United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd

Court of Appeal, at Nairobi

February 15, 1985

Madan, Kneller & Hancox JJA

Civil Appeal No 36 of 1983

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

Jurisdiction – ouster of– clause in contract giving exclusive jurisdiction to foreign court – suit instituted in local court – application for stay of proceedings – factors court should consider in such application – whether local courts bound to give effect to foreign jurisdiction clause.

Contract - ouster clause – clause in contract conferring exclusive jurisdiction on foreign court – suit instituted in local court – application for stay of proceedings - whether local courts bound to give effect to foreign jurisdiction clause – matters which local court should consider in granting or refusing stay.

Judicial discretion – exercise of – circumstances in which appellate court will interfere with exercise of discretion by judge.

The first and third appellants were companies incorporated in India and registered in Kenya as foreign companies carrying on insurance business.

They entered into agreements appointing the respondent as their chief agent.

Both agreements contained a clause providing that all legal proceedings arising in connection with the agreement would be governed by the law of India and that only the courts of Bombay would have the jurisdiction to entertain any disputes between the parties. The respondent, alleging breach of the agreement by the appellants, filed suits against them in Kenya.

The respondents then moved the court for orders to stay all further proceedings or, alternatively, the dismissal of the suits on account of the provisions of the jurisdiction clause. The judge refused to stay the proceedings and the appellants appealed.

Held:

1. Kenyan courts have a discretion to assume jurisdiction over an agreement which is made to be performed in Kenya notwithstanding a clause in it conferring jurisdiction on a foreign court.

The discretion to assume jurisdiction should be exercised by granting a stay of proceedings in local courts unless a strong reason for not doing so is shown.

2. The Court of Appeal will interfere with a discretionary decision of a judge appealed from, where it is established that the judge:

a) Misdirected himself in law;

b) Misapprehended the facts;

c) Took account of considerations of which he should not have taken account;

d) Failed to take account of considerations of which he should have taken account;

His decision, albeit a discretionary one, is plainly wrong. In this case, the High Court judge did not err on any of these matters.

3. The onus of establishing a strong reason for avoiding the jurisdiction of Kenyan courts is on the party who seeks to avoid that jurisdiction, and that burden is a heavy one.

4. In exercising its discretion, the court should take into account all the circumstances of the particular case; such as:

a) In what country the evidence on the issues of fact is situated or more readily available and the effect of that on the convenience and expense of trial as between the courts of the two countries;

b) Whether and how differently the law of the foreign court applies;

c) With what country either party is connected and how closely;

d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantage; and

e) Whether the plaintiffs would be prejudiced by having to sue in the foreign court

Appeal dismissed.

Cases

1. Fehmarn, The [1958] 1 WLR 159; [1957] 2 Lloyd’s Rep 55

2. Makefjell, The [1976] 2 Lloyd’s Rep 29

3. Carl Ronning v Societe Navale Chargeurs Delmas Vieljeux Civil Appeal No 16 of 1982; The Francois Vieljeux [1984] KLR 1

4. Adolf Warski, The and Sniadecki, The [1976] 2 Lloyd’s Rep 241

5. Eschersheim, The [1976] 1 All ER 441; [1976] 2 Lloyd’s Rep 1; [1976] 1 WLR 430

6. Eleftheria, The [1969] 1 Lloyd’s Rep 237; [1969] 2 All ER 641

7. El Amria, The [1981] 2 Lloyd’s Rep 539

8. Chapparal, The [1972] 2 Lloyd’s Rep 315

9. YTC Universal Ltd v Trans Europa [1973] 1 Lloyd’s Rep 480

10. Holloway v Povey (1984) 271 EG 195

11. Commonwealth Shipping Representative v Peninsular & Oriental Branch Service [1923] AC 191

12. Abidin Daver, The [1984] 2 WLR 196; [1984] AC 398

13. Evans Marshall & Co Ltd v Bertola S A & Another [1973] 1 WLR 349; [1973] 1 All ER 992

14. Atlantic Star, The [1974] AC 436; [1973] 2 All ER 175

Texts Sarkar, S.K., Ahmad E. (1979) Law of Evidence Bombay: Ashoka Law House, Rajasthan Law House 10th Edn p 517

Statutes

1. Companies Act (cap 486)

2. Rules of the Supreme Court [UK] order 11 rules 1, 2

Advocates

Messrs RJ Buckley, QC, & MR Pabary for the Appellants

Messrs D Kemp , QC, & S Gautama for the Respondents

The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Busan Munyambu

Court of Appeal, at Nairobi

February 22, 1985

Kneller, Hancox JJA & Chesoni Ag JA

Civil Appeal No 18 of 1983

(Appeal from the High Court at Nairobi, Nyarangi J)

Negligence – medical malpractice – development of pressure sore on the leg of a patient due to negligent nursing care – pain and suffering – damages for – quantum of damages.

