Peter Njoroge v Ess Builders & Company

High Court, at Nairobi

July 2, 1982

Cotran J

Civil Case No 3497 of 1981

Debt - recovery of debt - house construction - delayed payment - written acknowledgement of indebtedness - written satisfaction with work done - cheques dishonoured - delay - waiver of delay.

Res judicata - meaning of res judicata - separate suits in respect of claim from same transaction - dishonoured cheques - separate suits brought in respect of each cheque - no counterclaim raised - fresh suit brought by defendant - claim in respect of building contract - whether same issues substantially in issue - whether fresh suit res judicata - Civil Procedure Act (Cap 21) Section 7.

The plaintiff had hired the defendant company to take over and continue the completion of a house that he had started to build on his land through the services of other contractors. The defendant signed a contract with the plaintiff for the construction of the house at a stated price of Kshs 350,000 and commenced the work in June 1978. The date for practical completion of the work was stated to be October 30, 1978.

The plaintiff did not make prompt settlement of the construction charges as and when various payments fell due. Some of the payments were made in instalments and when the defendant company complained and threatened to cease the work and to sue for the balance, it was persuaded to complete the construction so that the plaintiff would pay it out of the proceeds of rent. The contractor completed building the house in October 1979.

The defendant company, being apprehensive, instructed their lawyers to draw a document evidencing this state of affairs and the document was signed by the plaintiff. The document, titled ‘Irrevocable Letter of Authority’, contained an acknowledgement of the plaintiff’s indebtedness to the defendant in the amount of Kshs 210,300 arising out of the construction of the house. The document also set out the particulars of the instalment plan for the settlement of the debt.  The plaintiff later signed another document certifying his occupation of the house and his satisfaction with its construction.

The plaintiff issued four cheques all of which were dishonoured upon presentation. In respect of three of these cheques, the construction company had filed separate suits in the Magistrate’s Court and obtained judgment in respect of all of them. As regards the remaining cheque, the defendant filed a suit in the High Court to which the defendant filed a defence. Though the defence contained allegations of poor workmanship and refusal to enable the plaintiff’s occupation against the construction company, it did not raise any counterclaim.

After the construction company had obtained summary judgment, an intended appeal was abandoned and the plaintiff filed the present suit against it averring, among other things, that he had suffered loss by virtue of the defendant’s failure to complete the construction work within the time agreed in the contract.

In its defence, the defendant denied any liability for any delay and further alleged that in any case, the delay had been waived and that the plaintiff was estopped from claiming against any defects in the construction. Finally, the defendant pleaded res judicata by virtue of the previous suit.

Held:

1. The matters urged in the present case related to an action on the building contract and these matters were not directly and substantially in issue in the previous suit, which was an action on a dishonoured cheque. The present suit was therefore not res judicata by virtue of the previous suit.

2. That there were frequent stoppages in the construction work occasioned by the plaintiff’s failure to make prompt payment after which the work would resume following an agreement, showed that time was not of the essence in the contract and the plaintiff could not therefore claim against the defendant for any delay.

3. The plaintiff had, by signing the ‘Irrevocable Letter of Authority,’ waived his right to claim from the defendant in respect of any defects in the completed house.

Suit dismissed with costs.

Cases

Karshe v Uganda Transport Co Ltd [1967] EA 774 Applied

 Statutes

Civil Procedure Act (Cap 21) Section 7

Kibutiri v Kenya Shell Ltd

High Court, at Nairobi January 6, 1981

Cotran J

Civil Case No 3398 of 1980

Injunction - application for a temporary injunction to restrain eviction and repossession of premises - conditions for granting a temporary injunction.

Landlord and tenant - controlled tenancy - whether an operator agreement for a petrol station creates a landlord/tenant relationship hence a controlled tenancy - whether such an operator is a licensee.

The applicant was a proprietor of a petrol station under an operator agreement. The respondents alleged a breach of the terms and gave a notice of termination. The applicants sought a temporary injunction against the eviction and claimed that he is a protected tenant.

Held :

1. The conditions for granting an injunction are; existence of a prima facie case with a probability of success; likelihood of the applicant suffering irreparable harm which cannot be compensated by damages and if in doubt the balance of convenience.

2. The applicant is clearly not a protected tenant but a licensee as the operator agreement is clear, he therefore has not established a prima facie case with a probability of success.

