East African Court of Appeal

Criminal Procedure and Practice-Evidence of extra-judicial statements made by accused-Accused should be asked before evidence is admitted whether he disputes admissibility-If accused disputes admissibility issue of admissibility must be tried before evidence of statement is admitted.

Execution---Order XXI, rule 14-Cross decrees in separate suits- deed of composition- whether remedy of execution by arrest suspended-Order 21, rule 2-"adjustment"-effect of non-certification.

Criminal procedure and practice-Framing of charge-Charge to contain details showing precise nature of offence-Plea-If accused's apparent intention is not to plead guilty, the Court must not accept the plea as one of guilty however. it is worded-Duty of Court to investigate mitigating circumstances alleged in plea of guilty.

Purchase by Sikh father of property in Kenya in name of son-Whether benami transaction-Whether presumption of advancement arises-Whether personal law applies-Kenya Order in Council, 1921, proviso to Article 4.

Theft-Penal Code, section 263-Wrong change given-Intent to defraud.

Recall of witnesses by magistrate after close of case for defence-Criminal Procedure Code, section 150.

Criminal Law – Penal Code, sections 270, 389, and 390 – Attempt to steal – Necessary ingredients of the offence – Attempt as defined in section 389 of the Penal Code.

Civil Procedure---Amended plaint filed without leave – Construction of Order 6, rule 19 – Meaning of “within 21 days” in rule 19 – Order 6, rule 21 – Application for disallowance of amended plaint – Order 49, rule 5 – Power to extend time for application under Order 6, rule 21 – Whether new allegation of fraud can be raised in amended plaint – Whether claim that could be statute-barred on date when amended plaint filed can be inserted – Whether claim for new relief can be inserted.

Bankruptcy Ordinance (Cap. 30), section 137(1)(r) – Bankrupt continuing to trade after knowing himself to be insolvent – Distinction between to "trade" and to carry on business – Construction of statutes – Bankruptcy Ordinance, section 17(8) – Bankruptcy Rules 55 and 317 – Civil Procedure Ordinance, section 3 – Civil Procedure Rules, Order XVII, rule 5 – Admissibility of Note of a private examination, and of the Public Examination in Bankruptcy, of debtor in subsequent criminal proceeding – Section 141 proviso – Sentence of fine for bankruptcy offence.

Landlord and tenant-Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954-Retail trade or business-Auctioneer and estate agent-Premises used wholly or mainly for business-Assistance afforded by similar English statutes.

Landlord and Tenant-Increase of Rent (Restriction) Ordinance, 1949--Construction of section 16 (1) (k)-Whether Central Rent Control Board bas the power to order compensation under section 16 (1) (k) if it has not ordered grant of new tenancy Whether making of Closure Order deprives the tenant of his right to continue his tenancy-Quantum of compensation-Court will not interfere with Board's award unless it is assessed on wrong principle. The facts appear sufficiently in the judgment.

Landlord and Tenant-Orders of Rent Control Board to vacate and to pay rent Increase of Rent (Restriction) (Enforcement of Determination and Orders of the Board and Appeals from the, Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950, rule 5-Application for stay of execution to Supreme Court after filing appeal-No previous application to Board-Competency-Whether Order XLI, rule 4 of the Civil Procedure (Revised) Rules, 1948, or inherent jurisdiction can be invoked.

Weights and Measures Ordinance, 1951, section 23-Whether employer criminally liable for act of employee-Mens rea.

Traffic Ordinance, 1953, section 43 (1) and (2)-In charge of motor vehicle while under the influence of drink-"Special reason".

Outlying Districts Ordinance (Cap. 44) S.7-Contents of charge.

Animal Diseases, rules 21 and 67-Animal Diseases Ordinance, section 21- Interpretation and General Clauses Ordinance, sections 2 and 15 (b) Whether breach of a rule is an offence  against the Ordinance under which the rule is made-Forfeiture.

Divorce-Constructive desertion-Pleadings-Conduct not amounting to cruelty Neglect of wife-Not justification to leave husband nor grounds for divorce.

