East African Court of Appeal - 1954

Immigration (Control) Ordinance (Cap. 51), section 6 — Prohibition of entry into Colony without entry permit or pass — Immigration (Control) (Exemption) Regulations — Regulation 3 (1) (e) — Application by wife for exemption for husband — Regulation 3 (5) — Whether wife "person aggrieved" and enitled to appeal.

Habeas Corpus — Immigration Control Ordinance, section 5 (1) (I,), 9 — Defence (Admission of Women and Children) Regulations, 1940. Regulation 3 (c) - Prohibited Jnimigrant — Deportation Order — Whether adopted child a "child for purposes of the Regulations — Immigration officer, revocability of decisions by —Affidavits must state source of information and belief.

Civil Procedure and Practice — Civil Procedure Ordinance, section 94 — Judgment entered on application under Order 35, rule 2 but before decree passed Submission in Court for an order to execute for the principal sum before ascertainment of costs — Whether submission competent — Order 21, rule 7 (2) — Whether application should be after passing the decree and in writing — Costs — Indian and English Procedure compared.

Civil Procedure and Practice — Civil Procedure Ordinance — Section Il — Competency of Transfer of suit by First Class Magistrate to Court of Liwali —Inherent jurisdiction of Liwali —Whether assumption of jurisdiction irregular — Section 16 — Whether applicable on appeal — Minor success — Costs — Kenya and Indian Procedure compared.

Criminal Procedure and Practice — Substitution of "X" for person named in particulars of charge — Whether prejudice to accused — Penal Code section 93 (2) — Official Corruption — Bribe tendered to police officer to withdraw charge Officer without legal capacity to quash charge — Whether offence committed — Sentence — Bribery by court clerk — Whether sentence excessive.

Criminal Procedure and Practice — Criminal Procedure Code, section 348 (2) —  Restriction on right of appeal to fine of Sh. 100 only — Whether order for costs is a penalty forming part of sentence for purpose of appeal.

Civil Procedure and Practice — Order I, rule 18, Summons for Third Party directions — Application by defendant to join third party as co-defendant —  Whether competent — Effect of section I (2) — Civil Procedure Ordinance — Whether recourse may be had to Order XVI A Rules of the Supreme Court, England.

Matrimonial Causes Ordinance (Cap. 145) — Section 9 — Divorce — Standard of Proof — Undefended Cause — Respondent served — Failure to appear — How far probative of guilt — Degree to which silence should be tken against respondent.

Criminal Law — Nairobi Municipality (General) By-laws, 1948 — By-law 314  —  Unlawful use of a building as a lodging house without licence — Whether occupants tenants or merely lodgers — Question of fact —Tests applied.

Company Law — Civil Procedure and Practice — Civil Procedure (Revised) Rules, 1948 — Order 9, rule 14 — Suit dismissed for want of appearance — Order 9, rule 15 — Application by plaintiff company for an order to have dismissal set aside — Intention to appear at hearing by "manager" — "Manager" per incuriam attending at wrong court — Whether limited company can appear by "manager" — Whether sufficient cause.

Criminal Law —Traffic Ordinance, Cap. 232 — Section 17 — Driving in manner Dangerous — Off wheels over centre line — Whether on wrong side of road —  Standard of proof — Whether negligence must be so great that if death caused it would amount to manslaughter — Whether guilty of offence irrespective of whether or not committing error of judgment.

Civil Procedure and Practice — Civil Procedure (Revised) Rues, 1948 — Order 50, rule 3 — Contents of Motion — Whether competent to amend — Costs.

Civil Procedure and Practice — Civil Procedure (Revised) Rules — Order 50, rule I — Whether applicant who has applied under the wrong rule may have at the hearing recourse to the right rule — Order 50, rule 3 — Contents of notice of motion — Whether notice must contain reference to a rule.

Criminal Law — Penal Code — Section 93 (2) — Bribe offered in respect of "imaginary offence" — Whether this amounts to official corruption — Criminal procedure and practice — Order of witnesses — Proper procedure — Defence witness giving evidence before accused — Effect — Criminal Procedure Code, section 356 — Bail allowed before filing of appeal — Effect on sentence.

Civil Procedure and Practice — Civil Procedure (Revised) Rules, 1948 — Order 5, rule 21 — Application to serve summons on an Indian in India — Order 5. rule 26 —Whether India a foreign country — Whether service by post competent — Constitutional Law — Status of India — Indian Independence Act, 1947 —Commonwealth Declaration,. 1949 — India (Consequential Provisions) Act, 1949 — Statute of Westminster, 1931 — Status of Pakistan, Burma and Eire compared.

Civil Procedure and Practice — Order 27, rule 2 — Summons for an order for a commission or letter of request for examination of witness in England — Whether evidence material — Delay in making application — Security for expenses of examination — Costs.

Matrimonial Causes Ordinance (Cap. 145), Section 24 (2) — Application for permanent alimony — Matrimonial Causes Rules, rule 44 (2) — Respondent failing to file an affidavit of means — Rules 9 (1) and 9 (2) — Service outside jurisdiction — Practice under Order 5, rule 24 — Insufficient time allowed for return — Adjournment — Order on respondent to file affidavit of means.

Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 233), section 4 (1) — Permitting use of an uninsured motor vehicle —Traffic Ordinance (Cap. 232), section 3 — Use of an unlicensed vehicle by servant—Section 26 — Permitting use of a motor vehicle without prescribed identification marks — Liability of master for act of servant in statutory offences — "Permitting" defined.

International Private Law — Comity — Maintenance Orders Enforcement Ordinance (Cap. 16) — Whether reciprocity with Southern Rhodesia — Jurisdiction to register foreign maintenance order — Maintenance order ancillary to decree of divorce — Whether Ordinance appropriate for enforcement —Whether court can enforce order without proof of foreign law — Civil Procedure and Practice — Whether a civil suit — Whether a civil or quasi-criminal proceeding — Whether enforceable by application to execute a decree — Debts (Summary Recovery) Ordinance (Cap. 8), section 12 (1) — Order enforceable as a fine — Criminal Procedure Code (Cap. 27), section 331 (1) — Directions as to procedure to enforce order by issue of distress warrant — Maintenance Orders Enforcement Rules, Rule 5 — Appication to appoint person to receive payment — Rules of Court, Part VI, Rule 2 (5) (9) — Application to be by summons in chambers.

Advocates' bill of costs for non-contentious business — Advocates Ordinance, 1949 — General provisions as to Remuneration — Part Vi—Civil Procedure (Revised) Rules, 1948 — Order 50, rule 1 — Procedure to obtain order for taxation to be by originating notice of motion—Civil Procedure Ordinance — Section 2 — Application amounts to a civil suit — Order 21, rule 7 (2) — Entry of judgment incompetent on application for execution merely — Advocates Ordinance, 1949 — Section 69 (2) — Procedure in application to enter judgment — Chancery and King's Bench Procedure under Solicitors Acts compared —Costs of invalid taxation.

Mandamus — Immigration (Control) Ordinance section 7 (1) Class D — Meaning of "person intending to carry on a trade, business or profession ... on his own account" — Whether includes a partner — Function of Principal Immigration Officer —Principles by which Court guided in issuing mandamus.

Bankruptcy Ordinance (Cap. 30) — Sections 144, 148 and 137 (1) (r) —Prosecution ordered and instituted in absence of report and formal application by Official Receiver — Whether a nullity — Evidence — Effect of section 17 (8), Bankruptcy Ordinance on Indian Evidence Act, section 132 — Incriminating answer in public examination may be used in evidence against bankrupt in prosecution — Whether conviction may be founded solely upon — Criminal Practice and Procedure — Proper mode of putting record in evidence.

Civil Procedure and Practice—Application to transfer suit—Civil Procedure Ordinance — Section 18 — Forum conveniens — Section 11 — Subordinate Court with concurrent jurisdiction — Kenya (Colony) Order in Council, 1921 —  Article 4 (2), jurisdiction of Supreme Court in petty suits — Whether principle one of jurisdiction or procedure — Duty on plaintiff to institute Suit in Court of lowest grade — "Competency" defined — Costs.

Trust and Succession — Charitable Trust — Fund in trust to establish Memorial — Fund insufficient — Charitable intention — Cy-près — Jurisdiction — Condition established that directions cannot be carried into effect.

Indian Land Acquisition Act, 1894, sections 18, 23, 24 — Compensation — Crown leaseholders' land compulsorily acquired — Hypothetical scheme of development — Market price — Valuation of land — Costs.

Civil Procedure and Practice — Civil Procedure Ordinance, section 97 — Civil Procedure (Revised) Rules, 1948, Order 6, rule 29 — Application for plaint to be struck out — Tort — Suit claiming damages for alleged tortious acts and libel — Whether resonablc cause of action disclosed—Whether frivolous and vexatious and abuse of process — Advocates Ordinance, 1949 — Failure of public officer to comply with provisions — Whether provisions imperative or directory — Relevancy of averments — Whether judicial proceeding — Whether absolute immunity.

Immigration (Control) Ordinance (Cap, 51 ) — Immigration (Control) Regulations, 1948, regulation 3 (1) (c) — Rule nisi on Principal Immigration Officer to show cause why a writ of mandamus should not issue to him to endorse a certificate of permanent residence on applicant's passport — Jurisdiction — Whether Principal Immigration Officer "satisfied" by applicant in terms of regulation 3 (1) (c) — Rule discharged — Costs.

Civil Procedure and Practice — Civil Procedure (Revised) Rules, 1948 — Order 6, rule 3 — Order for particulars within specified time, in default, suit to be dismissed — Condition not fulfilled — Application for dismissal of suit — Whether Court had discretion to extend time — "Time order", necessity for precise terms — Distinction between possible illusory compliance by filing ambiguous particulars and failure to file any — Whether suit automatically dismissed on lapse of time — Whether application for declarator of dismissal competent — Costs.

