Republic v Shah

High Court at Nairobi

July 31, 1986

Madan Ag CJ

Criminal Application No 295 of 1986

(In an intended appeal from Conviction(s) and Sentence of the Chief Magistrate’s Court at Nairobi)

Bail – bail pending appeal – cancellation of such bail – accused granted bail pending appeal – Republic asking court to cancel bail because the respondent had attempted to influence a judge hearing his appeal – whether High Court having jurisdiction to order cancellation of bail.

Jurisdiction – High Court – jurisdiction to hear and determine an application for cancellation of bail pending appeal – whether Court possessed of such jurisdiction.

The respondent was convicted of theft and sentenced to two years’ imprisonment. He appealed against his conviction and sentence and was released on bail pending his appeal.

The republic applied for an order that the respondent’s bail should be cancelled and that he should be committed to prison to serve his sentence.

The application was supported by an affidavit sworn by an Assistant Commissioner of Police stating that he verily believed that the respondent had tried to influence one of the judges hearing his appeal. A letter was produced which it was said the respondent had written to the spouse of one of the judges with the intention of influencing the outcome of the appeal in his favour.

The respondent did not file a replying affidavit but he objected to the applicant’s affidavit as being mere hearsay and argued further that the Criminal Procedure Code (cap 75) made no provision for the cancellation of bail pending appeal.

Held:

1. The affidavit of the Assistant Commissioner of Police was not hearsay. If the contents of an affidavit solemnly deponed give the impression of being correct, the affidavit ought to be accepted. Moreover, the respondent had not controverted the letter by a replying affidavit of his own.

2. It had been established that the respondent had made an attempt to pervert the course of justice.

3. There was no section of the Penal Code (cap 63) or of the Criminal Procedure Code (cap 75) which seemed to deal with a situation such as the one in this case but the absence of a specific provision of the law did not mean that the court did not have jurisdiction to entertain the application.

4. The court had inherent power to put an end to misbehaviour or misconduct by a person who is involved in or is the subject of criminal proceedings by cancelling his bail or by any other order to prevent both the perversion and miscarriage of justice.

5. (Obiter) The delay in delivering the judgment in the respondent’s appeal was unfair and it might be a factor for taking into account if an application for bail is renewed.

Application allowed, bail cancelled.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) generally, section 75

2. Criminal Procedure Code (cap 75) generally, section 357

Advocates

B Chunga, Assistant Deputy Public Prosecutor for the Applicant

Gatimu Kinguru v Muya Gathangi

High Court, Nairobi 14th, 15th February, 10th, 11th July 1974;

Madan J 10th, 14th, 18th, 30th June, 12th July;

4th October, 5th November 1976

Limitation of actions - action to recover land – action barred after twelve years – title to land extinguished – agricultural land in land control area - failure to obtain consent to transaction – whether failure to obtain consent vitiates title acquired by adverse possession - whether title requires register to be rectified - Land Control Act (cap 302), section 6(1)(a) – Limitation of Actions Act (cap 22), section 7

Trust - Trust property – land – acquisition of agricultural land in land control area – land impressed with trust - no consent to trust by land control board -meaning of “other disposal of or dealing’’ - no reference to trust in instrument of acquisition – whether trust enforceable – Land Control Act (cap 302), section 6(1)(a) – Registered Land Act (cap 300), section 126(1)

Section 6(1) of the Land Control Act provides: “Each of the following transactions, that is to say: (a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area . . . is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of the transaction in accordance with this Act.

Section 126(1) of the Registered Land Act provides: “A person acquiring land, a lease or charge in fiduciary capacity may be described by that capacity in the instrument of acquisition and, if so described, shall be registered with the addition of the word trustee’, but the Registrar shall not enter particulars of any trust in the register”.

The consent of the local land control board is not required under section 6(1)(a) of the Land Control Act to a change in the ownership of agricultural land situated within a land control area which occurs by adverse possession in accordance with section 7 of the Limitation of Actions Act. Further, a title acquired by adverse possession creates a change in ownership of the title which does not require reallocation of the register.

The creation of a trust over agricultural land in a land control area does not constitute an “other disposal of or dealing’’ for the purposes of section 6(1)(a) of the Land Control Act and, therefore, does not require the consent of the local land control board; and the absence of any reference to the trust in the instrument of acquisition of the land does not affect the enforceability of the trust as the provisions of section 126(1) of the Registered Land Act as to the reference to the capacity as trustee in the instrument of acquisition are not mandatory but merely permissive.