3. The respondent is a multinational company with the financial ability to compensate the applicant should he be successful in the substantive suit.

4. The applicant may apply to the Rent Tribunal for confirmation as to whether or not he is a protected tenant if not in agreement but meanwhile he has not satisfied the conditions for obtaining an injunction.

Application dismissed.

Cases

EA Industries v Trufoods [1972] EA 420

Statutes

Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301

Advocates

Mr Khaminwa for Applicant

TSA v S O

High Court, Appellate Side, Kisii

19th October 1979

Cotran J

Civil Appeal No 57 of 1978

Customary law - divorce – criteria - failure to establish matrimonial offence not fatal to petition – Luo customary law.

In the case of a marriage celebrated under Luo customary law a wife’s petition for divorce will not fail merely because she cannot establish the existence of matrimonial offence as this is only one of the matters to be taken into account, the other consideration being (a) the existence and number of children, (b) the ability and willingness of her father to return the dowry, and (c) generally whether the marriage has irretrievably broken down.

Appeal

T S A appealed to the High Court (Civil Appeal No 57 of 1978) against the dismissal by VO Adinda Esq in the District Magistrate’s Court, Homa Bay (Divorce Suit No 21 of 1977), of her petition for divorce from S O. The facts are set out in the judgment of Cotran J.

No case was cited in the judgment.

Edward Samuel Limuli v Marko Sabayi

High Court, Kisumu

5th February, 24th April , 28th May, 26th June, 23rd July 1979

Cotran J

Civil Case No 222 of 1978 (OS )

Trust - trust property – land – first registration of land – validity of declaration of trust – enforceability by Court.

There is nothing in the Registered Land Act which prevents the declaration of a trust in respect of registered land, even if it is a first registration; and there is nothing to prevent giving effect to such a trust by requiring the trustee to execute transfer documents.

Zephania Nthiga v Wanjira Nthiga (unreported), Mwangi Muguthu v Maina Muguthu (unreported) and Wamathai v Mugweru (unreported) followed.

Originating summons

Edward Samuel Limuli applied to the High Court (Civil Case No 222 of 1978 (OS )) for a declaration that Marko Sabayi held part of a parcel of land on trust for him and for an order that Marko should transfer half of that parcel of land to him. The facts are set out in the judgment.

Cases referred to in judgment:

1. Mwangi Muguthu v Maina Muguthu (unreported) Civil Case No 409 of 1975, HC
2. Wamathai v Mugweru (unreported) Nyeri Civil Case No 56 of 1972, HC
3. Zephania Nthiga v Wanjira Nthiga (unreported) Civil Case No 1949 of 1976, HC.

SMO Koli for Edward.

GK Mukele for Marko.

Republic v Henry Mwaura Ikego & Simion Gatonye Migui

High Court, Appellate Side, Kisumu 2nd, 22nd June 1979

Cotran J

Criminal Appeal Nos 46 and 47 of 1979

Criminal law – trial – non-appearance of complainant – meaning of “complainant” - Criminal Procedure Code (cap 75), section 202.

In section 202 of the Criminal Procedure Code, which requires a subordinate court (in specified circumstances) to acquit an accused if the complainant fails to appear at the hearing of the charge, the word “complainant” includes a public prosecutor. Accordingly, the accused cannot be acquitted under section 202 when the prosecutor is in Court, even though he may not be in a position to proceed as the person making the complaint and other key witness may be absent.

Nguma v The Republic of Tanzania (unreported) applied.

Appeal

The Republic appealed to the High Court (Criminal Appeal Nos 46 and 47 of 1979) against the acquittals of Henry Mwaura Ikego and Simion Gatonye Migui by HH Buch Esq in the Resident Magistrate’s Court, Kakamega, on 11th January 1979 in Criminal Case No 487 of 1978. The facts are set out in the judgment of Cotran J.

Cases referred to in judgment:

1. Nguma v The Republic of Tanzania (unreported), Criminal Appeal Nos 48 and 49 of 1976, EACA.

AGA Etyang for the Republic.

JS Behan for the Respondents.

Republic v Malek Abdulla Mohamed

High Court, Appellate Side, Kisumu

15th June 1979

Cotran J

Criminal Appeal No 113 of 1978

Criminal law – trial - withdrawal of complaint – subordinate court – need for application of withdrawal – Criminal Procedure Code (cap 75), section 204.

