Abubaker Madhubuti and Omar Athman Abafae v Salim Mohammed Balala and Saleh Muhsini Shigog

High Court, at Mombasa 17th March 3th, 12th April 1978

Sheridan J

Miscellaneous Cause No 5 of 1978

Company law - meeting of company - meeting ordered by Court – when Court will make order - deadlock in affairs of company - no prior meeting validly called – Company’s Act (cap 486), section 135(1).

The three issued shares in a company were owned by the two applicants, who were also directors of the company, and by Mrs S, who was not a director. The other directors were the two respondents who were the nominees of Mrs S Early in 1976 a dispute arose on the board. The applicants attempted to call an extraordinary general board meeting of the company with a view to retiring the respondents from the board.

Difficulties having been raised over the venue for the meeting, however, no meeting was held. Antoher dispute arose on the board in May. Attempts to hold a board meeting (where the quorum was four) were frustrated by the respondent’s failure to accept the suggested venue or to suggest an alternative. The applicants then attempted to convene an extraordinary general meeting. The notice of the meeting which was sent to Mrs S, however, did not stipulate the date of the proposed meeting; she did not attend and, there being no quorum in her absence, the meeting was dissolved. On the question whether the Court could properly order a meeting under the companies Act, section 135 (1),

Held:

That since it was reasonable to infer that it was improbable that Mrs S, the alter ego of the respondents, would attend a duly convened meeting and without her there could be no quorum, the Court should make an order under section 135(1) so that the affairs of the company could be attended to, even though no valid notice of a meeting had previously been sent to Mrs S.

Re El Sombrero Ltd [1958] Ch 900 applied.

Cases referred to in judgment:

El Sombrero Ltd, Re [1958] Ch 900, [1958] 3WLR 349, [1958] 3 All ER 1.

Paul (HR) & Son, Re (1973) 118 SJ 166, The Times, 17th November 1973, [1973] Current Law Yearbook 333.

Chamber summons

Two directors of and shareholders in Coffee and Tea Packers Ltd, Mr Abubaker Madhubuti and Mr Omar Athman Abafae, applied to the High Court (Miscellaneous Cause No 5 of 1978) for an order convening an extraordinary general meeting of the company to consider and, if thought fit, pass resolutions relating to the quorum for meetings of the board, to remove Mr Salim Mohammed Balala and Mr Saleh Muhsini Shigog (the respondents) from the board and to appoint the other shareholder, Mrs Anisa Shigog, as a director. The facts are set out in judgment.

IT Inamdar (instucted by Bryson, Inamdar & Bowyer) for the Applicants.

Mansur Satchu (instructed by Atkinson, Cleasby & Satchu) for the Respondents.

Cur adv vult.

Highways Ltd v Savannah Travel & Tours Ltd

High Court, Mombasa 27th October 1977

Sheridan J

Bailment - sub-bailment - responsibility for bailed goods - bailee hiring car to sub-bailee - loss of car - bailors’s claim against original bailee.

The defendant, a car hire company, hired a car from another car hire company, the plaintiff to hire to O. Subsequently, O disappeared and the car was not recovered. The plaintiff sued the defendant for the value of the car, arrears of payment of the hire charges and damages for wrongful detention.

Held:

That by sub hiring the car to O the defendant had made O its agent and it was liable for his tortuous conversion of the car; moreover, the defendant did not absolve itself from its liability to the plaintiff to take reasonable care of the car by delegating that duty to O.

Dictum of Sachs L J in British Road Services Ltd v Arthur V Crutchley & Co Ltd (Factory Guards Ltd, third parties) [1968] 1 All ER 811, 824, applied.

Cases referred to in judgment:

British Road Services Ltd v Arthur V Crutchley & Co Ltd (Factory Guards Ltd, third parties) [1968] All ER 811, [1968] 1 Lloyd’s Rep 271, CA.

Estate Services Ltd v Naumann Gepp (East Africa) Ltd (unreported), Civil Case No 317 of 1975 (Mombasa), Simpson J.

