High Court of Kenya at Nairobi
Civil Case No. 423 of 1999
ASG Scan Cargo vs Nairobi Conveyors Limited |
The issue in dispute was the attachment of assets subject of a debenture. The applicant, not a party to the suit objected to the attachment of properties of the Defendant Nairobi Conveyors Limited who had charged all its properties in favour of the objector. A debenture was exhibited in support of the application
HELD (Mulwa J.) The registration of the debenture under Section 196 of the Company's Act (Chapter 486 Laws of Kenya) with the Registrar of Companies precluded the application of Order XXI Rule 27 and 58 of the Civil Procedure Rules (Chapter 21 Laws of Kenya)
To quote the Learned Judge
".. the plaintiff says it was not aware of the debenture when it effected attachment. This contention could be valid if the debenture was not registered under Section196 of the Company's Act.
This provision cannot be subservient to procedural requirements in the civil procedure rules relied upon by the plaintiff. I therefore find that the objectors rights are established by the existence of the Debenture."
The judge proceeded to lift the attachment.
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Civil Appeal No. 285 OF 1997 (Nairobi)
Elizabeth Braganza vs Tysons Habenga Limited |
| Held by the Court of Appeal (Akiwumi, Tunoi & Shah JJ.A.), in allowing the appeal that delay in delivery of judgement is to be shied from. The Learned Justice of Appeal Mr Justice A.B Shah concurred with the judgement of the House of Lords in Goose vs Wilson Sanford and Company {- Per Lord Justice Gibson} reported in The Times Law Report on 14th February 1998:
" Litigation causes quite enough stress as it is, for people
to have to endure while a trial is going on. Compelling
them to wait for an indefinitely extended period after the
trial is over will only serve to prolong their anxiety, and
may well increase it."
Also deprecated was the practice by advocates to file "written submissions" as was done in the superior case which was an appeal from the subordinate court. The correct procedure was to hear viva voce evidence on the appeal.
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Civil Appeal No 112 OF 1995 (Nairobi)
Gerald Mbale Mwea vs Kariko Kihara & Gichomo Kihara |
| Held by the Court of Appeal (Akiwumi, Tunoi & Shah JJ.A.), in allowing the Appeal substantially, that failure to obtain letters of administration ad colligenda bona or final is fatal to a claim made under the Law Reform Act. The Learned judges of appeal reaffirmed the courts finding in the celebrated case of Trouistik Union International & Anor vs Mrs Jane Mbeyu & Another Civil Appeal 145 of 1990 (where a seven judge bench of the Court of Appeal overturned a judgement of the Court of Appeal in the Hintz case which had held that absence of such letters were not a bar to recovery under the Law Reform Act.)
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Criminal Application No. NAI 4 & 5 OF 1994 (Consolidated)
David Makali & 3 Others & Republic |
Held by the Court of Appeal (Cockar, Omolo & Tunoi JJ.A.), in allowing the application that the request to Justices Cockar and Omolo to disqualify themselves was unfounded as the article the subject of the contempt proceedings was directed at the Court of Appeal and the judiciary in general. Further, the court found that it had jurisdiction to entertain contempt proceedings for acts of contempt before it notwithstanding the fact that there is no statutory provision for the same. The Learned Judges of Appeal cited the House of Lords decision in Re Lonrho Plc & Others (1989) 2 All ER at 1100. Submissions were made for one of the accused that the proceedings were such that the court had thrown the onus probandi on the accused.
In any event Accused were convicted and fined the 1st Accused, a journalist, opted to serve the sentence of 6 months imposed, on principle.
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