Hussein t/a MN Transporters v Agro-Chemical & Food Company Ltd

High Court, at Nairobi

October 22, 2002

Mwera J

Civil Case No 717 of 1990

Contract – written contract - contract expiring – plaintiff declining to sign a new contract – parties continuing trading after expiry of contract – previous contract providing for 6 months termination notice – defendant terminating contract after giving 2 months notice – whether parties bound by terms of previous contract.

Contract – breach of contract – plantiff claiming damages for breach – no written contract existing at the time of alleged breach – whether plaintiff entitled to damages for breach.

The plaintiff had a written contract with the defendant on the basis of which the parties traded. When the contract expired the defendant prepared a new contract and sent it to the plaintiff for approval. This contract was however not signed by the plaintiff. The parties then continued trading but the defendant then terminated the contract after giving two months notice even though the original contract provided for six months notice. The plaintiff filed suit claiming damages for unlawful termination and breach of contract. The defendant counterclaimed for loss during transportation and certain monies due to the Customs department.

Held:

1. When the plaintiff declined to renew the contract after the previous one expired, there was nothing more between the parties binding them e.g on the six months notice. It could not be assumed that the terms that applied when a contractual relationship existed continued in force even when there was no contract in force.

2. The nature of the subsequent relationship may be inferred from the conduct of the parties and in this case it looked like the plaintiff was operating on a month to month basis because his payments were made that way. The court was therefore unable to find that the plaintiff was entitled to six months notice to terminate a contract which contract he had declined to sign.

3. There having been no contract to breach and so none was breached, the plaintiff was not entitled to general damages.

Suit dismissed, Defendant’s counterclaim allowed.

Cases

1. Bilquis Cinema Ltd v Monteiro [1967] EA 145

2. Sande, Charles v Kenya Co-operative Creameries Ltd Civil Appeal No 154 of 1992

3. Bagine, David v Martin Bund Civil Appeal No 283 of 1996

4. Kinyanjui, Johnson & another v Rachel Wahito Thande & others Civil Appeal No 284 of 1997

Statutes

No statutes referred.

 Advocates

Etole for the Plaintiff

Obaga for the Defendant

East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd

High Court, at Nairobi

October 22, 2002

Ringera J

Civil Suit No 1077 of 2002

Civil Practice and Procedure – affidavit - what deponent may depose to in interlocutory applications – whether an advocate may swear affidavit on behalf of his client in relation to contested matters of fact – what an advocate may/may not depose to in an affidavit - who is the appropriate person between a client and advocate to swear affidavit in reply to another affidavit sworn by rival advocate.

Advocate - affidavit - whether advocate may swear affidavit on client’s behalf - whether advocate may depone affidavit on - contested matters of fact - what an advocate may or may not depone to in an affidavit.

The defendant in this case had challenged ex-parte injunctive orders issued to the plaintiff which restrained the defendant from appointing a receivemanager to run the affairs of the plaintiff to recover a debt. An application filed by the defendant to set aside the said ex-parte orders was opposed by the plaintiff on the ground that the application was incompetent as the supporting affidavit contained contested matters of fact and the same was deposed to by an advocate who had no personal knowledge of the contested matters and the Plaintiff further argued that paragraph 3, 4 and 8(c) of the affidavit must be struck out.

The defendant contended that the advocate was replying to an affidavit deposed to by another advocate and it was not reasonable for a client to respond to the depositions of an advocate.

 Held:

1. An advocate should not be allowed to depose, on behalf of his client, on contentious matters which he has no personal knowledge in a case where he is appearing as counsel.

2. Paragraph 3, 4 and 8(c) of the affidavit would be struck out because they contained statements of facts of which the advocate had no personal knowledge;

3. Such an affidavit offended Order XVIII rule 3(1) of the Civil Procedure Rules.

 Cases

1. Caneland Limited v Dolphine Holdings & another High Court Civil Case No 1135 of 1998

2. Ngaca, Joseph Mwema v United Insurance Company Ltd High Court Civil Case No 1409 of 2000

 Statutes

 Civil Procedure Rules (cap 21 Sub Leg) order XVIII rule 3(1)

Advocates

Mr Akiwumi for the Defendant.

Mr Ngatia for the Plaintiff.

Criminal Law - charge of being in possession of narcotic drugs - appellant found in possession of 1,260 stones of bhang worth shs 2.5 million - convicted to ten years imprisonment or a fine of 2.5 million on his own plea of guilty - appeal - whether appellant's plea of guilty was unequivocal - whether charge was read to him in a language he understood - sentence reduced to five years imprisonment or a fine of kshs 1 million