Issues:

1. Whether a report of a guardian ad litem is a mandatory requirement.

2. Whether the Applicant was a parent of the infant in terms of the provisions of the Adoption Act, Cap. 143.

3. Whether the Applicant was the natural father of the infant in terms of the provisions of the Adoption Act.

4. Whether a father of an illegitimate child has the right to give consent under section 4 (6) of the Adoption Act (Cap. 143 or section 158 (4) of the Children Act, 2001.

5. Whether in every case where an adoption order is made there should be a specific order as to consent under section 4 (6) of the Adoption Act or section 158 (4) of the Children Act, 2001.

6. Whether an adoption order can be reviewed.

In the Matter of the Estate of Ishmael Juma Chelanga – Deceased

High Court, at Nairobi

May 24, 2002

Etyang J

Probate and Administration Cause No 2258 of 1996

Succession – intestate succession – grant of letters of administration persons entitled to be issued with letters of administration–– definition of dependants – persons entitled to a share of the deceased’s estate – whether administrators with a limited grant of letters of administration ad colligenda bona ought to give accounts.

Succession – Islamic succession - intestate succession – principles applicable in administration of estates of Muslims - whether a non-Muslim is permitted to inherit the estate of a Muslim – inheritance by illegitimate children under Islamic law – Law of Succession Act (Cap 160) section 2(3), (4) - Constitution of Kenya sections 82(1) and 82(4), (6).

The widow of the deceased filed a petition for letters of administration under section 67(1) of the Law of Succession Act (cap 160) and Rule 36(3) of the Probate and Administration Rules. The mother, brothers and sister of the deceased filed objections to the making of the grant under sections 66 and 68 of the Law of Succession Act and Rules 7(17) and 17 of the Probate and Administration Rules. The issues before the court were; whether the widow and her brother were entitled to the grant of letters of administration and whether the mother of the deceased, his illegitimate daughters and brothers were entitled to a share of the deceased’s estate.

Held:

1. The issue as to whether the marriage of the deceased to the petitioner was contracted in 1995 or 1983 was irrelevant, what was relevant in this cause was that the date of the deceased’s death the petitioner was his lawful wedded wife.

2. The petitioner, in her capacity as the widow of the deceased, was entitled to be issued with a grant of letters of administration intestate as petitioned irrespective of whether she returned to her husband’s ancestral home or not.

 3. The brother-in-law to the deceased may, under the provisions of the Law of Succession Act (Cap 160) and under Islamic Law, be entitled to be appointed a co-administrator of the estate of the deceased jointly with wife, however it is the finding of this court that he was not a suitable person to be so appointed.

4. The surving mother of the deceased, is entitled to a share of his estate under Islamic Law and moreover she was a dependant of the deceased entitled to a share of his estate.

5. It was established that the deceased was a Muslim at the time of his death. The Law of Succession Act does not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim. In lieu of those statutory provisions, the devolution of the estate of any such person has to be governed by Muslim Law.

6. The provisions of part VIII of the Law of Succession Act relating to the administration of estates shall where they are not inconsistent with those of Muslim Law, apply to every Muslim as per section 2(3) and (4) of the Law of Succession Act enacted vide Act No. 21 of 1999.

7. Under Islamic Law a non – Muslim is permitted to inherit the estate of a Muslim.

8. An illegitimate child does not inherit the estate of his or her father but is permitted to inherit from his or her mother. The two illegitimate daughters of the deceased are therefore not entitled to a share of the deceased’s estate under Islamic Law.

9. In view of section 82(4) of the Constitution, the two illegitimate daughters of the deceased cannot be heard to say that the application of personal law governing the intestate succession of the deceased which is Islamic Law, is discriminatory against them and is inconsistent with the Constitution.

10.The children born to the petitioner and the deceased were born during the subsistence of the marriage, hence are legitimate and entitled to inherit and have a share of his estate.

11.Under Islamic Law, a widow is entitled to anything their husbands gifted to them during their lifetime but for the rest she only owns that share which she is entitled to under the law of distribution according to the rules of Shariah.