Action

Highways Ltd sued Savannah Travel & Tours Ltd (Civil Case No 9 of 1975 (Mombasa )) for the delivery up of a car, or its value, arrears of hire payments and damages for wrongful detention. The defendant instituted third party-proceedings against Bruce Travel Ltd. The facts are set out in the judgment.

KM Pandya for the Plaintiff.

AD Suchak for the Defendant.

Thuo v The Attorney-General

High Court, Mombasa 21st April 1977

Sheridan J

Limitation of actions – accrual of cause of action – tort – conversion – goods seized by public authority under statutory power – subsequent refusal to return goods – whether cause of action accrued on seizure or on refusal to return.

Where a plaintiff alleges that goods belonging to him have been unlawfully seized under the Imports, Exports and Essential Supplies Act and a demand for their return is refused, his cause of action accrues at the date of seizure not at the date of the subsequent refusal to return the goods; and the position is not affected by abortive proceedings brought by the State under sections 15, 17 and 18 of the Act.

Cullen (Charles Douglas) v Parshan and Hansraj [1962] EA 159, EACA, applied.

Case referred to in judgment:

Cullen (Charles Douglas) v Parshan and Hansraj [1962] EA 159, EACA.

Action

Jacob Luke Thuo filed a plaint on 29th June 1976 (Civil Case 361 of 1976) in which he claimed payment form the Attorney-General for 3150 bags of sugar which were seized by officials of the Ministry of Commerce and Industry from a warehouse in Mombasa over the weekend of 22nd to 25^th November 1974. The facts are set out in the judgment.

C Salter QC for the plaintiff.

KC Gautama for the Attorney-General.

Lummus & Co Ltd v EA Harbours Corporation

High Court, Mombasa 23rd, 24th, 31st March 1977

Sheridan J

Contract – terms of contract – exclusion of liability – bill of lading – clause conferring exemption from liability on carrier – exemption extended by clause to independent contractors employed by carrier – whether clause protects stevedore.

Cases referred to in judgment:

Coffee Marketing Board v Harbours Corporation [1973] EA 126, EACA.

Halal Shipping Co Ltd v Securities Bremer Allegemene [1965] EA 690, EACA

Kayanja v New India Assurance Co Ltd [1968] EA 295, EACA.

New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975], AC 154, [1974] 2 WLR 865, [1974] 1 All ER 1015, PC.

Action

The Lummus Co Ltd instituted proceedings (Civil Case No 289 of 1974) against the East African Harbours Corporation for damages for negligence or breach of duty. The case is reported only in relation to the plea by the defendant that it was entitled to the benefit of an exemption clause in the bill of lading to which it was not a party.

PJ Wilkinson QC and IT Inamdar (instructed by Messrs Bryson, Inamdar and Bowyer) for the Plaintiff.

DMK Bishota and CN Ngalo (instructed by Counsel to the East African Community) for the Defendant.

Cur adv vult.

Melas v New Carlton Hotel Ltd

High Court, Mombasa 11th, 25th, 28th February;

Sheridan J 9th, 18th March 1977

Landlord and tenant – controlled tenancy – duration – not exceeding five years – tenancy agreement executed after commencement of term – when period begins to run – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2(1)(b).

Landlord and tenant – controlled tenancy – provision for termination – contractual right to serve notice on expiration of five years – whether provision for termination within five years – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2(1)(b).

Section 2(1)(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides that a controlled tenancy must be a tenancy that has been reduced into writing and “(i) is for a period not exceeding five years; or (ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof”.

Where the tenancy agreement expressly states the date from which the tenancy is to run, the period of the tenancy is to be calculated for the purposes of section 2(1)(b)(i) from that date even if the agreement is executed at a later date.

Bird v Baker (1858) 1 E&E 12 applied.

Earl of Cadogan v Guinness [1936] Ch 515 and Roberts v Church Commissioners for England [1972] 1 QB 278, CA, distinguished.

A right to serve notice to determine the term of a tenancy on the expiration of five years does not bring the tenancy within the terms of section 2(1)(b)(ii).

Rex Hotels Ltd v Jubilee Insurance Co Ltd [1972] EA 211, EACA, considered.

