East African Railways Corporation v Karangi

Court of Appeal, at Nairobi

October 27, 1988

Gachuhi, Apaloo JJA & Kwach Ag JA

Civil Appeal No 113 of 1984

(Appeal from a judgment of the High Court at Nairobi, Platt J)

Employment law – termination of employment – right of employer to reenter premises occupied by a retired employee - employee compulsorily retired under the East African Railways Corporation Act (cap 18) – employee failing to vacate premises after notice – employee physically evicted by employer – whether eviction lawful – whether employee entitled to damages.

Trespass – trespass to property – premises owner’s right of re-entry - person failing to leave premises after notice to quit by owner – whether such person a trespasser - remedies available to owner – statute enabling owner to apply to court for eviction – whether owner entitled to exercise alternative remedy of right of re-entry - East African Railways Corporation Act (cap 18) section 83.

The respondent had been under the employment of the appellant corporation since 1952. In 1975, the corporation, by a three months’ notice expiring on 1st of July of that year, notified the respondent that he was to be compulsorily retired. This was purportedly done under the authority of the Railway Corporation Regulations of 1974 and it was stated that the respondent had reached the age at which he could be retired. When the period stated in the notice expired, the corporation issued a letter informing the respondent that he was to be on leave and that he was to vacate his quarters by the 10th of July.

The respondent contested his retirement to both the corporation’s appeal board and the Industrial Court but he was unsuccessful. In the meantime, the corporation’s servants physically evicted the respondent’s family from the corporation’s house on 28th July, 1975 and locked it. The respondent however regained possession of the premises on the same day upon the mediation of the Union.

The respondent remained on the house after he had been paid his entitlement and the corporation gave him further notices to quit. As the respondent failed to vacate, the corporation again evicted him on 10th January, 1976.

The respondent filed an action for damages against the corporation for unlawful eviction, in that the corporation had not given him a proper notice to quit, and for damage to his property. The judge found that the respondent had been given proper notice to quit but awarded him damages in respect of the first eviction.

Held:

1. Where a retired employee’s railway quarters was not delivered to the corporation or vacated, the East African Railways Corporation Act (cap 18) section 83(2) empowered the corporation to terminate the right of occupancy by written notice. Subsection one imposed a correlative duty of the employee on leaving the service to relinquish possession of the premises or vacate it “as soon as practicable”.

2. There was a reasonable practice sanctioned by usage but not by law that upon retirement, an employee was permitted to retain use and occupation of railway quarters until his retiring awards were paid to him. This period normally varied from two to three months.

3. The respondent had declined to fill the necessary papers to enable the corporation to process his terminal benefits and thus delayed to give over the possession of the house to the corporation. The respondent had fallen into the category of retired employees who could be ordered out of the quarters immediately.

4. The respondent having been retired by the corporation and being in occupation of its premises after the expiry of the notice to vacate, he was a trespasser and the corporation was entitled to apply to a Magistrate under section 83 of the Act (cap 18) for an order empowering a police officer to evict the respondent on its behalf.

5. The Act left the corporation with the option of other legal methods of regaining possession. One of these was the common law right of reentry available to an owner against a trespasser who refuses to quit.

This was the right which the corporation had exercised in the two evictions.

6. A trespasser is not allowed to recover damages against a true owner who is entitled to possession and who uses a reasonable amount of force to evict the trespasser. There was no evidence that the corporation’s servants had used more force than was reasonably necessary in evicting the respondent and the corporation was not liable to the respondent in damages.

Appeal allowed.

Cases

1. Newton v Harland (1840)1 Sc NR 174

2. Hemmings v Stoke Pages Golf Club [1980] 1 KB 720

3. Aglionby v Cohen [1955] 1 QB 558; 1 All ER 785

Statutes

East African Railways Corporation Act (cap 18 Laws of East African Community) section 83, 83(1), 83(3)

Stanley Munga Githunguri v Jimba Credit Corporation Ltd

High Court, at Nairobi

October, 25 1988

Mbaluto J

Civil Case No 3708 of 1988

Injunctions – interlocutory injunction – principles the courts will apply in considering applications for such injunctions.

