East African Court of Appeal - 1942

vfus1im Subordinate Courts—Procedure—Appropriate codes of Civil Procedure and Evidence—Civil Procedure Ordinance 1924 and Indian Evidence Act or Mohammedan Laws of Procedure and Evidence—Mohammedan Yamin or deciding oath—Courts Ordinance 1931 Section 12—"so far as the same may be applicable and suitable"—Civil Procedure Ordinance, 1924, Section 1 (3) and Section 2 (3)—Zanzibar Court Procedure—Indian Evidence Act 1872—Applied Thdian Acts.

Mohammedan Estate—Negligence by advocate—Caveat in probate proceedings —Power of Attorney—Caveator's inheritance precluded by another heir, a grandmother, having an interest in the estate—Table of descent—InterestBare possibility of interest in estate of deceased—Meaning of 'interest'—Error .of judgment by advocate—Civil Procedure Code, 1924, Section 44 (1) (h)- -Probate and Administration Act, 1881, Section 69.

Clearing clerks — Whether agents or independent contractors — Custom — Harbours Regulation Ordinance, 1928, Sections 17, 27 (2) and 47 — Endorsement of Bill of Lading — Definition of "Terminal and other charges" in Section 17(4) —Right to exercise lien in respect of penalty.

Civil Procedure Ordinance, 1924—Limitation Ordinance, 1934, Sections 5 (1) and 40—Defence of Limitation to be pleaded spcifically—Proof of promissory note—Admission of validity by advocate. The facts sufficiently appear from the judgment.

Land Titles OrdinanceCap. 143—Sections 6, '17 and .18—Jurisdiction—Unregis- •tered land—No claim made—Land Registration Court only competent Court. to adjudicate—Rights of Crown. The facts sufficiently appear from the judgment.

Divorce—Petition—Un reasonable delay in presentation—Discretion of Court..

Costs of Solicitor Trustee.

Evidence—Evidence and finding in former suit taken into consideration in deciding present suit—Different parties in later suit—Costs. The facts sufficiently appear from the judgment. The plaintiff appealed.

Divorce—Dissolution of marriage—Dicretion Statement.

Action to recover possession of dwelling house and furniture let on monthly tenancy to defendant — Termination of tenancy by notice — Refusal by defendant to give up possession — The Increase of Rent and of Mortgage Interest (Restrictions) Ordinance 1940 — Alternative accommodation — Discovery by Court that Ordinance not applied to Mombasa — Requisition of house under Defence Regulations 1939 — Costs of action.

Res judicata—Decision of Native Tribunal—Civil Procedure Ordinance, 1924, Section 7. The facts sufficiently appear froth the judgment.

Code of Civil Procedure—Judgment-debtor—Application for execution of decree —Order XIX Rule 8 (2)—No evidence as to debtor's means—Order for imprisonment in default—Leave to appeal—Variation of original orderCourts (Emergency Powers) Ordinance, 1940.

Divorce—Dissolution of marriage—Decree nisi—Decree absolute—Abridgement of time—Application for—"Special Order"—General principles—Ill health of applicant—Interest of child—Object of six months interval—King's ProctOr—Functions of, in K

Appeal from Mudir's Court—Mohammedan Law—No cause of action by Mohammedan Law—No evidence by plaintiff—No proof of damage to plaintiff's characttr—No jurisdiction in Mudir's Court to entertain suitDecree of nullity made without jurisdiction.

Infant — Child of Mohammedan parents — Guardianship — What law applicable.

Arbitration—Order 43 Rule 14 (c). The plaintiffs in this action complained of certain acts and omissions on the part of the first defendant who was the Wasi or administrator of a dceased's estate in which all the parties were interested. The plaintiffs asked for administration by the Court and for accounts to be taken. The parties referied all m;tters in dispute to arbitration. An award was duly filed and the first defendant filed objections to it and'applied for an order setting aside the award on the ground inter alia that it was bad.on the face of it.