Landlord and Tenant – Crown Lands Condition in Crown lease against subletting or parting with possession without Governor’s permission – Permission to sublet refused unless the rent did not exceed £500 a year – Subtenant in possession under verbal agreement to sublet to him for two years at £60 per month rent – Claim for rent at £60 per month – Effect of unregistered agreement for sublease when Governor’s permission refused. Transfer of Property Act, 1882, sections 106, 107, 116 – Crown Lands Ordinance, sections 126, 127, 129 – Acceptance of cheques tendered for rent at the rate of £500 a year coupled with refusal to sublet at less than £60 a month – Whether estoppel – Subtenant allowed to remain in possession and to pay rent after notice to quit by landlord – Application by landlord after serving notice to quit for reconsideration of refusal of permission to sublet and for permission to sublet to defendant at £60 a month – Waiver of notice to quit.

Criminal Procedure Code, section 77—Evidence in camera Concurrent sentences of imprisonment in default of fines, and non-cumulative fines, illegal.

Acting as a terrorist-Form of charge-Definition of terrorist- Regulation 8 FA (1) and regulation 34 (3) of the Emergency Regulations, 1952.

Landlord and tenant-Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954-Sections 9 and 10-Application by statutory tenant for a new lease refused by competent court-Whether tenant could oppose claim for mesne profits on grounds rejected by Court-Whether res judicata-Whether tenancy extended by section 10.

Outlying Districts Ordinance (Cap 44) S.7—Contents of charge.

Criminal Law-Penal Code, section 289-Unlawful use of vehicles, etc.-Construction of phrase "without colour of right".

Liquor Ordinance-selling beer for consumption on premises in breach of liquor licence in contravention of section 48., Cap. 266, Laws of Kenya-Construction of the word "premises".

Africans-credit control-Charge over land granted by African to non-African and registered-Registration of Titles Ordinance, Cap. 160, section 46-Indian Transfer of Property Act, 1882, section 58 Whether charge a simple mortgage-Credit to Africans (Control) Ordinance, Cap. 104, section 2 (1) (b)-Whether contract enforceable.

Criminal law-Police-Enquiry into suspected offence-Right to enter and to remain on private shop premises-Assault and obstruction-Whether in execution of duty-Penal Code, section 248 (b)-Whether authority to remain-Shop Hours Ordinance, section 15 (2).

Landlord and Tenant-Increase of Rent· (Restriction) Ordinance, 1949, section 16 (1);-Title of applicants-Order for possession of whole when part under Ordinance-Reasonableness matter for Board.

Landlord and Tenant-Increase of Rent (Restriction) Ordinance, 1949-Premises let as dwelling-house-Effect of use of one room as private office-By-laws prohibiting change of user except with permission-Presumption from protracted use.

Landlord and Tenant~Increase of Rent (Restriction) Ordinance, 1949-Central Rent Control Board-Jurisdiction-Determination of collateral question on which jurisdiction depends-"Business premises" or "dwelling-house"-let for business, trade or professional purposes, or as a place of residence finding
let as a place of residence-Proceedings in Resident Magistrate's Court to recover agreed rent-Rent assessed by Central Rent Control Board -Irrecoverability of excess, if premises let as a place of residence (controlled)- not if premises let for business, etc. (decontrolled)--Estoppel by previous judgment of Board-Res judicata-whether Resident Magistrate precluded from making own finding-Estoppel against statute-by previous judgment of either tribunal. ·

Criminal law-Burden of proof-Moving maize without a permit during the hours of sunset and sunrise contra sections 2 and 4 of the Movement of Maize Order, 1953, vide Government Notice No: 1451/53-Presumption of guilt:

Dishonoured cheque-Endorsement after notice of dishonour to endorsee with notice of dishonour-Whether endorsee can sue drawer on the cheque Bills of Exchange Ordinance, section 36 (1) (5), section 38, section 30 (1)--Presumption of value-Notice of dishonour, sections 49 and 55 (1) and section 50 (2) (c) (iv).

Landlord and Tenant-composition of Rent Control Board immaterial if no failure of natural justice-claim by tenant to be under Ordinance--estoppel tenancy of employee-vacant possession.

Damages-liability for Income Tax-effect of request by Counsel for both parties that damages be assessed without deduction for Income Tax.

Landlord and Tenant-Increase of Rent (Restriction) Ordinance, 1949-Consent order to grant lease of rebuilt premises-Stipulated rent based on rent restriction legislation-Legislation expired before lease executed-Power of Court to enforce Order.