Damages – quantum of – general damages for personal injuries- pain and suffering – pressure sore on right leg due to inadequate nursing care – measure of damages.

Appeal - Court of Appeal - adducing additional evidence in Court of Appeal – circumstances in which the Court will allow such evidence to be adduced – exercise of discretion to allow - Court of Appeal Rules rule 29(1)(b).

The respondent was involved in a road accident as a result of which he suffered several injuries which included a dislocation of his right hip joint.

He was admitted at the appellant’s hospital where he underwent surgery and was admitted. During his stay at the hospital, the respondent developed a pressure sore on his right heel, ostensibly due to his immobility in bed and to an injury of the sciatic nerve which had resulted in the loss of sensation in that leg. The plaintiff consulted another surgeon who advised that the hip joint be replaced, a procedure which was allegedly delayed for six months by the need to wait for the pressure sore to heal.

The respondent underwent further operations due to the loosening of the hip joint, two of which were carried out overseas. The respondent, who was left with a permanent residual disability of his right leg, sued the appellant alleging negligent treatment at his hospital leading to the pressure sore and the subsequent eleven surgical procedures. The trial judge found that the appellant’s hospital was liable in negligence for the respondent’s pressure sore and as a consequence of that, for the surgery, pain, suffering and expense that occurred thereafter. The judge awarded the respondent Kshs 800,000 in general damages and also made an award for special damages relating to the respondent’s medical expenses subsequent to the development of the pressure sore.

The appellant appealed against the finding on liability and the quantum of damages and the respondent cross-appealed against the award of general damages which he contended was inordinately low.

Before the appeal began, the respondent’s advocate applied for leave to adduce additional evidence in the form of a medical report which he said confirmed further aggravation of the respondent’s injuries since the trial.

Held:

1. In exercising its discretion to grant leave to adduce additional evidence under rule 29(1)(b) of the Court of Appeal Rules, the Court of Appeal will generally give such leave if the evidence sought to be adduced could not, with reasonable diligence, have been obtained for use at the trial, if it will probably have an important influence on the result of the appeal, and is apparently credible though it need not be incontrovertible.

Such Evidence will be admitted if some assumption basic to both sides has been clearly falsified by subsequent events and where to refuse the application would affront commonsense or a sense of justice.

2. There were no exceptional circumstances justifying the reception of the additional evidence sought to be adduced on this appeal.

3. The trial judge was correct in finding that the pressure sore on the respondent’s heel had been caused through the negligence of the appellant’s hospital.

Chesoni Ag. JA dissenting:

4. The surgical treatment, pain, suffering and expense that occurred subsequent to the pressure sore was not entirely as a consequence of that sore in a sense in which a nexus could be established between that treatment and the appellant’s hospital’s negligence.

5. Consequently, the award of general damages was manifestly excessive and would be reduced from Kshs 800,000 to Kshs 100,000.

6. The award of special damages would be set aside as it related to expenses not connected with the appellant’s negligence.

