East African Court of Appeal

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.

Crown Lands Ordinance (Cap. 155)—Mortgagee after purchase obtaining vesting
order from court—Municipalities Ordinance (Cap. 136) section 95—Premises
within Nairobi—Rates unpaid by mortgagor—Certificate by Town Clerk not
• produced—Refusal by Principal Officer of Crown Lands to register—Whether
refusal justified—Stamp Ordinance (Cap. 259) section 2—Definition of
"conveyance"—First Schedule Article 23—Whether vesting order liable to
ad valoreni duty.

Crown Lands Ordinance (Cap. 155)-Mortgagee after purchase obtaining vesting order from court-Municipalities Ordinance (Cap. 136) section 95-Premises within Nairobi-Rates unpaid by mortgagor-Certificate by Town Clerk not produced-Refusal by Principal Officer of Crown Lands to register-Whether refusal justified-Stamp Ordinance (Cap. 259) section 2-Definition of "conveyance"-First Schedule Article 23-Whether vesting order liable to ad valorem duty.

Criminal Law and Procedure – Criminal Procedure Code – Section 193 – Absence of Accused During Trial – Presence of Advocate – Section 99 – Whether Magistrate Could Dispense with Accused’s Presence – Whether Trial Illegal – Effect of Section 381 – Applicability – Propriety of Magistrate Importing Own Experience in Sentencing Without Supporting Evidence

Criminal Law and Procedure—Criminal Procedure Code, section 193—Absence
of accused during his trial—Accused's advocate present—Section 99, Criminal.
Procedure Code—Whether magistrate could have dispensed with presence of
accused—Whether trial illegal—Effect of section '381 Criminal Procedure' Code—Whether applicable—Propriety of magistrate importing own experi-
ence in absence of evidence to assess sentence.

Sale of Goods Ordinance (Cap. 290), section 41-Unpaid seller in possession as bailee-Whether lien subsists-Section 48 (2) (3) Unpaid seller's right of resale-Resale-Whether at fair market price.

Landlord and Tenant-Increase of Rent (Restriction) Ordinance, 1949-Section 16 (1) (a), (b)-Application by landlord for eviction Alleged non-payment of rent, wanton waste and letting of business premises for residential purposes Whether "illegal use'' or breach of obligations of tenancy-Section 16 (2) Whether Board exercised discretion judicially-Section 33B-Board visiting premises 10 form opinion on alleged waste-Board rejecting evidence and acting on own observations-Whether judicial-Section 5 (1)-Whether Board empowered to make an order for estimated cost of repairs.

Criminal Law-Penal Code sections 124 and 22 (d)---Conviction for counselling another to give false information to the police-Person counselled making different statements-Whether offence advised committed-Whether statement made false-Whether counselled statement false-Intention.

Criminal Law-Penal Code-Section 71 (a)-Being a member of the Mau Mau society-Section 71 (b)-Knowingly allowing a meeting of an unlawful society to be held in a house-Evidence-Risk of convicting on evidence of one eye-witness-Accomplice-Danger of conviction on uncorroborated evidence of-Whether burden of proof shifted to defence-Criminal Law and Procedure-Defective particulars of charge-Misleading particulars.

Criminal Law—Penal Code—Section 71 (a)—Being a niember of the Man Man
society—Section 71 (b)—Knowingly allowing a meeting of an unlawful
society to be held in a house—Evidence—Risk of convicting on evidence of
one eye-witness—Accomplice—Danger of conviction on uncorroborated
evidence of—Whether burden of proof shifted to defence—Criminal Law
and Procedure—Defective particulars of charge—Misleading particulars.

Criminal-Iaw Nairobi-Municipality (Building) By-Laws, 1948-By-law 351 (b) "Owner" in by-law considered--Original owner allowing new building to be occupied without permit--Owner selling occupied building-Whether new owners liable for breach ·of by law-Whether new owners liable for negligence and failing to inquire whether original had obtained a permit.

Criminal-Law--Nairobi-Municipality (Building) By-Laws, 1948—By-law 351 (b)-
"Owner" in by-law considered—Original owner allowing new building to be
occupied without permit—Owner selling occupied building—Whether new

owners liable for breach of by-law—Whether new owners liable for negli-
ence and failing to inquire whether original had obtained a permit.

Civil Procedure and Practice-Civil Procedure Ordinance (Cap. 5), sections 63 and 97-Civil Procedure (Revised) Rules, 1948-Order 16, rules 2 and 4-Order of Court on defendant to pay taxed interlocutory costs-Defendant's failure to comply-Application for order to strike out defence failing compliance within limited time-Whether competent.

Civil Procedure and Practice—Civil Procedure Ordinance (Cap. 5), sections63 and
97—Civil Procedure (Revised) Rules, 1948—Order 16, rules 2 and 4—Order
of Court on defendant to pay taxed interlocutory costs—Defendant's failure
to comply—Application for order to strike out defence failing compliance
within limited time—Whether competent.

Civil Procedure and Practice-Civil Procedure (Revised) Rules, 1948-Order 6, rule 4-Necessity of specifically pleading defence of lack of endorsement of, bill of exchange-Bills of Exchange Ordinance (Cap. 291), section 24 (1)Evidence-Endorsement in blank on bill stroked out-Burden of proof Presumption of regularity.

Landlord and Tenant-Increase of Rent (Restriction) Ordinance 1949-Section 31-Whether Supreme Court has concurrent jurisdiction with Coast Rent Control Board-Claim for arrears of rent-Whether damages by breach of contract, set-off or counter-claim competent-Alleged unreasonable withholding of landlord's consent to assignment of lease-Whether set-off or counterclaim for damages arising out of tort for loss of assignee competent.

Evidence-Stamp Ordinance, section 22-Foreign promissory note-Note unstamped- Whether presentation unnecessary-Whether inadmissible in evidence-International Private Law-Limitation-Limitation Ordinance (Cap. 11), section 37 (2)-Whether Indian Limitation Act, 1908, applied Whether contract extinguished or, merely, remedy time-barred-Limitation Ordinance, section 51 - Whether Indian promissory note time-barred after three, but within six, years of making.

Landlord and tenant-Increase of Rent (Restriction) Ordinance, 1949-Application by landlord for eviction-Section 16 (b)-Alleged acts of waste-Conviction for using premises for illegal purpose Application refused-Whether misdirection by Executive Officer..

Criminal Law-Penal Code section 62 (1)-Being present at and consenting to the administration of an illegal oath-Acquittal, but conviction for being a member of an illegal society contrary to section 71 (a)--Whether evidence relevant-Whether essential for accused person to be given particulars before conviction.

Criminal Law—Penal Code section 62 (1)—Being present at and consenting to
the administration of an illegal oath—Acquittal, but conviction for being a
member of an illegal society contrary to section 71 (a)—Whether evidence
relevant—Whether essential for accused person to be given particulars before
con