Judicial review – Costs – whether costs follow the event – which party ought to bear costs where there is clearly no successful party – application by Attorney-General to amend the Auctioneers Act therefore removing the substratum of the judicial review apllication.

Joyce Atemo v Mary Ipali Imujaro

Court of Appeal, at Nairobi June 27, 2003

Omolo, Shah & Waki JJ A

Civil Appeal No 274 of 2001

(An appeal from the Ruling and Order of the High Court at Nairobi

(Ang’awa J) dated 14th October, 1999 in HC Succ Cause No 11 of 1999)

Succession – administration of estates - persons who may be entitled to administer a deceased’s estate - widows - deceased cohabiting with appellant during his lifetime - deceased previously married to respondent but marriage never dissolved - dowry paid to appellant’s family by the deceased’s clan after his death - whether appellant a widow of the deceased under customary law.

Customary Law - Teso customary law - marriage - deceased cohabiting with appellant during his lifetime - no dowry paid to appellant’s parents - appellant’s family accepting dowry from the deceased’s clan after the deceased’s death - whether appellant’s union with the deceased was a valid marriage.

The appellant had been cohabiting with the deceased as man and wife prior to his death. By the time of his death, the deceased had not paid any dowry to the parents of the appellant. After the deceased’s demise, his relatives took to the parents of the appellant Shs 10,000/= as dowry. Prior to meeting the appellant, the deceased had been married to the respondent.

Despite separation, the marriage between the respondent and the deceased was never dissolved during his life-time. After the passing away of the deceased, the respondent petitioned the High Court for a grant of letters of administration averring that she was the only widow of the deceased.

The appellant objected to the petition describing herself as the only widow of the deceased. The trial judge held that the respondent was the only widow and that the appellant was not the wife of the deceased during his life time and accordingly could not be the widow or even a dependant of the deceased. The appellant filed her appeal to challenge these conclusions of the learned judge.

Held:

1. It was a notorious fact of which the Court would take judicial notice of, that under customary law of all the African communities in Kenya, no valid marriage can be contracted without payment of marriage consideration. Up to the time of the demise of the deceases, no valid marriage under Teso customary law had come into existence.

2. One who seeks to rely on any African customary law as the basis of his claim must prove by evidence the existence of such custom.

3. The only inference which could be drawn from the evidence of the appellant’s witnesses was that under Teso customary law, where a couplecohabit as man and wife without formalizing their union into a valid marriage, upon the death of either man or the woman, if dowry is paid and accepted by the relatives of the woman, such union is converted into a valid marriage.

4. Accordingly, the High Court was wrong in holding that the appellant was not a widow of the deceased. She became a widow when the deceased’s clan paid money before his burial, which was accepted by the clan of the appellant.

5. Both the appellant and the respondent were legitimate widows of the deceased and they were jointly entitled to his estate.

Appeal allowed.

Cases

1. Kimani v Gikanaga & another [1965] EA 735

2. Kaittany, Sakina Sote & another v Mary Wamaitha Civil Appeal No

108 of 1995

Texts

Cotran, E (1969) Restatement of African law: Law of Succession London: Sweet & Maxwell Vol II

Statutes

No statutes referred.

Advocates

Ms Guserwa for the Appellant.

Gulthamed Mohamedali Jivanji t/ a Jivanji Agencies v Sanyo Electrical Company Ltd

Court of Appeal, at Nairobi June 27, 2003

Omolo, Owuor & Waki JJ A

Civil Appeal No 225 of 2001

(An appeal from the judgment of the High Court at Nairobi

(Khamoni, J) dated 25th May, 2001 in HCCC 1628 of 1998)

Damages – special damages – need to be specifically pleaded and proved – discretion of an appellate court to disturb an award.

Intellectual property - trademark - infringement of registered trademark - trading in goods bearing a registered trademark - goods of inferior quality and not manufactured by trademark - owner - special damages for infringement.

The respondent was registered under the Trade Marks Act (Cap 506) as the owner of the trade mark ‘Sanyo’. It was operating in Kenya through its locally registered subsidiary Sanyo – Armco (K) Ltd. Sanyo – Armco found the appellant conducting business under the trademark ‘Sanyo’.

The goods traded by the appellant were of inferior quality and were not manufactured by Sanyo. The respondent filed a suit pleading the damage already suffered and continuing to be suffered as a result of reduced sales of its items. The trial judge entered judgment for the respondents ordering the appellants to deliver up all equipment trademarked as aforesaid and issuing an injunction restraining the appellants from conducting business with the same goods. The appellant appealed on grounds that no damages could be awarded to the respondents since the company on the evidence on record was a totally different entity not party to the proceedings.

Secondly, that special damages could not be awarded because they were not prayed for in the proceedings. Lastly that the Court had wrongly exercised it’s discretion in awarding special damages.

Held:

1. There was no denial of the pleading that Sanyo – Armco was a subsidiary and agent of Sanyo which was the manufacturer and distributor of the goods subject matter of the suit. It was therefore deemed to be admitted.