Contract – illegality – effect of illegality – contract prohibited by statute – loan facility granted in contravention of Banking Act (cap 488) section 10 – whether loan contract illegal and enforceable – whether lender entitled to recover the money loaned.

Statutes – interpretation of statutes – Banking Act (cap 488) – object and intention of the Act – section 10 prohibiting financial institution from advancing certain kinds of loans – statute prescribing penalties for contravention but silent on the civil rights of the parties - loan granted in contravention of the section – whether such loan illegal and enforceable.

The defendant, a financial institution licensed under the Banking Act (cap 488), advanced a loan to Mukawa (Hotels) Holdings Ltd which was secured by a charge over a piece of land registered in the name of the plaintiff.

When the defendant gave notice of its intention to exercise its statutory power of sale over the charged property on account of default made in repaying the loan, the plaintiff sued it, alleging that the charge was in contravention of the Banking Act section 10(1) and therefore illegal and enforceable.

That section prohibited a financial institution from granting to any person a credit facility exceeding 5% of the total deposit liabilities of the institution or more than 100% of its paid up capital, whichever was the greater.

The plaintiff also argued that the defendant had refused to give an account of money that may have been advanced and that the parties had agreed that the correct interest rate would be 14%. He sought an injunction to restrain the defendant from exercising its statutory power of sale pending the dispute.

Held:

1. The conditions for the grant of an interlocutory injunction are, first, that an applicant must show a prima facie case with a probability of success and, secondly, that an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; thirdly, if the court is in doubt, it will decide the application on the balance of convenience.

2. The plaintiff’s claim of the alleged variation and an agreement to charge different rates of interest was not supported by evidence. In any event, the law was that a registered document could not be varied by an unregistered document.

3. There was no evidence that the plaintiff had made a request to the defendant to render an account. Moreover, this Court could not grant an injunction restraining a mortgagee from exercising his statutory power of sale solely on the ground that there was a dispute as to the amount due under the mortgage.

4. The loan advanced by the defendant to Mukawa (Hotels) Holdings Ltd contravened the Banking Act (cap 488) section 10(1) and though the Act clearly imposed a penalty for the contravention, it was silent on the civil rights of the parties where there was a contravention.

5. Where a contract on its performance is implicated with breach of statute, this does not entail that the contract be avoided. If a statute is silent on the civil rights of the parties but penalizes the making or performance of the contract, the courts consider whether the Act, on its true construction, was intended to avoid contracts of the class to which the contract belongs or whether it merely prohibited the doing of some act. The contract in this case fell under the category of contracts expressly or impliedly prohibited by statute.

6. The object of the Banking Act was the protection of the public or depositors. It would be inconsistent with the object and intention of the Act to construe it as allowing the plaintiff to retain the money, which amounted to Shs 90,000,0000 of depositor’s funds, merely because an officer of the defendant inadvertently contravened the Act.

7. The effect of the contravention of the Act was to subject the financial institution to a penalty as provided in section 28 thereof and no more. It did not vitiate or avoid the whole contract and consequently, the charge created over the plaintiff’s land was neither illegal nor unenforceable. It was a valid and enforceable contract by which both parties were

bound.

8. The plaintiff had not shown a prima facie case with a probability of success and he was therefore not entitled to an injunction.

Application dismissed.

Cases

1. Giella v Cassman Brown & Co Ltd [1973] EA 358

2. Shah & another v Depar [1965] EA 91

3. Yango Pastoral Company and others v First Chicago Australia Limited (1978) 139 CLR 410

4. St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267; [1956] 3 All ER 683

5. Archbolds (Freightage) Ltd v S Spanglett Ltd [1961] 1 QB 374; 1 All ER 417

6. Shaw v Groom [1970] 2 QB 504; 1 All ER 702

Texts

1. Mulla’s Commentary on Indian Registration Act page 49

2. Ruoff, TBF (1959) Concise Land Registration Practice London: Sweet & Maxwell Ltd p121

3. Guest, AG et al (Eds) (1976) Chitty on Contracts London: Sweet & Maxwell 25th Edn Vol 1

Statutes

1. Banking Act (cap 488) sections 10(1), 28

2. Transfer of Property Act 1882 section 69A

3. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2

4. Civil Procedure Act (cap 21) section 3

5. Registration of Titles Act (cap 281) section 32

Advocates

Mr Hira for the Plaintiff

Mr Kigano for the Defendant

Julius Mworia & another v Kiambati

Court of Appeal, at Nairobi

October 21, 1988

Gachuhi, Apaloo JJA & Gicheru Ag JA

Civil Appeal No 131 of 1987

(Appeal from a Judgment of the High Court at Nairobi, Butler-Sloss J)

Partnership – creation of a partnership – when partnership relationship may be inferred – parties being signatories to one bank account – whether partnership existing between the parties.