Cases

1. Khoo Sit Hah v Lain Ton [1912] AC 323

2. Davies v Powell Duffryn Associated Collieries [1942] AC 601; [1942] 1 All ER 657

3. Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745

4. Hatcher v Black (1954) The Times, July 22

5. Abdul Hameed Saif v Ali Mohamed Sholan (1955) 22 EACA 270

6. Hunter v Harley (1955) SC 200

7. Karmali Tarmohammed v Lakhani & Co [1958] EA 567

8. Ilanga v Manyoma Manyoka [1961] EA 705

9. Bashir v Commissioner of Income Tax [1961] EA 508

10. Lukenya Ranching and Faming Cooperative Society Ltd v Kavoloto [1970] EA 414

11. Skone v Skone [1971] 1 WLR 812; [1971] 2 All ER 582

12. Dick v Koinange [1973] EA 165

13. Rahman v Kirklees Area Health Authority [1980] 3 All ER 610

14. Joyce v Yeomans [1981] 1 WLR 549; [1981] 2 All ER 21

15. Mwangi and Another v Duncan Mwangi Wambugu Civil Appeal 77 of 1982; (1982-88) 1 KAR 278; [1984] KLR 453

16. Wanjie & Others v Saikwa and Others Civil Appeal 72 of 1982; (1982- 88) 1 KAR 462; [1984] KLR 275

17. Makube v Joseph Onkoba Nyamuro Civil Appeal 8 of 1983; (1982- 88) 1 KAR 108;[1983] KLR 403

18. Linton v Ministry of Defence The Times November 4, 1983

19. Cousins v Dzosens (1984) Law Society’s Gazette, October 18

20. Maynard v West Midlands Regional Health Authority The Times May

9, 1983; [1985] 1 All ER 635

21. Whitehouse v Jordan [1981] 1 All ER 267; [1981] 1 WLR 246

Statutes

1. Civil Procedure Act (cap 21) section 27(2)

2. Court of Appeal Rules (cap 9 Sub Leg) rule 29(1)(b)

3. Rules of the Supreme Court [UK] orders 37, 38

Advocates

Messrs BN Georgiadis and R Gaya for the Appellant

Messrs SC Gautama and MTA Malik for the Respondent

Civil Practice and Procedure - striking out of – pleadings – order VI rule 13(1)(a) and (d) of Civil Procedure Rules - Banking law - customers instructions – whether oral instructions are good enough.

Pancras Oteyo Okumu v Republic

 High Court, at Nairobi

February 19, 1985

Mbaya & Gicheru JJ

Criminal Appeal No 35 of 1984

(Appeal from Conviction and Sentence of the Court Martial at Langata Barracks, Nairobi)

Evidence - retracted confession - admission of - trial within a trial.

Evidence - accomplice evidence - conviction founded on accomplice evidence - need for corroboration - when court can convict on accomplice evidence - meaning of corroboration.

Court martial - appeals from - to High Court - duty of the appellate court - ascertainment of proper conviction.

Court martial - summing up to - by judge advocate - to members of court martial - after trial within a trial - proper summing up and advice.

The appellant was charged with committing a civil offence contrary to section 69(1)(a) of the Armed Forces Act being treason contrary to section 40(1)(a)(iii) and (b) of the Penal Code (cap 63). He was convicted by the court martial of plotting to overthrow by unlawful means the Government of Kenya. He appealed to the High Court on grounds that the court martial admitted a retracted confession, accepted an uncorroborated accomplice evidence and that the conviction was not supported by evidence.

Held:

1. In assessing, the propriety of a statement admitted after a trial within a trial, the appellate court should take into account the contents of the statement in relation to the entire evidence in the case to satisfy itself that it was voluntarily taken.
2. The court may found a conviction on a retracted confession as long as it has warned itself of the dangers thereof, provided there is other independent evidence of witnesses.
3. The evidence of accomplices needs to be coroborated, however, in this instance the confession of the appellant which was properly admitted corroborated the accomplice evidence.
4. The High Court hearing an appeal from a court martial is required to subject the whole evidene to a fresh exhaustive examination and ascertain that the appellant was properly convicted, as was the case here.
5. The judge-advocate in a court martial has a duty to properly sum up the law and advise the court martial on how to proceed after a trial within a trial.

Appeal allowed.

Cases

1. Omurwa v Republic Criminal Appeal No 14 of 1979; [1979] KLR 241
2. Tuwamoi v Uganda [1967] EA 84
3. Canisio v Republic (1956) 23 EACA 453
4. Sammy Mbera Kioko v Republic High Court Criminal Appeal No 491 of 1977 (unreported)
5. Okeno v Republic [1972] EA 32
6. Pandya v Republic [EA] 336
7. Shantilah Ruwala v Republic [1957] EA 570
8. Peters v Sunday Post Limited [1958] EA 424

Statutes

1. Armed Forces Act (cap 199) sections 7(1), 92(2)
2. Penal Code (cap 63) section 40
3. Armed Forces Rules of Procedure (cap 199 Sub Leg) rules 80(2) and (7)

Advocates

1. Mr Simiyu for the Appellant
2. Major Mbewa, QC, for the Respondent

Gordhandas Dharamshi & Brothers Limited v Republic

High Court, at Nairobi

February 18, 1985

Schofield J

Criminal Appeal No 1419 of 1984

(Appeal from the Second Class District Magistrate’s Court at Nairobi, Miss B L Obayo)

Evidence - exhibits - failure by defence to object to production of - whether defence precluded from denying possession of exhibit.