Cases referred to in judgment:

Abdulali Jiwaji & Co v Shamui Holdings Ltd, (Civil Case, Mombasa registry, No 264 of 1976).

Bird v Baker (1858) 1 E&E 12; 28 LJQB 7; 32 LTOS 74; 120 ER 812.

Cadogan (Earl) v Guiness [1936] Ch 515; [1936] 2 All ER 29.

Cow v Casey [1949] 1 KB 474; [1949] 1 All ER 197, CA.

Rex Hotels Ltd v Jubilee Insurance Co Ltd [1972] EA 211, EACA

Roberts v Church Commissioners of England [1972] 1 QB 278; [1971] 3 WLR 566; [1971] 3 All ER 703, CA

Motion

Mary Panos Melas and Angelline Lilly Monnas  applied to the Court for summary judgment in Civil Case No 742 of 1976 for possession of the suit premises against the New Carlton Hotel Ltd. The facts are set out in the judgment.

IT Inamdar (instructed by Messrs Bryson, Inamdar & Bowyer) for the Plaintiffs.

Mansur Satchu (instructed by Messrs Atkinson, Cleasby & Satchu) for the Defendant.

Cur adv vult.

Lougher v Kenya Safari Lodges & Hotels Ltd

High Court, Mombasa 17th March 1977

Sheridan J

Occupier’s liability – duty of care to visitors – restriction of duty by agreement – notice in hotel disclaiming liability for injury in or near swimming pool – plaintiff injured by fall outside changing room – plaintiff aware of hazards in changing rooms – whether contributory negligence – whether disclaimer effective.

A hotel owned by the defendant had a swimming pool with a changing room and toilets. In the vicinity of the pool a large notice was fixed to the wall stating that the defendant would not be liable for any injury arising out of the use of the pool or which was sustained in or near it. The floor space in most areas around the pool had been treated with a non-slip substance but the area outside the changing room had not been so treated; on occasions this area was used to clean sun-oil off mattresses for wheeled beds. In 1975 the plaintiff came to stay at the hotel. He decided to use the pool and first visited the toilet in the changing room. He was bare-footed at the time. As he came out of the changing room he slipped on the floor outside where there was a pool of water. Although as an athlete the plaintiff was familiar with the usual hazards of changing rooms he did not anticipate this particular hazard. He suffered injury and sued the defendant for damages.

Held:

(1) That the defendant should have taken precautions against the probable wetness of the floor due to bare-footed swimmers walking on it and the mere fact that the plaintiff may have been aware that there might be hazards in using a changing room did not, in the absence of foolishness or recklessness on his part, constitute contributory negligence.

Appleton v Cunard Steamship Co Ltd [1969] 1 Lloyd’s Rep 150 applied.

Jennings v Cole [1949] 2 All ER 191, Bell v Travco Hotels Ltd [1953] 1 All ER 638, CA,

Thomas v Bristol Aeroplane Co Ltd [1954] 2 All ER, 1, CA, and Lowther v H Hogarth & Sons Ltd [1959] 1 Lloyd’s Rep 171 distinguished.

(2) That the notice restricting the defendant’s liability could only be effective in respect of guests at the hotel if it were brought to their attention before the contract between them and the hotel was effected, eg by its display at the reception desk; accordingly, the notice did not exclude the defendant’s liability for the injury sustained by the plaintiff and the plaintiff’s claim for damages succeeded.

Olley v Marlborough Court Ltd [1949] 1 KB 532, CA, and Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, CA, applied.

Cases referred to in judgment:

Appleton v Cunard Steamship Co Ltd [1969] 1 Lloyd’s Rep 150.

Bell v Travco Hotels Ltd [1953] 1 QB 473; [1953] 2 WLR 556; [1953] 1 All ER 638, CA.

Jennings v Cole [1949] 2 All ER 191.

Lowther v H Hogarth & Sons Ltd [1959] 1 Lloyd’s Rep 171.

Maclenan v Segar [1917] 2 KB 325;86 LJKB 1113; 117 LT 376.

