East African Court of Appeal - 1938

Title to land—Registered land—Certificate of ownership—Easement —Prescription—Proof of title—Evidence—Limitation Ordinance, 1934, sec. 41—Land Titles Ordinance, Cap. 143—Registration of Titles Ordinance, Cap. 142.

Sale—.Warranty of title—Sale by apparent owner—Definition of
'seller"—Sale of Goods Ordinance, 1930, secs. 2 (1), 23 and
26 (2).

Money lending—Memorandum of Contract—Date of loan—Expres-
sion of rate of interest—Limitation—Acknowledgment of liability

and undertaking to "try our best to liquidate the loan" whether
sufficient undertaking to repay—Moneylenders Ordinance, 1932,
sections 10 (2) and 17 (1).

Practice—Civil Procedure—Motion for judgment—Affidavits--Civil

Procedure Rules Order XXXIII—Whether plaintiff canfile sub-
sequent affidavit to cure defect in previous one—Triable issue-
Unconditional leave to defend.

Distress—Receiver for the Debenture Holders appointed after distress
—Claim by Receiver for goods alleged to be distrained—Right of
Receiver to sue in his own name.

(Appeal from decision of Webb, J. (Kenya)). Pleading—Practice—Plaint—Civil Procedure Rules, O.VI rr. 27, 28 and 29.

Appeal from decision of Thacker, J. (Kenya). Marriage—Nullity of Marriage—Delay in suing—Acquiescence— Strict proof of non-consummation.

(Appeal from decision of Francis, J. (Uganda)) Passing-off—Trade Mark—Injunction.

Appeal from decision of Johnston, Ag. J. (Uganda).

Principal and agent—Indemnity--Indefinite instructions by principal-
Discretion of agent—Authority of agent—Indent on manufac-
turer for very urgent shipment of various goods subject to accep-
tance by manufacturer—Agent appointed to confirm the indent

and accept and, pay for the goods indented for—Acceptance by

agent of less gbods than those indented for owing to manufac-
turer's inability to supply all the goods—Payment by agent-
Delivery refused by principal—Action for money paid—Indian

Contract Act, section 222.

Appeal from decision of Dalton, C.J. (Tanganyika). Application for leave to defend—Indian Civil Procedure Rules, 1908, O.XXXVII—Leave to defend—Triable issue.

Appeal from decision of Theeman, Ag. J. (Tanganyika).

Practice—Application by an Administrator for release—originating
Summons—Order XXXIV, Rules I and 2.

Bankruptcy Notice—Validity—Misstatement of amount actually due
—Set off for costs—"Judgment", Bankruptcy Ordinance, 1930,
section 4.

Bankruptcy—Conditional discharge.

Advocate—Unprofessional conduct--Rules of Court (Legal Prac-
titioners) 1926, Rule 7 (1).

Limitation—Foreign judgment—Limitation Ordinance, 1934, secs. 3
and 41—Civil Procedure Ordinance, 1924, sec. 2—Indian Limita-,
tion Act, 1877, Art. 117.

Mortgage—Chattels mortgage—Power of Sale—Land and Agricultural
Bank Ordinance, 1930 (Auction sale under section 45A)—Notice
of sale—"Subsequent mortgagees"—Leave to bid—Powers of

Land and Agricultural Bank of Kenya—Chattels Transfer Ordin-
ance, 1930, section 29—Whether fiduciary relation.

Right of appeal—Native Tribunals Ordinance, 1930, section 34-
Appeal from decision of Provincial Commissioner—Civil . Proj
cedure Ordinance, 1924, section 65 (1).

Res judicata—Decision of Native Tribunal—Civil Procedure Ordin-
ance, .1924, section 7.

Application for leave to appeal out of time.

Mining Ordinance, 1933—Mining (Amendment) Ordinance 1934-
Accident—Inquiry by Magistrate—Section 85—Compensation--

Assessment by magistrate—Section 86 (2)—"Permanent incapaci-
tation"—Costs.

(Appeal from decision of Gamble, J. (Uganda)). Appeal—Finding of fact.

Civil Procedure—Garnishee—Trial of issue—Assignment of decree

during pendency of execution proceedings—Parties—Practice-
Continuance of proceedings or suit—Right to appear—Absence

of party—Definition of suit—Civil Procedure Ordinance, secs.
2 (23), 34 and 38—Civil Procedure Rules, 0. JX, r. 19, 0. XIX,
r. 13, 0. XX, r. 4, 0. XXI, rr. 9 and 12.