Mwangi Muguthu v Maina Muguthu (unreported) followed

Githuchi Farmers Ltd v Gichamba [1973] EA 8 not followed

Cases referred to in judgment:

Guthuchi Farmers Co Ltd v Gichamba [1973] EA 8.

Hosea v Njiru [1974] EA 526.

Mbugua Karanja v Kamara Muhia (unreported) Civil Case No 409 of 1975, HC.

Mwangi Muguthu v Maina Muguthu (unreported) Civil Case No 377 of 1968, HC.

Action

Gatimu Kinguru, the registered proprietor of a parcel of land known as Githunguri/Ikinu 58, instituted proceedings in the High Court (Civil Case No 176 of 1973) against Muya Gathangi alleging trespass by Muya Gathangi and claiming an order for possession of the land, a perpetual injunction restraining further trespass, damages and costs. In a counterclaim, the defendant sought, inter alia, a declaration that, he was the owner of half the parcel of land and an order for rectification of the register to include his name as owner of half of the parcel of land. The facts are set out in the judgment.

P Gichukie and PM Gatheru (instructed by Njuki & Gichukie) for the Plaintiff.

PM Wamae (instructed by Munoru & Co) for the Defendant.

Cur adv vult

Baber A Mawji v United States International University & another

High Court, Nairobi 2th, 9th, 28th April; 5th, 10th, 20th May;

Madan J 17th June; 7th July 1976

Sale of land - agreement - memorandum or note in writing – signature - intention to be bound evidenced by handwriting - Law of Contract Act (cap 23), section 3(3)

Sale of land – agreement - memorandum or note in writing – list of assets constituting memorandum – list comprising both moveable and immoveable property – Law of Contract Act (cap 23), section 3(3)

Sale of land – agreement – memorandum or note in writing – action in which party relying on Statute of Frauds as bar – whether Statute of Frauds need be pleaded expressly – Law of Contract Act (cap 23), section 3(3)

Registration of title – caveat – extension – order for extension – similarity to interlocutory injunction – Registration of Titles Act (cap 281), section 57(8)

Sale of land – lis pendens – prohibitory order to restrain dealings in property – jurisdiction of court – Transfer of Property Act 1882, section 52

Section 3(3) of the Law of Contract Act provides: “No suit shall be brought upon a contract for the disposition of an interest in land unless the agreement upon which the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorised by him to sign it…”

A document written in the handwriting of the person to be charged (or that of his duly authorised agent) may be construed as signed by him for the purposes of section 3(3) of the Law of Contract Act even though it is not actually signed. Each case must turn on its own facts but, on an interlocutory application, the Court should accept the prima facie evidence of handwriting of the party to be charged until it is displaced by other evidence.

Where the memorandum or note for the purposes of section 3(3) comprises a list of assets including moveable items, it will suffice for the purposes of section 3(3) provided that the land is decisively identifiable and can be clearly separated from the rest of the assets.

Whatever may be the English law on the subject, there is no requirement that section 3(3) of the Law of Contract Act must be expressly pleaded. Observations on the similarity between interlocutory injunctions and orders allowing a caveat to remain on the register under section 57(8) of the Registration of Titles Act subject to terms.

Notwithstanding cases decided in India on corresponding legislation, the Court has power to prevent a breach of the provisions of section 52 of the Transfer of Property Act in proceedings before it in which any right to immoveable property is directly and specifically in question by imposing a prohibitory order against the title of the property to prevent all dealings in it pending the final determination of the proceedings, except under the authority of the court and upon such terms as it may impose.

Cases referred to in judgment:

Bellamy v Sabine (1857) 1 G&J 566; 26 LJ Ch 797; 30 LTOS 68; 44 ER 842.

Clearbrook Property Holdings Ltd v Verrier [1974] 1 WLR 243; [1974] 3 All ER 614.

Losinska v Civil and Public Services Association [1976] ICR 473, CA.

Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146; [1974] 2 WLR 176;[1974] 1 All ER 209, CA.

Summons

The plaintiff, Baber A Mawji, in Civil Case No 512 of 1976 which he had instituted against the United States International University (the first defendant) and Warren W Hamilton (the second defendant) applied to the Court for an order under section 57(8) of the Registration of Titles Act for a continuation of his caveat against the first defendant’s land or, in the alternative, for an order under section 52 of the Transfer of Property Act 1882 prohibiting the first defendant from dealing with the land except on the authority of the court. The facts are set out in the judgment. C Salter QC and Schamed (instructed by Veljee Devji & Bakrania) for the Plaintiff.