Thomas v Bristol Aeroplane Co Ltd [1954] 2 All ER 1; 52 LGR 292, CA.

Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163; [1971] 2 WLR 585; [1971] 1 All ER 686, CA.

Turner v Arding & Hobbs Ltd [1949] 2 All ER 911.

Olley v Malborough Court Ltd [1949] 1 KB 432.

Action

W Layton P Lougher instituted proceedings (Civil Case No 379 of 1976) against Kenya Safari Lodges & Hotels Ltd, the owner of the Mombasa Beach Hotel, for injuries sustained by him on the hotel premises when he was staying as a guest at the hotel. The facts are described in the judgment.

MAC Satchu for the Plaintiff.

SK Guram for the Defendant.

BJ Mohamedali v Keki Cawasji N Dastoor

High Court, Mombasa 15th, 18th, 25th October 1976

Sheridan J

Registered land - ownership in common - dealing in undivided share in land - need for written consent of co-proprietor - application that consent be dispensed with by Court - burden of proving that consent unreasonably withheld - Registered Land Act (cap 300), section 103(2)

Originating summons

The applicant, BJ Mohamedali, applied to the Court by originating summons (miscellaneous civil cause I (CS) of 1976) to dispense with the consent of Keki Cawasji Dastoor, the respondent, to the transfer of an undivided half share in registered land. The facts are set out in the judgment.

AYA Jiwaji (instructed by Jiwaji & Jiwaji) for the Applicant.

KM Pandya (instructed by Pandya & Talati) for the Respondent.

Cur adv vult.

IP Enterprises Ltd v Uneximp Ltd

High Court, Mombasa 8th, 15th October 1976

Sheridan J

Contract – terms of contract – standard form contract – contract concluded by telex messages – intention of parties that contract should be in standard form – standard form contracts duly signed by plaintiff and dispatched to defendant – defendant failing to sign contracts – whether contracts incorporated standard terms

The defendant company was an exporter and, by an exchange of telex messages in 1974, concluded five contracts with the plaintiff company for the dispatch of cottonseed produce to the plaintiff. The parties intended that the contracts should be subject to the standard terms of the Grain and Feed Trade Association (“GAFTA”) and references were made in the telex messages to those terms. GAFTA terms included an arbitration clause for the settlement of disputes. After the contracts had been concluded, the plaintiff sent copies of contracts incorporating the GAFTA terms to the defendant. These were duly signed on behalf of the plaintiff. The defendant, however, did not sign the contracts as it did not wish to be bound unless the subject matter of the contract was delivered to it in the first instance. The plaintiff sued for damages under the contract. The defendant, in reliance on the arbitration clause contained in the standard GAFTA form of contract, applied to the Court for a stay of proceedings.

Held:

That although contracts were concluded between the parties by the exchange of telex messages setting out the particulars of the agreements, these contracts were not in GAFTA terms since the defendant had deliberately omitted to sign the form, and this omission defeated the original intention of the parties in this respect; accordingly, the arbitration clause in the GAFTA form was not incorporated into the contracts and the application for a stay of proceedings would be dismissed. Frank Fehr & Co v Kassam Jivraj & Co Ltd (1949) 82 LIL Rep 673, CA, considered.

Case referred to in judgment:

Fehr (Frank) & Co v Kassam Jivraj & Co Ltd (1948) LIL Rep 673, CA.

Motion

The defendant, Uneximp Ltd, in Civil Case No 683 of 1975 (Mombasa district registry) filed a notice of motion to stay the proceedings commenced by the plaintiff, IP Enterprises Ltd, on the ground that any dispute between the parties should be settled by arbitration. The facts are set out in the judgment.

IT Inamdar (instructed by Bryson, Inamdar & Bowyer) for the Plaintiff.

Ramesh Shah (instructed by Shah & Shah) for the Defendant.

Cur adv vult.

Abdulali Jiwaji & Company v Shamvi Holdings Ltd

High Court, at Mombasa

July 13, 1976

Sheridan J

Civil Case No 263 of 1976

Civil Practice and Procedure – Summary judgment - whether landlord seeking vacant possession together with rent or mesne profits can obtain summary judgment – Civil Procedure Rules order 35 rule 1(1) (b) and (2).