Civil Procedure and Practice Order 29, rules 1 and 9-Institution of suit by individual, in a name other than his own--Plaintiff suing in a business name.

Traffic Ordinance, 1953, section 47 (1)-Criminal Procedure Code sections 208, 367, 372-Charge dismissed by Magistrate-Case Stated-Whether Magistrate should give reasons for dismissal.

Criminal Procedure Code, section 367-The meaning of hearing and determination by any subordinate court-Offences arising under section 164 of the Customs Management Act, 1952-Section 218 of the Criminal Procedure Code in respect of offences committed by Europeans-Magistrate's order to hold preliminary enquiry under Part VIII of the Criminal Procedure Code-Whether such order appealable by the Crown by way of Case Stated under section 367 of the Criminal Procedure Code.

Criminal Procedure Code, section 367-Indian Evidence Act-Whether wire recorder and wire recording admissible in evidence.

Stamp Ordinance (Cap. 259)-Transfer of shares between two companies not incorporated in Kenya-Shares in company incorporated. in Kenya-Whether transfer liable to stamp duty under section 4-Or exempted by section 30B. The facts appear fully in the judgment.

Landlord and Tenant-Lease-Breaoh of Covenant-Forfeiture suit for possession-Election to determine tenancy-Service of writ-Determination of tenancy-Transfer of lessor's interest-Right to enforce forfeiture by transferee-Transferee's right to possession-Indian Transfer of Property Act, 1882, section 109, 111 ,(g).

Divorce — Matrimonial Causes Ordinance, Cap. 145, section 5 — Matrimonial Causes Rules, rule 2 — Summons for leave to present petition for divorce before expiration of three years from date of marriage — Cruelty alleged — Reconciliation — Exceptional depravity or exceptional hardship — Discretion of Court — Necessity for particulars of attempts at reconciliation.

Contract-Breach-Sale of Goods Ordinance, Cap. 290, section 6-Absence of note or memorandum in writing-Whether acceptance of goods-Necessity to prove actual receipt-Goods consigned by carrier to third party-Whether carrier buyer's agent-Whether contract enforceable.

Advocate — Misconduct — Disciplinary proceedings — Functions of Supreme Court — Position of Court of Appeal — Standard of proof — Method of intituling proceedings — Advocates Ordinance, section 9 (3) (iii).

Civil Procedure and Practice - Foreign Tribunals Evidence Act, 1856 - Rules of Court, Part IX - Civil and commercial cause depending before court in Switzerland-Section 2 - Application to take evidence of witness in Kenya Whether competent in absence of certificate by accredited diplomatic agent Whether affidavit by agent in Kenya sufficient evidence - Whether commission rogatoire competent in absence of Convention-Whether application competent as exhibiting letters of request - Examiner not named - Whether Court can name examiner - Procedure after examination.

Muslim law — Divorce — Extent of jurisdiction of Kadhi over persons of different school — Selection of forum by plaintiff — Removal of proceedings into High Court.

Confession — Murder — Corroboration — Confession to murder without corrobora- tion — Whether sufficient to found conviction — Weight of confession.

Agreement — Agreement containing statutorily unenforceable term —Whether wholly inoperative or whether terms severable — Specific performance — 
Implied term — Land (Law of Property and Conveyancing) Ordinance, section 11 (1).

Criminal law — Wages Regulation and Conditions of Employment Ordinance, 1951, section 12 (2) — Alleged failure to provide employee with leave with full pay — Wages Regulation (Tailoring, Garment-making and Associated Trades) Order, 1955 — Part III, 4 (1) — Piece-worker — Whether employee — Whether employed on continuous service — Meaning of "full pay".

Landlord and Tenant — Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954, Part lI — Sections 10 and 11 (2) — Order for retroactive tenancy ultra vires — Necessity to find whether premises shop or store — Necessity to apply subjective and not objective test to discover quantum of rent — Whether current market rent "reasonable" rent — Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Rules, 1954 — Rule 11 — Functions of assessor.

Limiation — Public Officers' Protection Ordinance, Cap. 63, section 2 (a) — Appeal from declaration by Principal Immigration Officer — Appeal filed more than six months after declaration —Whether appeal time-barred.