East African Court of Appeal

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 41, rule 4 of. the Civil Procedure
(Revised) Rules, 1948, or inherent jurisdiction can be invoked.

Civil Procedure and Practice-Civil Procedure (Revised) Rules, 1948-Order 21, rule 47--Application by decree-holder to attach sum of money in hands of Court due to judgment-debtor-Whether notice to judgment-debtor essential-Whether rule nisi should issue.

(Appeal from the decision of H.M. High Court of Tanganyika, Edmonds, Ag. J.)
Trust—Wakf—Separate dispositions of land and house standing thereon—Whether
possible—“Native”—Land (Law of Property and Conveyancing) Ordinance,
, sections 2 and 15.

Appeal from decision of H.M. Supreme Court of Kenya sitting in Emergency

. . Assize, Sherrin, Ag, J.) •
Possession Joint Possession Penal Code, section 23.

(Appeal from the decision of H.M. Supreme Court of Kenya, sitting in

Emergency Assize, Law, Ag. J.)

Evidence—Expert evidence—Evidence of police officer as to home-made gun—
Possession—Joint possession—Judicial notice of notorious facts—Indian
Evidence Act, section 45.

.(Appeal from decision of H.M. Supreme Court of Kenya, MacDuff, J.)

Justice Whether seen to be done Consent to prosecute Trial by District Com-
missioner who authorized prosecution Validity of consent not apparent

ex facie—Penal Code sections 71 and 72.'

(Appeal from the decision of H.M. High Court of Tanganyika, Crawshaw, J.)
Alternative charges based on same evidence—Transfer of name of accused to
count with which he was not charged—Irregularity—Agent provocateur—
Mens rea—Societies Ordinance, section 20—Penal Code, section 60 (1) (d)
and (2)—Criminal Procedure Code, sections 260 (2) and 346.

(Appeal from the decision of H.M. High Court of Ugandan, Griffin, C.J.)
Evidence—First Report—Corroboration—Evidence Ordinance, section 155—
Remitting case to first appellate court to consider point not taken in said
court.

Civil Procedure and Practice-Hindu Law-Custody of child-Hindu Marriage, Divorce and Succession Ordinance, Cap. 149-Civil Procedure Ordinance, Cap. 5, sections 89, 79 (b) and 97----East Africa Order in Council, 1897, Article 15- East Africa Order in Council, 1902, Article 22-East Africa Order in Council, 1906, Article 11-Rules of Court, Part VI-How Court may be
approached for an order for custody of child-Whether Hindu law applies in case of child of Hindu marriage-Whether application simpliciter for custody provided for under Cap. 149; whether invocation of inherent power of Court correct-Compared: Indian Civil Procedure Codes of 1877 and 1908, sections 647 and 141 respectively-Historical application of Chancery custody procedure to Kenya.

(Appeal from the decision of H.M. Supreme Court of Kenya, Hooper, J.)
Allocatus—Whether evidence to be taken—Criminal Procedure Code, section 325.

(Appeal from the decision of H.M. High Court of Tanganyika, Lowe, J.)
Evidence Admissibility of evidence of third party as to communications between
husband and wife Coercion Avoidance of criminal responsibility by wife
according to tribal custom for act or omission in presence of husband
Indian Evidence Act, section 122 Penal Code (Kenya), section 20. 

(Appeal from the decision of H.M. High Court of Tanganyika, Harbord, J.)

(Appeal from the decision of H.M. High Court of Tanganyika, Crawshaw, J.)
Murder—Manslaughter—Burden of proof.
The appellant was found guilty of murder and sentenced to death. He admitted
the killing but pleaded that his offence was only that of manslaughter because at
the time concerned he was too drunk to be able to form an intent to kill or to
cause grievous harm.

(Appeal from the decision of H.M. Supreme Court of Kenya, Mayers, J.)

(Appeal from the decision of H.M. Supreme Court of Tanganyika,

Sir Herbert Cox, C.J.)

Husband and wife—Conspiracy—Monogamous and polygamous marriages—
Presumption as to property in matrimonial home—Presumption under section
114, Indian Evidence Act—Retaining—Receiving—Prosecution not able to
prove state of accused’s mind when property came into his possession—Penal
Code, sections 4 and 110.

(Appeal from the decision of H.M. Supreme Court 6f ..Kenya, Harley, Ag. J.)

(Appeal, from the decision of H.M. High Court of Tanganyika, Lowe, J.)

Appeals dismissed.