The 1st appellant whose suit was dismissed by the High Court filed an appeal to the Court of Appeal contending mainly that the trial court erred in not finding that there existed a partnership between himself and the respondent.

It had been argued before the trial court that in 1974, the 1st appellant’s son had obtained a loan to commence a dry-cleaning partnership business.

Further, that the income from the business was paid into a joint bank account operated on the joint signatures of the 1st appellant and the respondent and the income was substantially applied towards repayment of the loan until 1979 when the respondent opened a separate bank account into which he started paying the partnership money and running the business as his own.

The respondent had denied these allegations and the existence of any partnership between him and the appellant.

Held:

1. A partnership is the relationship which subsists between persons carrying on business in common with a view of profit. In a verbal contract of partnership, a person has to prove the existence of it by proving material terms. These can be proved by their conduct and by the mode they have dealt with each other and with other people.

2. The operation of a joint account in connection with business may be some evidence of partnership but it is not conclusive or even prima facie evidence.

3. The grounds of appeal filed and argued did not challenge the findings of the High Court that the appellants had failed to prove the existence of a partnership between them and the respondent.

Appeal dismissed.

Cases

Jackson v White and Midland Bank [1967] Lloyd’s Rep 68

Statutes

Partnership Act (cap 29) section 4(c)

Kanyoko t/a Amigos Bar & Restaurant v Nderu & 2 others

Court of Appeal, at Nakuru

October 21, 1988

Nyarangi, Gachuhi & Apaloo JJA

Civil Appeal No 142 of 1987

(Appeal from a Ruling and Order of the High Court at Nakuru, Tunoi Ag J)

Civil Practice and Procedure – attachment before judgment – matters the court should consider before ordering such attachment – applicant acting mala fides and out of malice – court failing to consider alternative offer of security made by respondent – whether order of attachment proper - Civil Procedure Rules order XXXVIII rule 5.

The respondents/landlords brought an action in the High Court against the appellant/tenant claiming, among other relief, payment of the increased rent of the premises. The appellant denied that he had been served with the statutory notice of increase of rent.

The respondents moved the court under the Civil Procedure Rules order 38 rules 5 and 12 for attachment of the appellant’s property before judgment. The application was made ex parte and without notice to the appellant. In supporting the application, the 1st respondent swore that the he had been informed that the appellant was about to abscond and that he had disposed or removed a number of his properties. The attachment order was granted and executed.

Upon the appellant’s application, the order was set aside and the appellant proceeded to show cause why he should not furnish security. He swore that the information given by the 1st respondent was false and gave evidence to show that he was in a position to pay any judgment that could be given against him. The 1st respondent on the other hand re-iterated his information.

The court ordered the attachment of the moveable properties of the appellant and the payment by him of the broker’s charges.

Held:

1. The burden of showing that the appellant had disposed of his properties or removed them from the court’s jurisdiction or was about to abscond in either case with the object of defeating any decree that may be passed against him lay on the respondents.

2. The power to attach is not to be exercised lightly without proof of the mischief aimed and vague allegations are insufficient. The appellant’s allegations that the appellant was about to abscond were vague and there was no proof that the appellant was minded of committing the mischief of disposing his properties.

3. The facts deponed to by the appellant were weightier than the bare hearsay information related by the 1st respondent and on balance, the weight of the affidavit evidence tilted in the appellant’s favour. In any event, the appellant had offered to provide security, the sufficiency of which the judge failed to even consider.

4. An applicant for attachment before judgment must act bona fide. There was evidence that the respondent had acted unreasonably and maliciously in attaching the appellant’s property.

5. Courts should be extremely slow in ordering attachment of a defendant’s property before judgment not only because it is hardly consistent with justice to exact punishment but also because of the time-consuming process of the courts, the rights and liabilities of the parties may not be determined for a long time.

