East African Court of Appeal - 1958

Forest! Licence to occupy forest reserve. Licensee cultivating a portion of the forest without a licence. Licensee charged with clearing and breaking up land in the forest reserve. No evidence of clearing and breaking on the date alleged. Meaning of "to clear and break up land for cultivation" under the Forests Ordinance (Cap. 133), s. 14 (2) (b) (U.).

Criminal law-Charge-Accused charged with being in a building by night with
intent to commit a felony-Accused actually found in enclosed compound Whether compound is a building-Pena/ Code, s._ 285 (/) (U.).

pleading – counterclaim – action for declaration that bill of sale void and for damages for seizure of goods – counterclaim that if bill of sale void plaintiffs indebted in liquidated amount for goods sold and delivered – whether liquidated claim can be set-off or counterclaimed against unliquidated amount – civil procedure rules, o. 8, r. 14 (u.) – english rules of the supreme court, o. 21, r. 7

Sale of goods. Requirement regarding the acceptance of goods in accordance with the contract. Vendor claims damages for the balance of the price. Subject to the condition that the vendor notifies the purchaser of the acceptance after the fact of the goods. Relevant legislation: The Sale of Goods Ordinance (Cap. 21), s. 9 (2), s. 13 (1) (U.).

Criminal law – Evidence – Identification parade – Whether reasons for identification should be elicited by questioning.
Criminal law – Evidence – Circumstantial evidence – Tests to be applied before inferring guilt.

Street traffic – Driving without due care and attention – Conviction based on principle or rule of general application – Whether conviction must be based on finding of driver's actual negligence – Traffic Ordinance (Cap. 168), s. 40 (1)(a) (T.).

criminal law trial, an application for statutory legal aid was made six days before the trial. Counsel was assigned to the accused but was unable to consult with them, leading to a withdrawal application. Consequently, the accused was unrepresented at trial. The central issue is whether the accused was unfairly deprived of the benefit of legal aid under the Legal Aid (Criminal Proceedings) Ordinance, 1957, s. 2 (S.).

Building contract—Contract for building seventeen blocks of housing. Refusal by City Council to accept six blocks after accepting eleven. Buildings alleged to be below the standard required by specification. No final certificate issued. Buildings already let by Council and occupied. Action by contractor for balance of price and extras—Whether claim premature or barred by limitation.

Building contract—Contract for building seventeen blocks of housing. Refusal by City Council to accept six blocks after accepting eleven. Buildings alleged to be below standard required by specification. No final certificate issued. Buildings already let by Council and occupied. Action by Council claiming damages for breach of contract and other relief—Whether Council waived wholly or partially or is estopped from alleging breach by contractor. Relevant legislation: Indian Contract Act, 1872, s. 237.

Costs – Joint defendants – Joinder of third party against its will by second defendant – Costs incurred in third party proceedings – No liability established against third party – Whether second defendant should pay the costs incurred by third party – Civil Procedure (Revised) Rules, 1948, O. I, r. 19 (K.)

Jurisdiction-Appeal against sentence -No right of appeal-Criminal Procedure
• Code, s. 301 (d) (S.)-Criminal Procedure Code (Amendment) (No. 2)
Ordinance, 1951, s. 4 (S.).

Evidence-Unstamped agreement admitted in evidence-Effect of such admissionStamp
Ordinance (Cap. 259), s. 19, s. 39 and Schedule, item 1 and item 12 (K.)
-Eastern African Court of Appeal Rules, 1954, r. 76 and r. 77-Jndian
Evidence Act, 1872, s. 1 67-English Stamp Act, 1891, s. 14 (I)-Indian
Stamp Act, 1899, s. 36-English Rules of the Supreme Court, 0. 58, r. 10 (2).

 Criminal law—Case stated—Application to make absolute a rule nisi to show cause why a case should not be stated—Magistrate's refusal to state case—Child alleged to have been kidnapped from Tanganyika by own mother—Mother later granted custody of child in Kenya—Whether rule should be made absolute—Fugitive Offenders Act, 1881, s. 19—Criminal Procedure Code, s. 367 and s. 370 (K.).

Bill of Sale
Fraud on Creditors - Attachment of Lorry
Security for bill of sale including lorry. Bill of sale dated subsequent to commencement of action. Validity of bill of sale under the English Fraudulent Conveyances Act, 1571, and the English Bills of Sale Acts, 1878 and 1882. Relevant provisions from the Civil Procedure Rules, O. 19, r. 55, r. 60 (U.).

jurisdiction – divorce – petition for restitution of conjugal rights – parties married in india – wife under sixteen when married – whether court has jurisdiction to entertain petition regarding marriage outside kenya – whether marriage valid – marriage, divorce and succession ordinance (cap. 149), s. 3(1), s. 4 and s. 5 (k.)

Vendor and purchaser contract. Portion of premises sold becoming vacant before completion. Premises relet by vendor without consulting purchaser. Duty of vendor to purchaser between contract and completion under the Indian Transfer of Property Act, 1882, s. 55 (1) (e) and the Indian Trusts Act, 1882, s. 15.