2. In both trade-mark and patent cases, the plaintiff is entitled to both general and special damages.

3. The question as to what is reasonable for a plaintiff to do in mitigation of damages is not a question of law but one of fact and ought to be raised in the pleadings.

4. Special damages must first be pleaded and then strictly proved.

5. An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.

6. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect thereby arriving at a figure inordinately high or low.

Appeal allowed in part.

Cases

1. African Highland Produce Ltd v Kisorio [2001] 1 EALR 1

2. Selle v Associated Motor Boat Co Ltd [1968] EA 123

3. Coast Bus Services Ltd v Sisco E Murunga Ndangi & 2 others Court of

Appeal 192 of 1992

4. Brooke Bond Kenya Ltd v Chai Ltd [1971] EA 10

5. Bashir Ahmed Butt v Uwais Ahmed Khan by M Akmal Khan [1982-88]

1 KAR 1

Texts

Saunders, JB (Ed) (1969) Words and Phrases Legally Defined London:

Butterworths 2nd Edn Vol IV pp 367, 368, 369

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 9(1)

2. Trade Marks Act (cap 506)

Advocates

Mr Hira for the Appellant

Mr Kiragu for the Respondent.

Five Continents Ltd v Mpata Investments Ltd

Court of Appeal, at Nairobi June 27, 2003

Kwach, O’Kubasu & Githinji JJ A

Civil Appeal No 306 of 2000

(Appeal from the Ruling of the High Court at Nairobi

(Mbaluto J) dated 1st November, 1999 in HCCC No 449 of 1999)

Civil Practice and Procedure – summary judgment – when defence fails to disclose triable issues – striking out of defence on the basis of deficient evidence.

Evidence – documentary evidence–– secondary evidence – examination of documentary evidence by the court – failure of the court to scrutinize documentary evidence.

The appellants in this case appealed against the decision of the high court in striking off their defence and entering summary judgment. There was no dispute between the parties that they were doing business with each other and that the accounts were settled at some stage. The dispute was, as to the debt each party owed each other and the result of the settlement.

It was the allegation of the defendant/appellant that the learned judge relied on evidence of no evidential value.

Held:

1. This was not a plain and obvious case on which summary judgment should have been entered. There was a genuine dispute on the defendant’s liability which could only be resolved at trial.

2. The learned judge had accepted the plaintiff’s account and documents on the face value without serious scrutiny.

3. Judgment and decree of the superior court is set aside and the defence restored.

Application dismissed with costs.

Cases

1. Dhanjal Investments Ltd v Shabaha Investments Ltd Civil Appeal No 232 of 1997

2. UAP Provincial Insurance Limited v Lenny M Kivuli Civil Appeal No 216 of 1996

3. Kenya Trade Combine Ltd v MM Shah Civil Appeal No 193 of 1999

Statutes

1. Evidence Act (cap 80) section 37

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

Advocates

Mr Odera for the Appellant.

Mr Okeyo for the Respondent.

Waweru & another v Kirori

Court of Appeal, at Nairobi June 27, 2003

O’Kubasu JA

Civil Application No NAI 21 of 2003

(An application for extension of time to file and serve Notice of

Appeal and Record of Appeal from the judgment of the High Court

at Nairobi (Ang’awa J) delivered

on 2nd March, 2000 in HCCC No 293 of 1998)

Civil Practice and Procedure - extension of time - to lodge a Notice and Memorandum of Appeal – failure to show sufficient reason for extending time – discretion of the court to extend time.

This was an application by way of Notice of Motion in which the applicant sought leave for extension of time in which to file a Notice of Appeal and lodge the Memorandum of Appeal. The applicant argued that their delay in filing the record was not deliberate but was out of reasons beyond his control.

Held:

1. Rule 4 of the Civil Procedure Rules gives an unfettered discretion to the single judge in deciding whether or not to grant the extension of time sought.

2. Though the discretion is unfettered, like all judicial discretion it must be exercised on reason and not caprice and such exercise must not be arbitrary or oppressive.

3. Among the general matters the Court takes into account in deciding whether to grant an extension are the length of delay.

4. The rules of the Court must prima facie be obeyed and in order to justify a court in extending the time during which some step in the procedure requires to be taken there must be material on which he court can exercise its discretion.

5. Although the Court has unfettered discretion an applicant must explain

to the satisfaction of the Court what led to the delay.

6. The applicant had no explanation to give other than the fact that having filed a Notice of Appeal he waited for proceedings but even when these were ready he never made an effort to collect them.

Application dismissed with costs.

Cases

1. Samken Limited and another v Mercedes Sanchez Rau Tussel & another Civil Application No NAI 21 of 1990

2. Mutiso, Leo Sila v Rose Hellen Wangari Mwangi Civil Appeal No NAI 255 of 1997

3. Ratnam v Cumarasamy [1964] 3 All ER 933; [1965] 1 WLR 8; (1962) 28 MLJ 330

4. Grindlays Bank International (K) Limited v George Barbour Civil Application No NAI 257 of 1995

5. Trade Bank Limited (in Liquidation) v LZ Engineering Construction Limited and another Civil Application No NAI 282 of 1998

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 42, 74, 81(1)

Advocates

Mr Marube for Applicant