6. The attachment of the appellant’s property was wrongly granted and the respondent, not the appellant, was to be liable for the broker’s charges

and fees.

Appeal allowed.

Cases

1. Ndirangu v Abdallah [1984] KLR 746

2. Mareva Compagnie Naviera v International Bulk Carriers [1975] 2 Lloyds Rep 509; 1 All ER 213

3. Lister & Co v Stubbs (1890) 45 Ch 1

4. Ndungu v Mbugua & another Civil Appeal No 112 of 1984 (unreported)

5. Meru Farmers Co-operative Union v Suleiman (No 2) [1966] EA 442

Texts

Mulla on the Code of Civil Procedure 18th Edn

Statutes

1. Landlord and Tenant (Shops, Hotels & Caterign Establishments) Act (cap 301) sections 2, 4

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXVIII rules 5,12; order XXXIX

3. Code of Civil Procedure [India]

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

Moses Kamau Waweru v Republic

Court of Appeal at Nakuru

October 18, 988

Nyarangi, Gachuhi JJA & Masime Ag JA

Criminal Appeal No 53 of 1988

(Appeal from a judgment of the High Court at Nakuru, Tunoi Ag J)

Criminal Law – rape – attempted rape –Penal Code (cap 63) section 141 – corroboration of complainant’s evidence - whether the distressed condition of the complainant in reporting the offence amounts to corroboration.

The appellant was convicted and sentenced for the offence of attempted rape and his appeal to the High Court was dismissed.

Evidence had been given that the offence was committed at the complainant’s lodging quarters at a hotel after which the complainant had ran away naked to the house of a manager who took her to the police and then to hospital.

A doctor who examined the complainant gave evidence that she had bruises and scratches on her neck and arm and a raptured hymen. However, a vagina swab taken from was not found to have any semen.

The appellant’s appeal to the Court of Appeal was mainly on the ground that there had been no sufficient corroboration of the complainant’s evidence.

Held:

1. The distressed condition of a complainant is quite clearly capable of amounting to corroboration. However, the circumstances will vary and in some circumstances, little weight, if any, can be attached to such evidence as corroboration.

2. The condition in which the appellant had appeared at the manager’s house naked, distressed, terrified and reported to him how she had been attacked by the appellant was not only the evidence of consistency.

The manager gave evidence that he had seen bruises on the complainant’s body. All that was sufficient evidence of corroboration of the complainant’s evidence.

3. The injuries were also capable of displacing the suggestion that the complainant had consented to making love with the appellant.

4. There were concurrent findings by the lower courts of the physical stature of the appellant which explained the complainant’s evidence that she had complied with the appellant’s commands out of fear of imminent danger. Moreover, there was corroboration in the evidence of the doctor on her findings when she examined the complainant.

5. The appellant had been rightly convicted.

Appeal dismissed.

Cases

1. Kibazo v Uganda [1965] EA 507

2. R v Zielinski (1950) 34 Cr App R 193; 49 LGR 45; [1950] 2 All ER

1114

3. R v Redpath (1962) 46 Cr App R 319; 106 SJ 412

Statutes

1. Penal Code (cap 63) section 141

2. Evidence Act (cap 80) section 77

Advocates

Mr Mungai for the Appellant.

Joseph Muriithi Nyamu v Republic

High Court, at Nyeri

October 18, 1988

Abdullah J

Criminal Appeal No 172 of 1987

(Appeal from Conviction and Sentence of the District Magistrate’s Court at Baricho, J M Kairo Esq)

Sentencing – jurisdiction of a court to pass sentence – prescribed minimum sentence exceeding the sentence which trial court is authorised to pass imprisonment – whether trial court having jurisdiction to hear the case and pass sentence – Penal Code (cap 63) section 278–– Criminal Procedure Code (cap 75) sections 4, 7(3)(a), 364(2).

Jurisdiction – District Magistrate’s Court of the second class – whether court having jurisdiction to try offence for which the prescribed minimum sentence exceeds the sentence which the court is authorised to pass - Penal Code (cap 63) section 278 – Criminal Procedure Code (cap 75) sections 4, 7(3)(a), 364(2).