Criminal law-Trial with assessors-Failure of trial judge to sum up or to sum
up at any length to assessors-Criminal Procedure Code, s. 283 (1) (T.).

Income tax – Assessment – Notice requiring return of income within specified time – Request from taxpayer for further time for returns refused – Assessments made before minimum time allowed for returns expired – Whether assessments ultra vires and void – East African Income Tax (Management) Act, 1952, s. 40, s. 59 (1) and (3), s. 71 and s. 72

Criminal law-Provocation-Grounds for reducing a charge of murder t.
manslaughter-Legal provocation not negatived-Penal Code, s. 202 (3) ( T.)

Trade union — Registered trade union — Accounts — Submission to registrar of annual accounts — Failure to submit accounts — Notice of cancellation of registration — Whether notice effective if accounts submitted before notice expired — Trade Union Decree, 1941, s. 21 and s. 23 (Z.).

Trade union — Breach of statute by officers — Whether breach by officers is breach by union — Trade Union Decree, 1941, s. 17 (Z.)

Practice—Crown. Action against Minister claiming a declaration. Questions of constitutional law and practice raised by pleading. Application by defendant to reject plaint before defence filed because action alleged to be misconceived or incompetent. Relevant legislation: Suits by or against the Government Ordinance (Cap. 7), s. 3 and s. 4 (U.); Civil Procedure Rules, O. 7, r. 11 (a) and (d) (U.).

Income tax – Company – Avoidance or reduction of tax – Shares of company with loss for tax purposes acquired by parent company – Profitable asset transferred by parent company to subsidiary company – Direction by Commissioner that loss should be disregarded in computing tax payable by subsidiary company – Onus of proof – Test for determining purpose of transactions – Whether direction appropriate – The East African Income Tax (Management) Act, 1952, s. 14(1)(j), s. 23, s. 77 and s. 78

Negligence – Medical practitioner and hospital – Pack left in patient at operation – Life of patient saved by operation – Whether surgeon or hospital negligent.

Evidence – Agreement for sale of Crown land – Whether admissible in evidence if unregistered – Crown Lands Ordinance (Cap. 155), s. 88 (1) and (3), s. 126, s. 127, s. 129, s. 137 (1) and s. 138 (K.) – Indian Transfer of Property Act, 1882, s. 54, s. 55 (6) and s. 111 – Indian Registration Act, 1908, s. 17 (1) and (2) and s. 49.

Fraud – Transfer of land – Conspiracy to defeat claim of creditor – Whether transaction void or voidable – Transfer of Property Decree, s. 6 and s. 53 (Z.) – Contract Decree, s. 23 (Z.).

Copyright—Infringement—Plans of consulting engineers for factory copied by unqualified architects—Liability in damages of persons employing unqualified architects—Whether unqualified architects innocently infringing copyright in plans exempted from liability in damages—How damages assessed—Copyright Act, 1911—Copyright Ordinance (Cap. 220), s. 1 and s. 35 (U.).

Compulsory purchase—Compensation. Land acquired by Government for Nairobi City Council. Business premises on land subject to the Rent Restriction Ordinance. Claim by "protected" tenants for compensation. Relevant legislation: Indian Land Acquisition Act, 1894, s. 6, s. 18, s. 23, and s. 24; Increase of Rent (Restriction) Ordinance, 1949 (K.); Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954 (K.); Landlord and Tenants (Shops) Ordinance, 1956 (K.).

rent restriction – death of tenant – sons of tenant residing with her at her death – agreement between sons as to who should be tenant – one son held out as tenant – whether rent restriction board must declare that son to be tenant – rent restriction decree, 1955, s. 2(1)(z)

Practice-Pleading—Plaint alleging that vehicle was negligently driven by servant- No allegation that servant driving during course of employment-Whether plaint discloses a cause of action—Indian Code of Civil Procedure, 1908, o. 7, r. 11 (d). 
 

Practice - Trial - Advocate representing plaintiff present without his client - Whether plaintiff "appears" if his advocate appears - Civil Procedure (Revised) Rules, 1948, O. IX, r. 11, r. 17 and r. 19 (K.)

Criminal law-Murder-Sentence-No record that statutory words of sentence
were pronounced-Whether sentence invalid-Criminal Procedure Code,
s. 273 (Som.).
Criminal law-Murder-Provocation-Failure to put the question of provocation to
assessors-Whether omission fatal to conviction.
Criminal law-Trial-Assessors-Whether assessors may consult together before
giving opinions-Criminal Procedure Code, s. 236 (Som.).