Civil Procedure and practice — Service on a limited company — Civil Procedure Ordinance, section 2 — Special Procedure prescribed by other law — Order 28, rule 2 — "Subject to any statutory provision" service to be by the rule — Companies Ordinance (Cap. 288), section 349 (1) — Statutory provision for service on limited company — Service by affixing to a door not "leaving at" registered office — Order 5, rule 14 — Procedure under — Kenya and English Procedure compared — Order 9, rule 10 — Application to set aside judgment by default — Costs.

Civil Procedure and Practice — Civil Procedure (Revised) Rules, 1948 — Order 9, rules 10 and 24 — Application to set aside judgment by default — Attachment of movable property served on defendant but not executed — Whether application statute barred — Order 21, rule 49 — Prohibitory Order executed — Indian Limitation Act, 1877, Article 164 — Civil Procedure Ordinance, section 97 —Whether inherent jurisdiction of Court can be invoked out with limitation on grounds service and judgment nullities.

Certiorari — Mandamus — Liquor Ordinance (Cap. 266). Section 50 — Forfeiture of licence — section 23 (4) "hearing" means oral hearing — Necessity for giving licensee opportunity to make written representations — Natural justice.

Criminal Procedure and Practice — Order releasing convicted person on probation — Criminal Procedure Code, section 363 — Application by Attorney-General for enhancement of sentence — Whether Court has jurisdiction to entertain application — Whether application competent — Section 354 (1) (b) — Revising Court's power to reverse order and remit for sentence — Whether Probation Order made under Probation of Offenders Ordinance (Cap. 79), section 3 (1) or Criminal Procedure Code, section 340 — Whether willingness by convict to enter into probation bond is a bar to revision — Whether appeal competent after revision — Whether Probation Order valid unless made under conditions legislated — Order null — Remit for sentence — Direction that sentence not to be nominal.

Criminal Law — Criminal Procedure and Practice — Criminal Procedure Code, section 229 — Failure to comply with — Magistrate taking into account extra-judicial statements of accused persons as preliminary inquiry not put in evidence by recording witness — Effect of — Criminal Procedure Code, section 236 — Magistrate committing after being influenced by extra-judicial statement wrongly put in — Whether proceedings a nullity — Whether information could properly be preferred — English and Kenya procedure compared.

Criminal Law — Evidence — Indian Evidence Act, section 25 — Police Ordinance, 1948, section 2 and section 4 — Kenya Police Force Reserve Ordinance. 1948, section 2 — Kenya Police Force Reserve (Amendment) Regulations, 1952 —Regulation 2 (1) — Reserve Police Officer having equivalent rank of Assistant Inspector in Regular Police Force — Whether confession taken by Reserve Police Officer may be proved in evidence.

Criminal Law — Penal Code — Section 116 (1) (f) — Attempting wrongfully to interfere with or influence a witness in a judicial proceeding — Right of interested person to interview potential defence witnesses — Impropriety of defence interviewing a prosecution witness — Offence committed if a person "likely to be a witness" is wrongfully influenced — Misconception as to gravity of offence — Sentence reduced.

Civil Procedure and Practice — Civil Procedure (Revised) Rules, 1948 — Suit stood over generally on agreement to arbitrate  — Motion for reference to be implemened by order of Court — Order 50, rue 1 — Whether competent.

Criminal Law — Traffic Ordinance (Cap. 232) section 20 (4) (c) — Allowing a motor vehice to cause unnecessary obstruction or inconvenience — Whether paragraph imposes absolute prohibition — Whether opening car door and causing accident necessarily an offence — Necessity to prove iiicns rca.

Civil Procedure and Practice — Summons in Chambers — Ex parte application by decree-holder for order to authorize court broker to break into store — Effect of section 45. Civil Procedure Ordinance — Duty of court broker — Costs.

Contract — Tort — Railways and Harbours Administration Act, 1950 — Section 4 — Whether contract of carriage made with Commissioner — Liability of Commissioner for negligence of engine driver — Whether negligence must be wilful.

Increase of Rent (Restriction) Ordinance, 1949 — Section 34 (3) — Rules of Court, rule 5 (1) — Summons for stay of execution—Section 16 (5)—Order postponing possession — Rule 5 (1) — Whether stay of execution for purpose of appeal —Rule 5 (2) — Refusal of Board to order stay — Whether summons appropriate —Civil Procedure (Revised) Rules, Order 47, rule 4 — Rules of Court. rule 12 — Civil Procedure (Revised) Rules, 1948, Order 41, rule 4 — Order 50, rule 1 — Whether summons appropriate.

Immigration (Control) Ordinance (Cap. 51) — Section 7 (1) Class A and (3) —Appeal against decision of Principal Immigratibn Officer refusing entry permit — Section 5 (1) (f) — Appellant a prohibited immigrant — Section 2 (1) (b) (c) —Whether appellant a permanent resident — Immigration (Control) Regulations — Regulation 3 (1) (c) — Whether appellant entitled to be issued with a certificate of permanent residence.