P Le Pelley and Frazer (instructed by Hanilton Harrison & Mathews) for the Defendants.

Cur adv vult.

Bhundia Properties Ltd v East African Airways Corporation

High Court, Nairobi 22nd March, 3rd May 1976

Madan J

Third-party proceedings – third-party notice – form of notice – form substituted in 1973 – use of prescribed form directory only – whether appropriate to use old form after 1973 – Civil Procedure Rules, appendix A, form 22.

Third-party proceedings – directions – time for directions – directions after entry of judgment in suit – third-party proceedings unlikely to resolve real dispute in action – Civil Procedure Rules, order I, rule 18.

Although the use of Form 22 (third-party notice) in appendix A to the

Civil Procedure Rules is directory rather than mandatory and the notice may be varied as circumstances require, it is doubtful whether it was proper to issue such a notice in 1975 in the form in which it appeared in the Civil Procedure Rules before its substitution by Legal Notice No 66 of 1973.

The defendant corporation paid rent to a third party as agent for the plaintiff company. The plaintiff company, however, denied that the third party was its agent and issued proceedings against the defendant corporation for the recovery of the rent. The defendant corporation, with leave of the court, issued a third-party notice, to which the third party entered an appearance. The plaintiff company applied to the Court for summary judgment on its claim against the defendant corporation, but the latter did not give the third party notice of this application; nor did it serve a copy of the defence or reply on the third party. The judge awarded the plaintiff company summary judgment against the defendant corporation. He held that the defendant corporation had paid the rent to the third party without authority and contrary to the instructions of the plaintiff company. On an application by the defendant corporation for third-party directions, including a prayer for judgment against the third party,

Held:

(1) That although third-party directions might be given under the Civil Procedure Rules, order I, rule 18, even after judgment had been entered against the defendant in the suit, on the present application, judgment should not be entered against the third party on the summons as there was a proper question to be tried as to the third party’s liability to make a contribution or indemnity.

(2) that the judgment against the defendant corporation did not bind the third party and the third party was entitled to have an opportunity to refute the allegation that it had no authority to receive payment of rent from the defendant corporation on behalf of the plaintiff company; further, it was not yet possible to state on what premise the defendant corporation based its claim against the third party; accordingly, the most satisfactory course would be for the Court to dismiss the third party proceedings and to leave the parties to apply to the Court in fresh proceedings for the determination of the issues in question.

No cases were referred to in the judgment.

Summons

Judgment having been entered in Civil Case No 799 of 1975 in favour of Bhundia Properties Ltd, the plaintiff company, against East African Airways Corporation by Chesoni J on 24th September 1975, the defendant corporation filed an application for third party directions including a prayer for judgment against the third-party, Equity Estates Ltd, on 19th February 1976. The facts are set out in the judgment.

The plaintiff company was not represented.

A Tibamanya (instructed by Counsel to the East African Community) for the Defendant Corporation.

A Diniz (instructed by PD Prinja) for the Third Party.

Cur adv vult.

RKNS Company v Provincial Insurance Company Ltd

High Court, at Nairobi

April 6, 1976

 Madan J

 Civil Case No 314 of 1976

Arbitration - stay of proceedings - application for stay in accordance with Section 6 of the Arbitration Act - grounds for granting order - meaning of sufficient reason as per Section 6(1)(b) - agreement containing arbitration clause - failure of one party to refer matter to arbitration - effect of failure to refer matter to arbitration within the stipulated time - failure to invite party to arbitration - whether this failure creates estoppel - conduct amounting to waiver of the arbitration clause - whether or not a party can rely on the arbitration clause - conditions for reference to arbitration.

The plaintiff suffered loss of goods covered under a policy of insurance by the defendant. The insurance policy provided that in case liability was disclaimed, the parties should refer the dispute to arbitration within three months, failure of which the claim was to be deemed to have been abandoned. The plaintiff filed a suit claiming an amount being the value of the goods lost and did not refer the matter to arbitration. The defendant then moved to court seeking firstly; a stay of proceedings pending reference to arbitration and secondly, dismissal of the suit on the ground that the plaintiff failed to refer the matter to arbitration as stipulated in the agreement. The plaintiff argued that the defendant also failed to refer the matter to arbitration once it received the demand from the plaintiff and that by this, the defendant had waived its right to plead the arbitration clause.