Moneylenders Ordinance, 1932, section 10 (1)—Delivery of copy of
memorandum of the contract.

Appeal from decision of Webb, J. (Kenya).

Appeal from decision of McRoberts, J. (Tanganyika).

Bankruptcy—Creditors' petition—Act of bankruptcy committed

through agent—Agent's authority—Substituted service—Bank-
ruptcy Ordinance, sections 3 (1) (h) and 3 (2)—Bankruptcy Rules,

Rule 117.

(Appeal from decision of H.M. Consul General’s Court of Abyssinia at Addis Ababa). Bankruptcy—Proof of debt—Contract—Foreign Bankruptcy or Insolvency—Lex loci contractus—Conflict of laws.

Appeal from decision of Wilson, J. (Tanganyika). Attachment of immovable property—Execution completed by seizure: —Liquidation—Companies Ordinance (Tanganyika), secs. 173, 176 and 263 (2).

Master and servant—Negligence of servant—Liability of hirer of
motor lorry for negligence of driver.

Mandamus—Liquor Ordinance 1934, sections 29 and 33—Res Judicata
—Previous decision of Supreme Court between the same parties
—Pendency of appeal.

Bankruptcy—Scheme of Composition—Approval of Court—Wishes of
• Creditors—Official Receiver's Repo rt—In te rests of minority of
creditors—Creditor relatives—Bankruptcy Ordinance—Improper
conduct—Failure to keep proper books of account—Failure to
account.

Bankruptcy—Application de novo for discharge after a previous

application for discharge had been absolutely refused—Bank-
ruptcy Ordinance, 1930, section 100.

The facts appear sufficiently from the judgment.

(From H.M. High Court of Tanganyika) Murder—Evidence—Dying declaration—Res gestce—Circumstantial evidence-^-Corroboration.

Corporal punishment—Sentence—Jurisdiction of Subordinate Court
of third class—Criminal Law—Criminal Procedure Code, section
10 (3)—rPenal Code, sections 27 (3), 32 and 33.

Criminal Law—Right of appeal—Confirmation—Whether order on
confirmation bars right of appeal—Criminal Procedure Code,
sections 11, 333 and 340.

Appeals from convictions by H.M. High Court of Tanganyika.
Criminal law—Evidence—Accomplice—Extra judicial confession—
Proof that confession was voluntary—Corroboration—Accessory*
after the fact.

Appeal from conviction by H.M. High Court of Uganda.
Criminal Law—Evidence Ordinance (Laws of Uganda), Cap. 68, sec.
24—Confession to a Chief.

(From H.M. High Court of Tanganyika) Murder—Extended jurisdiction—Revision—Retrial—Appeal—Order detrimental to accused—Criminal Procedure Code (Tanganyika), secs. 12 (3), 16, 17, 18, 317.(From H.M. High Court of Tanganyika) Murder—Extended jurisdiction—Revision—Retrial—Appeal—Order detrimental to accused—Criminal Procedure Code (Tanganyika), secs. 12 (3), 16, 17, 18, 317.

(Appeal from decision of 1st Class Subordinate Court of Mwanza, Tanganyika) Criminal Law—Absence of prosecutor—Validity of trial.

Appeal from conviction by H.M. High Court of Uganda.

Criminal Law—Misdirection—Conviction affirmed in spite of mis-
direction.

Appellant appealed from a conviction of conspiracy to obtain

money by false pretences. The learned trial Judge misdirected him-
self as to the effect of the evidence on one serious question and on

other points of minor importance.

Evidence—Dying declaration—Circumstantial evidence—Murder— Corroboration.

Evidence—Deposition—Witness—Confession to police—Forgery-— Signature per pro—Indian Evidence Act, section 25—Criminal Procedure Code (Tanganyika), sec. 265—Penal Code (Tanganyika), Chapter XXXIV.

Creating disturbance so as to be annoyance to residents or passengers
—Nairobi Municipality By-laws, 1929, By-law 565 (10)—Ultra
Vires—Uncertainty.

Criminal Law—African private school—Closure order—Education
• Ordinance, 1931, sec. 34—Service of closure order—Alteration
of premises.

Appeal from conviction by H.M. Supreme Court of Kenya.