persons Act. If it is not clear from the record whether the Judge did take account of the Act when sentencing the appellant.

2. Sentence set aside and the accused released from the prison with immediate effect.

Cases

No case referred to.

Statutes

Children & Young Person’s Act (Cap 141)

Wambura v Republic

Court of Appeal, at Kisumu November 30, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 53 of 1981

Appeal - summary rejection - practice to be followed in considering rejection of appeal.

The appellant was charged with stealing stock contrary to Section 278 of the Penal Code and his appeal to the High Court was rejected summarily.

Held :

1. Summary rejection should not be used when a question of identification of stolen property is raised, unless it is so clearly a frivolous ground of appeal as to be totally in-effective.

2. The Judge erred in summarily rejecting the appeal. The power of summary rejection of criminal appeals must follow the practice set out in Obiri v Republic Criminal Appeal No 58 of 1981.

Appeal allowed, conviction quashed.

Cases

Obiri v Republic (Criminal Appeal No 58 of 1981)

Statutes

1. Criminal Procedure Code (Cap 75) Section 352(2)

2. Penal Code Section 278

Editorial Note

Section 278 of The Penal Code has since been repealed but principles set out on summary rejection are still relevant.

Obiri v Republic

Court of Appeal, at Kisumu November 30, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 58 of 1981

Appeal - summary rejection of appeal under Section 352(2) of the Criminal Procedure Code - summary rejection where it appears that the grounds of appeal raise valid points of law which can only be determined at a hearing - when can a court exercise its power of summary rejection.

Evidence - accomplice evidence - definition of an accomplice.

The appellant was convicted of stealing by the trial court. His appeal to the High Court to summarily rejected and he subsequently made this second appeal.

Held :

1. Where the memorandum of appeal raises valid points of law, the power of summary rejection of an appeal must not be exercised as such points can only be determined at a full hearing.

2. It is in the interest of justice to have a hearing where points of Law are raised.

3. The power of summary rejection should be exercised very sparingly, and only in the clearest of cases such as where there is an equivocal plea of guilty by the accused.

4. The object of the power of summary rejection is to save time and when this power is exercised in non clear cases this object is defeated.

5. An accused person who was at the crime scene but found not to have been involved in the crime is not an accomplice and his evidence is not accomplice evidence.

Appeal dismissed, sentence not excessive.

Cases

Wakelin v Rex [1951] 18 EACA

Statutes

Criminal Procedure Code Section 352(2)

Okito v Republic

Court of Appeal, at Kisumu November 30, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 47 of 1981

Criminal practice and procedure - practice to be followed before an appeal is summarily rejected - object of summary rejection - reasons for summary rejection procedure.

Evidence - insufficient evidence against accused - burden of proof - failure to call witnesses - failure by police to give evidence of investigations - circumstantial evidence.

The appellant was convicted for stealing, his appeal to the High court was summarily rejected.

He made a second appeal to the Court of Appeal.

Held :

1. The power of summary rejection of an appeal should be exercised as set out in Obiri v Republic. In setting out at great length the reasons for summary rejection of the appeal instead of usual rejection, the learned judge defeated the object of Section 352 (2). In such a case the judge should have done this in open court.

2. A Judge cannot make any suggestions in the judgment of facts not established in evidence.

3. One cannot be convicted merely upon circumstantial evidence when the court has neither considered nor decided that such evidence was compatible only with guilt of the accused and unexplainable upon any other innocent hypothesis.

4. The judge cannot shift the onus, on the appeal, based on a fact which the appellant was not given the opportunity to call witnesses.

5. The conviction is quashed and the sentence set aside.

Appeal allowed.

Cases

1. Obiri v Republic (Criminal Appeal No 58 of 1981)

2. Wambura v Republic (Criminal Appeal No 53 of 1981)

Statutes

1. Criminal Procedure Code Section 352(2)

2. Penal Code Section 281