(Application for leave to adduce evidence on the hearing of an appeal from;
decision of H.M. Supreme Court of Kenya, Cram, Ag. J.)
Eastern African Court of Appeal Rules, 1954, rules 19, 52 and 74—Application?
to adduce additional evidence at appeal.

(Appeal from the decision of H.M. Supreme Court of Kenya, Mayers, J.)
By-law Mombasa Municipality (Building and Sub-division) By-laws, by-law 127
Whether intra vires Municipalities Ordinance, section 77, and the Public
Health Ordinance Notice under said by-law by servants of municipal board
without prior authority Whether invalid notice the subject of ratification 
Public Health Ordinance, section 118 (1) Municipalities Ordinance, sections
7(7 and 132 Damages Award of special damages Diminution of site value
or injury to reversion.

(Appeal from the decision of H.M. Supreme Court of Kenya, Cram, Ag. J.)
Rent Control Board—Review of its own ex parte decisions—Increase of Rent
(Restriction) Ordinance, 1949, section 9 (1).

(Appeal from the decision of H.M. High Court of Tanganyika, Harbord, J.)

Sale of goods—Sale by description—Commercial description of goods—Accept-
ance of goods—Repudiation—“Black pepper”—Sale of Goods Ordinance

(Cap. 214), sections 13 (1) (c), 16 (fr), 20 and 59 (b).

(Appeal from the decision of H.M. Supreme Court of Kenya, Hooper, J.)
Provocation—Proof of—Murder—'Manslaughter—Acceptance of plea of guilty of
manslaughter on charge of murder—Penal Code, section 203.
The appellant was convicted of murder.

Civil Procedure and Practice-Execution-Civil Procedure (Revised) Rules, 1948- Order 21, rule 7 (2), Appendix D, Form 5-Application: for attachment and sale of movable property-"Subject to bill of sale, if any"-Risk on sale of vehicle which might be subject to chattels mortgage-Duty of attaching creditor-Duty on advocate as officer of the Court-Burden on Court officer--Whether words objectionable as attempt to pass risk to Court officer.

(Appeal from the decision of H.M. Supreme Court of Kenya, Mayers, J.)
Divorce—Nullity—Court to ensure it has jurisdiction before hearing evidence
supporting allegations—Submission of “No case”—Matrimonial Causes
' Ordinance (Cap. 145), section 4 (a)—Matrimonial Causes Rules, rule 4 (1)—
Application to Court of Appeal to allow amendment of petition—Eastern
African Court of Appeal Rules, rule 74—Remission of issue for decision by
Supreme Court—When Appeal Court will hear additional evidence.

(Appeal from the decision of H.M. Supreme Court of Kenya,

Sir Kenneth O’Connor, CJ.)

(Appeal from the decision of H.M. Supreme Court of Kenya, Mayers,'J.)
Security—Security not furnished within due time—Civil Procedure (Revised)
Rules, Order XXV, rule 2 (1) and (2), and Order XL1V, rule 1—Whether
. application to reinstate suit under Order XXV, rule 2 aforesaid governed by
. procedure for a review of judgment—Whether lack of funds is “sufficient
. cause” for Order XXV, rule 2 aforesaid.

(Appeal from the decision of H.M. High Court of Tanganyika, Sir Herbert

Cox, C.J.)

Charge—Information—Several counts—Alternative charges—Specifying punish-
ment section in statement of offence—Penal Code, sections 21, 285 and 286

—Criminal Procedure Code, sections 135 to 138 (inclusive)—Accused
punished more than once for same unlawful act.

(Appeal from the decision of H.M. Supreme Court of Kenya, MacDuff, J.)
’ Murder—Manslaughter—Provocation—Burden of proof—Accused insulted by
deceased—Penal Code, section 204.

(Appeal from the decision of H.M. Supreme Court of Kenya, Cram, Ag. J.)
Originating Summons—Service upon persons not added as parties in title of suit—
Decree—Dates to insert in decrees—Order—Drawing up of formal Order—
“Order”—Civil Procedure (Revised) Rules, Orders 20, rule 7, 36, rules 1, 5
and 7 and 42, rule 1 (1) (o).

(Appeals from the decision of H.M. High Court of Uganda, Jones, Ag. J.)
Judges’ Rules, rule 8—Application in East African territories.

(Appeal from the decision of H.M. High Court of Tanganyika, Lowe, J.)
Malicious prosecution—False imprisonment—“Reasonable and probable cause’”
. —Arrest—Warrant of Arrest—Irregular Warrant—Whether void or voidable­
—Criminal Procedure Code sections 27, 90 and 346—Police Ordinance (No..
51 of 1952), section 44 (1).