Action on Promissory Note—Wakala or Power of Attorney— Not stampedRegistration unnecessary. The facts sufficiently appear from the Ruling and Judgment.

Civil action—Submission during proceedings upon a point of law—Ruling by Magistrate during roceedings and before judgment—Appeal from ruling.

Wills—Construction—Bequest—Life annuity free of all duties and without deduction of income tax—United Kingdom, Kenya and Irish Free State income tax—Aggregation of annuity with income of annuitant to determine rate of tax—Appropriation of investments to answer annuity.

Criminal Law—Evidence of accomplice—Exclusive possession of stolen property
—Practice in joint trial on one accused pleading guilty and being called as
witness against co-defendant.

The Defence (Control of Prices) Regulations, 1942—Regulation 21—Refusing to furnish information.

Liquor Ordinance, 1934, section 44—Offences under section summarized—Sale
of liquor by servant of absentee master the holder of a wine merchant's and
- grocer's licences.

Detaining stores in regimental charge—Defence (His Majesty's Forces) Regula-
lions, 1941, Regulation 15 (1) (a)—Meaning of term "regimental charge".

Receiving stolen property—Presumption from recent possession—Theft and re-
ceiving—Evidence justifying conviction for receiving.

Cruelty to animals—Cruelly overloading a donkey—Meaning of cruelly—Cruelty

to Animals Ordinance, Cap. 160, section 3 (I), Laws of Kenya—Procedure-
Section 197,. Criminal Procedure Code.

Convicting magistrate not proceeding to sentence

Employment of Servants Ordinance, 1938, section 59 (e)—Desertion----Costs
awarded against convicted servant.

Murder—Evidence of age of accused—Onus on prosecution to prove age—Reasonable doubt.

Criminal Law—Sentence of fine—First principle governing amount of fine
inflicted

Criminal Law—Robbery—Jurisdiction of First Class Subordinate Court and
Supreme Court—Sections 289 and 290 Penal Code. -
Two accused persons were convicted by' a First Class Subordinate Court of
robbery with violence.

Robbery—Section 289, Penal Code—Three counts—Trial—Procedure—Evidence
disclosing use of violence—Jurisdiction of magistrate—Trial a nullity.

Criminal Law—Defence (Price of Goods) Regulations, 1940—Selling price regu-
lated goods at price in excess of maximum fixed price—Admission by

advocate of fact prejudicial to accused—Proof of order fixing maximum
price.

Criminal Law—Principles on which Court acts in appeal on facts.

Penal Code—Receiving stolen goods—Section 315 (1)—Identification in CourtProcedure suggested.

Official Corruption—Person employed in the public service—Captain in charge Military Salvage Dump, Nairobi—Persons belonging to the Military forces of the Colony—Penal Code, sections 93 and 5.

Evidence—Defilement of girl under 1, years—Unsworn testimony of complainant
—Corroboration.

Assaulting police officers in the due execution of their duty—Penal Code section 247 (b)—Possession of native intoxicating liquor—Native Liquor Ordinance, 1930—Conviction altered to one for common assault contrary to section 244 of the Penal Code—Strict proof should be adduced of the issue of an order by a headman under section 8 (a) of the Native Authority Ordinance, 1937.

Criminal Law—The defence—Compliance., with provisions of section 209 (1)
Criminal Procedure Code.

Mohammedan Law—Mother of infant daughter—Power to sue on behalf of infant—Shafi and Hanafi doctrines—Custody of money.

Mohammedan Law—Dissolution of marriage—Maintenance in past not provided—No cause of action—Order nisi made absolute without defendant's being given opportunity to show cause.

increase of Rent and of Mortgage Interest (Restrictions) Ordinance 1940—Section 8 (1) (d) Proviso (iii)—Dwelling-house previously occupied by LandlordContract for less than one year—Landlord wishing to re-occupy on termination of contract—Interpretation of "Himself".