Petitioner (deceased’s widow) and one objector (deceased’s brother) appointed as joint administrators.

Cases

No cases referred to.

Texts

 1. Patel, N (1995) The Principles of Mohammedan Law CTA Publication Cap XIII p 251

 2. Arifi, A H (1995) Death and Inheritance: The Islamic Way New Delhi: Kitab Bhawan p 194

Statutes

1. Law of Succession Act (cap 160) sections 3(2), 26, 27, 28, 29, 47, 66, 67(1), 68, 76; Probate & Administration Forms No. 5, 80

2. Statute Law (Miscellaneous Amendments) (No 2) Act, 1990 (Act No 21 of 1999) sections 2(3), 4

3. Constitution of Kenya sections 82(1), (4), (6)

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

 5. Mohammedan Marriage and Divorce Registration Act (cap 155) sections 11, 16

6. Probate and Administration Rules (cap 160 Sub Leg) rules 7(17), 17, 36(3), 45(1)

Advocates

Mr C Miller Jr for the Petitioner.

Mrs A A Aroni and Miss M Ndigwa for the Objectors.

Regina Kavenya Mutuku & 3 others v United Insurance Co Ltd

High Court, at Nairobi

May 24, 2002

Ringera J

Civil Case No 1994 of 2002

Civil Practice and Procedure – pleadings – unsigned pleadings – validity of unsigned pleadings - whether pleading may be amended without leave of the Court.

Civil Practice and Procedure – pleadings – amendment of pleadings - amended pleading struck out – effect of striking out amended pleading – whether party can rely on the original pleadings if the subsequent amended pleadings is struck out – whether amended pleadings supersede the original signed pleadings.

The plaintiffs herein instituted a suit against the defendant seeking a declaration that the defendant was obliged to satisfy a judgment obtained in default of an earlier suit High Court Civil Case No. 2376 of 1999 against one John Njuguna an insured by the defendant herein. They argued inter alia that the defendant must settle the decretal amount by virtue of the provisions of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 of the Laws of Kenya. The defendant filed a defence but amended it later. The amended defence was unsigned. However, upon realizing the mistake the defendant filed a further amended defence without leave of the Court. The plaintiffs then filed an application to strike out the defence on the basis that it was unsigned and therefore not a defence at all and the amendment thereof was illegal as it purported to amend that which did not exist in law and that the purported amendment was made and filed without leave of the Court.

Held:

1. An unsigned pleading cannot be valid in law. It is the signature of an appropriate person which authenticates a pleading and an unauthenticated document is not a pleading of anybody. It is a nullity.

2. Where a pleading has been amended and the same has been struck out, the party affected has simply no valid pleading left on record.

3. The effect of an amended defence is to supersede and replace the original defence.

4. The further amended defence was a nullity as it purported to amend the amended defence which was a nullity.

Application allowed and judgment entered for the Plaintiff.

Cases

No cases referred to

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 13(b), 13(c); 13(d), rule 14; order IXA rule 3; order VI rule 1(6), 2

2. Civil Procedure Act (cap 21) section 3A 3. Insurance (Motor Vehicle Third Party Risks) Act (cap 405) section 10 (2)

Advocates

N Kitonga for the Plaintiff/ Applicant.

A.N Ngunjiri for the Defendant/ Respondent.

Nevin Jiwani v Going Out Magazine & another

High Court, at Nairobi

May 24, 2002

Ringera J

Civil Suit No 336 of 2002

Civil Practice and Procedure– affidavit - replying affidavit duly filed - served copy lacking exhibits – whether affidavit defective – whether serving defective affidavit invalidates a valid affidavit on record.

Intellectual property - copyright- injunction – interim injunction for breach of copyright in literary text and photographs – applicable principles in copyright cases - establishing a prima facie case - assessment of original work – no proof of pecuniary loss suffered is tendered – circulation of defendant’s magazine unknown– whether proof of pecuniary loss is necessary for granting an injunction.