Held:

1. The defendant had no obligation to suggest or invite the plaintiff to refer the matter to arbitration. The defendant was therefore not estopped from pleading the arbitration clause, and was entitled to rely on the arbitration clause in the policy and any other clauses that existed to help support its claim on defence.
2. The failure by the defendant to refer to the arbitration clause did not amount to a waiver and no inference could be drawn from the defendant’s conduct and/or silence.
3. The statement “we have filed our papers on this subject” made by the defendant, although it can be described as pompous and innocuous, was not in any way indicative that the defendant was not ready to accept arbitration and neither did it suggest any waiver by conduct on the defendant’s part.
4. The defendant’s conduct was blameless as regards the question of waiver. This was clear from the fact that even the plaintiff did not plead that he had relied or acted on any representation made by the defendant that the arbitration clause had been waived. The matter of arbitration was never referred to and therefore there could be no waiver as a waiver cannot occur in the abstract neither can it be referred to arbitration.

 Application allowed.

Cases

No case referred to.

Statutes

1. Arbitration Act (Cap 49) (Now Repealed) Section 6(1) 2. Arbitration Rules (Cap 49 Sub Leg) (Now Repealed) rules 12 and 13

 Advocates

Mr AA Lakha for Plaintiffs

Mr Harris for Defendants

Parklands Properties Ltd v Patel

High Court, at Nairobi August 10, 1970

Madan J

Civil Case No 2 of 1970

Civil practice and procedure - pleadings - striking out pleadings for failure to comply with the rules of pleading - party may be given an opportunity to file an amended pleading – defence failing to comply with the rules of pleading, but on the face of it answering the claim - such defence may not be struck out.

Landlord and tenant - leases and tenancies - determination of leases and tenancies - tenancies at will and statutory leases from year to year or month to month - Limitation of Actions Act (Cap 22), Section 12(2), contrasted with Transfer of Property Act, 1882, of India (Orders in Council and Applied Acts, Group 8), Section 106.

Adverse possession - proof of - adverse possession as a matter of evidence - particulars of adverse possession.

The plaintiff filed an action against the defendant for specific performance of an oral agreement for sale of a house, and other reliefs. The defendant filed a defence denying that there was any agreement to purchase, and pleaded that he was in adverse possession of the house. But the defence was evasive and vague and lacked particularity, whereupon the plaintiff applied to have certain parts of the defence connected with the claim to adverse possession struck out on the ground that the defence failed to comply with the rules of pleading and that material facts to support the claim of adverse possession were not pleaded. Leave was given to amend the defence, and an amended defence was filed setting out further and better particulars. The plaintiff contended that the amended defence still failed to disclose an answer to his claim.

Held :

1. Where a pleading has failed to comply with the rules of pleading (such as where the pleading is evasive, vague and lacking particularity) and the material facts are not pleaded, on an application to have the pleading or parts of it struck out on that ground, the hearing of the application may, in the discretion of the court, be adjourned and the party given leave to file an amended pleading within a time allowed for that purpose in order that a party may not be deprived of any possible claim or defence.

2. Instead of striking out a pleading which offends the rules of pleading it may, in the discretion of the court, be amended in certain circumstances.

3. The issue whether a party’s possession of a piece of land is adverse is a matter for evidence, and a decision thereon depends upon whether the party alleging adverse possession successfully establishes the particulars of adverse possession pleaded.

4. The party who justifiably made the application for striking is entitled to the costs of the application if the particulars subsequently pleaded in the amended pleading could and should have been included in the original pleading.

5. Section 12(2) of the Limitation of Actions Act makes provision for the accrual of the right of action in the case of an expired tenancy at will, and it is unrelated to Section 106 of the Transfer of Property Act, 1882 which deals with the duration and termination of periodical leases from year to year or month to month in the absence of a contract, local law or usage to the contrary. The two provisions in the respective Acts are designed to serve separate purposes under Section 106 of the 1882 Act a tenancy is brought or sought to be brought to an end by an act of the landlord or tenant, but under Section 12(2) of the statute of limitations the tenancy is determined by operation of law in a certain event which the parties cannot prevent upon the event taking place.

6. That the amended defence, on the face of it, provided an answer to the plaintiff’s claim, and that the defence of adverse possession was a matter for evidence, and the application to strike out the amended defence was rejected, but the costs of the application was granted to the applicant in any event.

The application was dismissed.

Cases

No case referred to.

Statutes

1. The Limitation of Actions Act (Cap 22) Sections 12(2), 13(1) & 7

2. The Transfer of Property Act, 1882, of India (Group 8, Orders in Council and Applied Acts) Section 106