The appellant was convicted in a District Magistrate’s Court of the second class for stock theft contrary to section 278 of the Penal Code (cap 63).

He was sentenced to 2 years’ imprisonment with four strokes of corporal punishment.

The Penal Code section 278 prescribed a minimum punishment of seven years’ imprisonment with hard labor together with corporal punishment for the offence.

Held:

1. By the penal provisions of the Penal Code (cap 63) section 278, a sentence of imprisonment imposed under that section was not to be less than seven years. The section did not allow for discretion or room to impose a lesser sentence.

2. When a sentence which is less than the prescribed minimum is imposed, the High Court may, under its power of revision under the Criminal Procedure Code (cap 75) section 364(2), impose the correct sentence after giving the offender an opportunity of being heard, provided that the trial court had the power to impose such minimum sentence.

3. The fifth column of the First Schedule to the Code showed that the offence in this case was triable by a subordinate court of the first or second class in accordance with section 4 of the Code. However, section 7(3)(a) authorized the latter court to pass a sentence of imprisonment for a term not exceeding two years.

4. Notwithstanding the provisions of section 4 of the Criminal Procedure Code, a court which has no power to impose a minimum sentence required by the penal provisions cannot have jurisdiction to try and determine the offence under such penal provision. A conviction and sentence of a court which has no jurisdiction are a nullity.

Appeal allowed, retrial ordered.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 264(2); 308(1); 322

2. Criminal Procedure Code (cap 75) sections 4, 7(3)(a); 221, First

Schedule, Fifth Column

Advocates

Appellant unrepresented

Gacivih for the Respondent

Mbogua Kiruga v Mugecha Kiruga & another

Court of Appeal at Nairobi

October 13, 1988

Platt, Apaloo & Masime JJA

Civil Appeal No 52 of 1985

(Appeal from a judgment/decree of the High Court at Nairobi, Todd J)

Land law – trust – party claiming existence of a trust over land in his favour – duty of claimant to discharge onus of proof of trust – whether claimant acquiring overriding interest over the land – Registered Land Act (cap 300) section 30.

Appeal - Court of Appeal – circumstances in which appellate court may interfere with factual findings of lower court.

The appellant lost his suit in the High Court where he had sued the first respondent, his brother, claiming that he (the first respondent) had fraudulently caused the family land to be registered in his name and that he had fraudulently sold it to the second respondent.

The appellant claimed his entitlement to the land by the doctrine of adverse possession and asked that the second respondent do transfer the land to him.

It emerged that the land had earlier been exchanged with another parcel which was registered in the name of the appellant’s father, thus raising the implication that if the registered proprietor of the suit land had derived it from the appellant’s father through the exchange, then he had a good claim over it.

Consequently the plaintiff amended his plaint in order to aver that when the second defendant procured the land in exchange with his father’s, he had it registered in his name in trust for the appellant.

Held:

(Platt JA dissenting)

1. The burden lay on the appellant to show by credible evidence that notwithstanding the registration of the land in the name of the first respondent, the latter held one half of that land as his trustee. The appellant had entirely failed to show that the first respondent was his trustee.

2. An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong.

3. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution.

4. Where it happens that a decision may seem equally open either way, the appellate approach is that the decision of the trial judge who has enjoyed the advantage not available to the appellate court becomes of paramount importance and ought not to be disturbed.

5. On the meaning of an overriding interest under section 30 of the Registered Land Act (cap 300), there was no overriding interest acquired by the appellant over the land which was capable of binding the purchaser.

Appeal dismissed.

Cases

1. Hodgson v Marks [1971] Ch 892; [1971] 2 All ER 684;[1971] 2 WLR 1293

2. Williams & Glyn’s Bank v Boland [1981] AC 487;[1980] 3 WLR 138; [1980] 2 All ER 408

3. Watt v Thomas [1947] AC 484; 1 All ER 582

4. Peters v Sunday Post Ltd [1958] EA 424

Statutes

1. Limitation of Actions Act (cap 22) sections 37, 38

2. Registered Land Act (cap 300) sections 27, 27(a), 28, 30, 30(g),143(1)

3. Land Adjudication Act (cap 284) generally

Advocates

Mr Mburu for the 1st Respondent