Civil Practice and Procedure – affidavit - supplementary affidavit–– time for filing the affidavit limited by consent of the parties – delay to file caused by service of defective affidavit without exhibits–– whether court has power to extend time limited by consent.

Injunction - interlocutory injunction - against infringement of copyright - principles applicable in granting such injunction.

The plaintiff filed a suit against the defendant alleging infringement of her copyright in certain photographs appearing in the defendant’s magazine. She also sought an order of the Court to restrain the defendant from publishing, distributing or infringing her copyright and further delivering up and/or destruction on oath of all copies of the defendant’s copies of the magazines. The Defendant filed its replying affidavit but served on the plaintiff a copy without exhibits.

After brief intervention of the Court the parties recorded a consent order whereby the defendant’s Advocate undertook on behalf of his client not to publish or distribute their magazines or to infringe the plaintiff’s copyright pending the inter-partes hearing of the suit. Both parties were granted leave to file further affidavits within time set by the Court. The defendants failed to file their affidavit within the stipulated time.

When the matter came up for inter-parties hearing the plaintiff took objection to the replying affidavit on the ground that it had been found defective by the Court as it did not have the exhibits referred to and that the said defects had not been cured by any subsequent consent order and that the further affidavit was also defective as it was filed out of time.

The defendants responded that the first affidavit was valid because it had not been found defective by the Courts and the 2nd affidavit could not be filed earlier due to time constraint and therefore extension of time for it to be deemed to be properly on record.

Held:

1. The service of the defective copy of the affidavit on the plaintiff’s advocates could not render invalid a valid affidavit duly filed on record.

2. The court has no express or inherent power to extend time limited by the consent of the litigants however unfair such limitation may turn out to be to one of the parties; only a subsequent consent by parties could enlarge such time.

3. The finding of whether or not the plaintiff had shown a prima facie case for infringement of copyright depended on whether or not he had satisifed the court on a prima facie basis that the works in question are the result of exercise of sufficient labour and skill on her part which had given them some original character and that the defendant had reproduced the same.

 4. The plaintif fhad proved that he had done sufficient work by way of photography development, design artwork, color seperation and the publication of the said photographs to confer on them an original character.

5. The plaintiff had made out a prima facie case of the infringement of its copyright by the defendant.

 6. That considering the nature of the wrong, it may be very difficult if not impossible to calculate the plaintiff’s loss, as the level of circulation of the defendant’s magazine was unknown.

7. It is a long established practice to grant interlocutory injunctions in cases of infringement of copyright once a prima facie case with a probability of success has been established.

Application allowed for an interim prohibitive infringement.

Cases

1. Sapra Studio v Tip-top Clothing Co [1971] EA 489

2. Cut Tobacco Kenya Ltd. v British American Tobacco (K) Ltd. Civil Appeal No 126 of 2000

3. Aktiebolaget Jonkoping-Vulcan Indstricksfabriksaktiebolag v East India Match Co Ltd [1964] EA 62

4.EA Industries Ltd v Trufoods Ltd [1972] EA 420

5. Gasston and Barbour v Bwavu Mpologoma Growers Co-operative Union Ltd [1958] EA 549

6. Frank Reddaway and Frank Reddaway & Co Ltd v George Banham & Co Ltd [1986] AC 199

7. Cramp (GA) & Sons Ltd v Frank Smythson Ltd [1944] 2 All ER 92; [1944] AC 329; 113 LJ Ch 209; 171 LT 102

8. Norman Kark Publications Ltd v Odhams Press Ltd [1962] 1 All ER 636

Texts

Simonds, Lord et al (Eds) Halsbury’s Laws of England London: Butterworths 3rd Edn para 774

Statutes

1. Copyright Act (cap 130) (Repealed)

2. Copyright Act 2001 (Act No 12 of 2001)

Advocates

Mr Orowe for the Plaintiff

Mr Okoth & Miss Mululu for Defendant

Machira t/a Machira & Co Advocates v East African Standard (No 2)

High Court, at Nairobi

May 23, 2002

Kuloba J

Civil Case No 612 of 1996

Civil Practice and Procedure – stay of proceedings–– pending hearing and determination of the intended appeal – on grounds that appeal would be rendered nugatory if stay is not granted – exercise of discretion by court–– factors to be taken into account - applicable principles.