The appellant was convicted on seven counts of manufacturing for sale steel wire nails in contravention of sections 9(2) and 9(4) as read with section 15(1) of the Standards Act (cap 496). The evidence given by two officers of the Kenya Bureau of Standards was that samples of nails had been taken from the appellant’s factory which upon testing were found not to conform to the Bureau’s standards.

On the appellant’s argument that the prosecution had failed to establish a claim of possession in respect of the nails, the trial magistrate observed that the defence could not make such a claim as it had not objected to the production of the nails as exhibits. The appellant appealed.

Held:

1. By failing to object to the production of the exhibits, the defence could not have been said to accept that they were the materials taken from the appellant.
2. There was no proof that the samples examined were those taken from the appellant’s premises and in the absence of such proof, the conviction was unsafe.

Appeal allowed.

Cases

No cases referred to

 Statutes

1. Standards Act (cap 496) sections 9(2), 9(4), 15(1)

Advocates

1. Mr SS Mandla for the Appellant
2. Miss LG Mbarire, State Counsel, for the Respondent

Simiyu v Watambamala

Court of Appeal, at Nairobi

January 31, 1985

Hancox JA, Nyarangi & Platt Ag JA

 Civil Appeal No 34 of 1984

 (Appeal from the High Court at Kakamega, Gicheru J)

Land Control Board – consent – failure to obtain consent for sale of land – consequences thereof - necessity of consent for land transferred under intestacy.

Land – agreement for sale of - written agreements for disposition of land – application of provisions of section 3(3) of the Law of Contract Act (cap 23) – disposition of land upon intestacy – applicable law - sale in anticipation of inheritance.

Succession – transmission of land – under intestacy – whether anticipation of inheritance confers rights over land – where estate has not been divided according to the rules of intestacy - validity of agreement entered into before such division - application and provisions of the Law of Succession Act (cap 160) section 40 and section 6(1).

The respondents initially all agreed to sell the subject land to the appellants. The respondents subsequently disagreed prompting the 4th respondent to attempt to transfer the land to her son. The respondents then moved to court arguing that they had a right under customary law succession to deal with the property of the deceased. The 4th respondent argued that the sale to the appellants was null and void because consent was not obtained as required by the Land Control Act 1967. The High Court held that the sale was null and void for lack of consent, hence this appeal.

Held:

1. It is common ground that there was a written sale agreement therefore section 3(3) of the Law of Contract which provides that no suit shall be brought upon a contract for the disposition in land unless the agreement is written does not apply.
2. The agreement for sale of the suit land was a controlled transaction requiring consent under section 6(1) of the Land Control Act 1967, and for this reason the transaction was void for all purposes, hence the appellants could only be entitled to recover the purchase price.
3. The respondent were not transmitting the 31 acres by virtue of will or intestacy of the deceased and could not seek the aid of section 6(3) of the Land Control Act.
4. The mere anticipation that the land would devolve on the respondents did not confer on them any rights onto the land.
5. The appellant could not under the sale have stood in the place of the heirs because under section 40 of the Law of Succession Act (cap 160), an intestate estate had in the first instance to be divided among the houses according to the dependants hence the transaction was void by virtue of section 6(1) of the Act.
6. The agreement was a controlled transaction and became void for failure to obtain the requisite consent hence the appellants can only be entitled to recover the purchase price.

 Appeal dismissed.

Cases

1. Commissioner of Lands v Hussein [1968] EA 585
2. Re Hofmann, Hofmann v Hofmann [1972] EA 100
3. Chaplin v Leslie Frewin & Another [1965] 3 All ER 764; [1966] Ch 71
4. Jeffreys v Jeffreys 41 ER 443
5. Brown v Westminster Bank Ltd [1964] 2 Lloyd’s Rep 187
6. West Country Cleaners (Falmouth) v Saly [1966] 1 WLR 1485; [1966] 3 All ER 210
7. Greenwood (Pauper) v Martins Bank Ltd [1933] AC 51
8. Chemelil Sisal Estate Ltd v Makongi Ltd [1967] EA 166

 Statutes

1. Land Control Act (cap 302) sections 6(1), (2)(a), (3); 7
2. Law of Contract Act (cap 23) section 3(3)
3. Law of Succession Act (cap 160) section 40
4. Limitation of Actions Act (cap 22)
5. Registered Land Act (cap 300) section 120
6. Civil Procedure Rules (cap 21 Sub leg) order XXXVI rule 1(f)

Advocates

1. Mr Raballa for the Appellants
2. Mr Khamati for the Respondents