Landlord and Tenant - breach of covenant to repair – tenant not liable for acts done prior to execution of lease.

Landlord and Tenant – lease – habendum of a lease referring to a period prior to execution of a lease – whether period can be reckoned in determining duration of the lease.

The applicant, who was a landlord and the plaintiff in the suit, sought summary judgment against the defendant for vacant possession of thedemised premises without rent as the latter was in dispute.

The defendant resisted the application contending that the tenancy in issue having been a controlled tenancy prior to the execution of the formal lease, continued to be one, as the period between the date of its execution to the date of its expiry was less than five years. The defendant therefore contended that the High Court had no jurisdiction to entertain the suit and the right forum ought to have been the Business Premises Rent Tribunal.

Held:

1. The court is not sure if the recovery of land can be divorced from the claim for rent or mesne profits as to do so means ignoring the word “and” in the last line of rule 1(1) of order XXXV of the Civil Procedure Rules.

2. In an action for breach of covenant to repair in a lease, a tenant is not liable for acts done before the time of execution of the lease. 3. The lease commenced on the date of execution and was for a term calculated from that date.

Application dismissed

1.Shaw v Kay (1847)1 Exch 412; 17 LJ Ex 17; 154 ER 175

2. Cadogan (Earl) v Guinness [1936] 2 All ER 29; [1936] Ch 515; 105 LJCh 255; 155 LT 404

3.Roberts v Church Comrs for England [1971] 3 All ER 703; [1972] 1 QB 278; [1971] 3 WLR 566, CA

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1(1)(b), 1(2)

2. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) sections 2(1)(a), 2(1)(b)(i), 3

Advocates

Mr Jiwaji for the Applicant

Mr M Satchu for the Respondent

P K M v A G R

High Court, at Mombasa

February 3, 1976

Sheridan J

Criminal Appeal No 251 of 1975

(Appeal from the Resident Magistrate’s Court at Mombasa)

Children – custody of – application for orders for – by putative father – rights of a putative father to custody – jurisdiction of the juvenile courts– – factors to be considered when awarding custody – Children and Young Persons Act (cap 141) sections 22(c), 25 - Guardianship of Infants Act (cap 144) section 2.

Following an application made to a Juvenile Court by a Children’s Officer under section 25 of the Children and Young Persons Act (cap 141), the Court ordered that two children, who lived with their maternal grandmother, were to remain with their mother and that their father would be allowed access to them. In due course, the father informed the magistrate that the mother had ran away with the children and a summons was issued for her to attend court. However, on the day before the summons were returnable and in the absence of the mother, the magistrate ordered the issuing of a warrant for her arrest. The mother appealed against the decision of the magistrate and contended that the Juvenile Court had no jurisdiction to make the orders it had earlier issued.

Held:

1. The main consideration in matters of custody is the welfare of the children and in this instance the proper person to have custody was their mother.
2. In the absence of evidence of an existing marriage between the father and the mother of the children, the putative father had no right of custody of the children.
3. The proper procedure where a father wishes to obtain the custody of children who are not otherwise shown to be with a parent who is incapable of exercising proper care over them is to apply to the High Court under the Guardianship of Infants Act (cap 144).
4. The juvenile court had no jurisdiction to make its orders under section 25 of the Children and Young Persons Act as this was not a case in which the children were in need of protection or discipline as envisaged under section 22 of the Act.
5. The proceedings by the magistrate in which a warrant of arrest was ordered to be issued against the mother were irregular as they amounted to condemning her without giving her an opportunity of being heard

Appeal allowed, mother to have custody of the children.

Cases

No cases referred to.

Statutes

1. Children & Young Persons Act (cap 141) sections 22(c), 25
2. Guardianship of Infants Act (cap 144) section 2

 Editorial Note

The Children and Young Persons Act (cap 141) and the Guardianship of Infants Act (cap 144) were repealed vide The Children Act 2001 which consolidated the law relating to parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and the protection of children.