The defendant applied for an order for stay of proceedings pending the hearing and determination of an intended appeal against a ruling in favour of the plaintiff. The defendant argued that unless a stay was ordered, the case could be set down for formal proof thus rendering the appeal nugatory.

Held:

1. In such applications for stay of proceedings, the court cannot proceed on initial presumption that the appeal or intended appeal shall succeed and so prima facie the applicant is the preferred party. The matter must remain in the discretion of the court to be exercised upon considering all material circumstances and not the interests of one party.

2. In handling applications for stay of further proceedings or execution, one of the fundamental procedural values is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage.

3. A successful party at whatever stage should have access to the consequences of that judicial finding and decision. Any subsequent decision which tends to impede the normal flow of justice by suspending the enjoyment of the consequential orders can only be rendered in exceptional circumstances.

4. In order for an unsuccessful party to obtain a suspension of further proceedings or execution, he must satisfy the court on affidavit or other evidential material that substantial loss may result.

5. In this kind of applications for stay, it is not enough for the applicant to merely state that substantial loss will result. He must provide specific details and particulars.

6. Where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay.

7. The applicant will obtain a stay of further proceedings if he can show that an impecunious party may squander what may be needed restitution or that the subject matter may be destroyed if the appeal succeeds.

8. In granting a stay of proceedings the court may consider the delay in making the application and the requirement of security for due performance.

9. The application in this case came late and without good reason. The plaintiff should be allowed to move on.

 Application dismissed.

Cases

Waruru, Wachira and another v Francis Oyasi Civil Application No NAI 223 of 2000

Statutes

No statutes referred.

Advocates

Mr Majanja for the Applicant.

Mr Mwenesi for the Respondent.

Showind Industries Ltd v Guardian Bank Ltd & another

High Court, at Nairobi

May 23, 2002

Ringera J

Civil Suit No 273 of 2002

Injunction – mandatory injunction – to remove a receiver manager – circumstances favouring the granting of an interlocutory mandatory injunction – exercise of discretion to grant a mandatory injunction.

Equity – equitable remedies – granting of such remedies - when it would be inequitable to grant such a relief – circumstances that meet approval of a court of equity – when delay defeats equity.

 Contract – validity of contract – formal validity – when validity must be supported by consideration.

Contract - debenture – validity of a debenture - whether a debenture can be void for want of consideration – obligations contained in a debenture – when power to appoint a receiver/manager – can be said to have crystallized.

The applicant challenged the appointment of the 2nd defendant as the receiver manager. The applicant argued inter alia that the debenture had not crystallized as no formal demand had been made. It was further argued that the debenture was null and void for reasons that it was not registered as required by law. The respondents opposed the application arguing that the applicant’s conduct did not merit equitable relief and secondly that the debenture was valid and that there was no requirement for a formal demand in the debenture.

Held:

1. An interlocutory mandatory injunction is granted very sparingly and only in exceptional circumstances such as where the applicant’s case is very strong and straight forward. The applicant must also satisfy the Court that he has a strong case with a probability of success.

2. An equitable remedy may be denied where it would be inequitable to grant the relief, for instance where the applicant’s conduct does not meet the approval of a court of equity or his equity has been defeated by laches.

3. (Obiter) It is a hallowed maxim of equity that delay defeats equity and that equity aids the vigilant, not the indolent.

 4. It is very trite contract law that a contract under seal need not be supported by consideration for its formal validity. The debenture in the instant case was such a document.

 5. The power to appoint a receiver manager would usually crystallize after a formal demand. However in the case no formal demand was necessary as provided in the debenture

 Cases

No cases referred to.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 2(A), 3, 9

2. Civil Procedure Act (cap 21) section 3A