(Appeal from the decision of H.M. Supreme Court of Kenya, Connell, J.)
Advocate—Whether right of audience before Eastern African Court of Appeal
during period of suspension—Advocates Ordinance (Kenya), sections 2
and 15.

Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 9,
rule 9 (2)—Defence to counterclaim lodged out of time—Application to
strike out and enter judgment—Discretion of court—Costs.

Civil Procedure and Practice-Civil Procedure (Revised) Rules, 1948-Order 9, rule 9 (2)-Defence to counterclaim lodged out of time-Application to strike out and enter judgment-Discretion of court-Costs.

(Appeal from the decision of H.M. High Court of Tanganyika, Abernethy, J.)
Charge laid as receiving stolen property—Whether conviction for retaining stolen
property may be substituted—Ingredients of offence of retaining stolen
property—Penal Code, section 311 (1)—Uganda Penal Code, section 298—
Kenya Penal Code, section 317 (1).

(Appeal from the decision of H.M. Supreme Court of Kenya, Sir Kenneth

O’Connor, C.J., and Paget Bourke, J.)

Possession Joint possession Master and servant Matters which may legiti-
mately be considered to ascertain servant’s joint possession Indian Evidence

Act, section 114.

(Appeal from the decision of H.M. High Court of Uganda, Ainley, J.)
Possession of property unlawfully obtained To what “which may reasonably be
suspected of having 'been stolen” in section 299 (1) Penal Code refers 
Theft Claim of right Penal Code, sections 245 (1), 247, 252, 260 and 299
(1) Criminal Procedure Code, section 117.

Prerogative writ—Writs of certiorari and mandamus—Landlord and tenant-
Increase of Rent and Mortgage (Restrictions) Ordinance, 1940—Civil Pro-
cedure and Practice—Use and function of writs in Kenya—When writs lie-
What record should contain—Whether affidavit evidence admissible—Assess-
ment of standard rent by Rent Control Board—Whether assessment reached

On wrong principles—Whether denial of natural justice—Or error of law on
face of record—Procedural obligations of Rent Control Board—Manner in
which Board may obtain its information—Certiorari a discretionary remedy

—Effect of long delay in applying—Appeal competent in law against assess-
ment—Increase of Rent (Restriction) Ordinance, 1949, section 5 (1) (p)-

Board's power of review—Review refused without error on face of decision-
Whether certiorari competent—Mandamus—No demand or refusal—Whether

mandamus competent.

(Appeal from the decision of H.M. High Court of Tanganyika, Abernethy, J.)
Appeal—Burden of proof on first appeal—Principles on which first appellate
court should proceed in upholding criminal appeals—Power of Court of
Appeal on second appeal to restore conviction entered by trial court quashed
on first appeal—When exercised—Obtaining goods by false pretences—
Whether there must be specific finding of an intent to defraud—To “defraud”
—Meaning.
The appellant was convicted on two counts, one being for obtaining goods
by false pretences.

(Appeal from the decision of H.M. High Court of Tanganyika, Harbord, J.)
Factory—Fencing—Extent of duty to fence—Gaps—Test of “foreseeability”—
Factories Ordinance, 1950, section 22 (1), 23 (1), 72 (1), 73 and 75—Reversal
by first appellate court of findings of fact by trial court—Whether question
of law.

(Appeal from the decision of H.M. Supreme Court of Kenya, Cram, Ag. J.)
Building Scheme—Injunction.
The appellant company, owners of some 270 acres of land, and being
desirous of disposing thereof, divided it into 20 agricultural holdings. They laid
out and made a road over some of the land and provided a water supply and
■storage tanks. Intending purchasers were, shown a printed form of agreement for
sale, intended and specially prepared for use in connexion with the land, and
the agreement contained, inter alia, provisions for the transfer to purchasers
“in the form approved by the vendors’ solicitor for. transfer on sales of plots,”
and for prohibition of user except for residential purposes.

(Appeal from the decision of H.M. Supreme Court of Kenya, MacDuff, J.)

. (Appeal from the decision of H.M. Supreme Court of Aden, Campbell, J.)
Finding of fact—Reversal by appellate court—Principles.

(Appeal from the decision of H.M. Supreme Court of Kenya, Windham, J.)

(Appeal from the decision of H.M. Supreme Court of Kenya, Hooper, J.)