A subordinate court may only make an order allowing the withdrawal of a complaint and the acquittal of the accused under section 204 of the Criminal Procedure Code when an application for withdrawal has been made to it under that section.

Appeal

The prosecution appealed to the High Court (Criminal Appeal No 113 of 1978) against the decision of A Rauf Esq in the Senior Resident Magistrate’s Court, Kisumu, in Criminal Case No 1209 of 1977 withdrawing the complaint against Malek Abdulla Mohamed and acquitting him. The facts are set out in the judgment.

No cases were referred to in the judgment.

George Masinde Murunga v Attorney-General

High Court, Kakamega

27th March, 23rd April 1979

Cotran J

Civil Case No 17 of 1978

Malicious prosecution – absence of reasonable and probable cause – view of prudent and cautious man.

In proceedings for malicious prosecution, the plaintiff must show (1) that a prosecution was instituted by the defendant or by someone for whose acts he is responsible, (2) that the prosecution terminated in the plaintiff’s favour, (3) that the prosecution was instituted without reasonable and probable cause, and (4) that it was actuated by malice. The test whether the prosecution was instituted without reasonable and probable cause is whether the material known to the prosecutor would have satisfied a prudent and cautious man that the plaintiff was probably guilty of the offence.

Kagane v Attorney-General [1969] EA 643 followed.

Action

George Masinde Murunga instituted proceedings against the Attorney- General (Civil Case No 17 of 1978) for false imprisonment and malicious prosecution by a servant of the Government. The facts are set out in the judgment.

Case referred to in judgment:

1. Kagane v Attorney-General [1969] EA 643.

IJ Onyinkwa for the Plaintiff.

Miss Matu State counsel for the Attorney-General.

Cur adv vult.

Republic v Thomas Okinyi Kibiba

High Court, Kisumu 17th, 19th, 10th, 21st, 23rd April 1979

Cotran J

Criminal Case No 71 of 1978

Criminal law – evidence – corroboration – repudiated confession – court satisfied that confession true.

Criminal law – evidence – corroboration – unsworn evidence of child – retracted confession corroborating evidence.

A Court may convict on a repudiated confession by an accused without corroboration if it is fully satisfied (after considering all the material points and surrounding circumstances) that the confession cannot but be true.

Tuwamoi v Uganda [1967] EA 84 applied.

Per Cotran J. While evidence which itself requires corroboration cannot provide corroboration for other evidence which also requires corroboration, a repudiated or retracted statement by an accused person may in a proper case amount to corroboration of a child’s unsworn statement.

Trial

Thomas Okinyi Kibiba was charged before the High Court (Criminal Case No 71 of 1978) with the murder of his son James on 18th March 1978. The facts are set out in the judgment.

Cases referred to in judgment:

1. Pyaralal Melaram Bassan and Wathobia s/o Kiambu v R [1961] EA 521,EACA.
2. Tuwamoi v Uganda [1967] EA 84, EACA.

B Chunga State counsel for the Republic.

W Nyakongo (instructed by Nyakongo, Odongo & Co) for the Accused.

James Omolo Makinda and Francis Wandera Romano v Republic

High Court, Appellate Side, Kisumu

11th April 1979

Cotran J

Criminal Miscellaneous Applications Nos 50 and 51 of 1979 (Consolidated)

Criminal law – trial – venue – transfer to another Court – no fair and

impartial trial – test – Criminal Procedure Code (cap 75), section 81(1)(a).

In the exercise of the High Court’s jurisdiction under the Criminal Procedure Code, section 81(1)(a), to transfer a criminal case to a different subordinate court, the proper criterion to apply is whether a reasonable apprehension has been created in the mind of the accused that he would not have a fair and impartial trial before the original Court.

In the Matter of an Application by MS Patel (1913) 5 KLR 66 followed.

The Republic v Hashimu [1968] EA 656 applied.

Application

James Omolo Makinda and Francis Wandera Romano Were applied to the High Court (Criminal Miscellaneous Applications Nos 50 and 51 of 1979 (Consolidated)) for an order transferring the venue of their trial to another Court. The facts are set out in the judgment.

Cases referred to in judgment:

1. Patel (MS), In the Matter of an Application by (1913) 5 KLR 66.
2. Republic, The v Hashimu [1968] EA 656.