Criminal law – Evidence – Extra-judicial statements made to district commissioner who was also officer-in-charge of police – Admission of statements by trial judge before court has heard whole evidence as to admissibility – Whether accused prejudiced – Indian Evidence Act, 1872, s. 25.
Criminal law – Evidence – Common intent – When court justified in inferring criminal purpose from evidence that native accused carried sticks or spears – Penal Code, s. 23, s. 200 (c) (T.).
Criminal law – Trial – Assessors – Opinion of assessors not taken on general issue as to guilt or innocence of accused – Criminal Procedure Code, s. 270 (T.).

street traffic – motor vehicle – permitting use of vehicle on road without valid driving permit – what constitutes "permitting" – traffic ordinance, 1951, s. 27(2), s. 50 and s. 50(6)(u)

Native law and custom—Mailo land. Appellant cultivating land outside his kibanja. Kibanja subsequently cut off. Whether appellant has any claim. Relevant legislation: Busulu and Envujo Law, s. 2, s. 4, s. 5, s. 6, s. 15 (U.).

Criminal law-Forgery-Charge laid under wrong section-Whether conviction
should be quashed by the appellate court-Penal Code, s. 326 and s. 327 (U.)Criminal Procedure Code, s. 331 (2) (ii) (U.).

Licensing – Certiorari – Licensing court refusing renewal of liquor licence – Applicant not informed that court would object to renewal or grounds of objection – Whether court entitled to refuse application for renewal without hearing applicant regarding grounds of objection – Liquor Licensing Ordinance, 1957, s. 11, s. 12, s. 16 and s. 18 (K.).

Compulsory purchase-Compensation-Assessment-Small plots of land some
distance from made-up road- Whether distance and size of plots are material
factors in assessing value of land-Indian Land Acquisition Act, 1894, s. 1 8.

Jurisdiction – Company – Action in Principal Court of Buganda against limited company – Whether Principal Court has jurisdiction – Interpretation and General Clauses Ordinance (Cap. 1), s. 3(1) and (8) (U.) – Buganda Courts Ordinance (Cap. 77), s. 2 and s. 3(1) (U.).

Arbitration - Award - Remission - Application to remit award before notice of filing given to parties - Whether application competent - Arbitration Ordinance, s. 9 (2) (K.) - Rules of the Supreme Court (Proceedings in Arbitration), r. 1 (K.).

customs – importation of prohibited goods – whether customs laws relative to the importation of prohibited goods being penal and taxing should be interpreted strictly or liberally – the east african customs management act, 1952, s. 15(1) and the second schedule thereto

Evidence—Document. Unstamped document tendered as evidence. No ruling by magistrate whether document liable to duty until judgment. Party tendering document thereby denied opportunity to pay duty and penalty and make document admissible. Whether party tendering document prejudiced. Relevant legislation: Stamp Ordinance (Cap. 189), s. 41.

Rent restriction—Possession. Premises required by landlord for his own occupation. Business premises subject to rent restrictions. Estoppel concerning the benefits derived from property under wakf. Relevant legislation: Rent Restriction Decree, 1953, s. 19 (1) (e) (Z.).

Burden of proof - Action for account - Defence that vouchers destroyed by plaintiffs' agent - Change of onus during proceedings - What plaintiff and defendant must each prove

Arbitration - Award - Remission - Error of law on face of award - Remission to arbitrator for reconsideration - Further award filed containing same error - Whether court should remit again and consider affidavit referred to in award - Civil Procedure (Revised) Rules, 1948, O. XLV, r. 14 (K.).

Execution – Order for attachment of salary of judgment-debtor – Non-compliance by employer – Application to bring employer on the record as a party and for issue of notice to employer to show cause – Whether plaintiff entitled to relief claimed – Civil Procedure Rules, Order 19, rule 45 (Uganda) – Indian Civil Procedure Rules, Order 21, rule 48.

Criminal law – Trial – Murder – Two indictments – First indictment read in the presence of persons summoned as assessors, Crown then elects to proceed on second indictment, second indictment alleging another murder then read – Whether knowledge of persons summoned as assessors that accused charged with two murders likely to prejudice accused.

Appeal from H.M. High Court for Uganda—Sirendan, J.J. Appeal—Fresh evidence—Application to admit—Principles which appellate court will apply. Contract—Contract made by correspondence—Date for completion not fixed and bargain to be incorporated in formal document—Whether enforceable contract between parties—Indian Contract Act, 1872, s. 46 and s. 55.

Mohamedan law – Wakf – Life interests created by wakf deed offending rule
against perpetuities – Whether wakf saved by Wakf Commissioners Ordinance,
1951, s. 4 (1) (a) (K.) – Indian Wakf Validating Act, 1913.

Practice – Application for review of judgment – Judgment for plaintiff following hearing ex parte after defence struck out for default in giving particulars and discovery – Whether plaintiff entitled to go to trial ex parte – Kenya Civil Procedure (Revised) Rules, 1948, O. VI, r. 2, and O. XIX, r. 1 and r. 2 – English Rules of the Supreme Court, O. XV and O. XIX, r. 6 (1).

probate – will – application for probate – caveat lodged before order granted – probate signed by judge – probate and administration act – validity of caveat – when is probate granted – indian probate and administration act, 1881, s. 70 and s. 76 (kenya)

Street traffic private hire licence conviction of taxi driver for carrying excess passengers. Magistrate's discretion to cancel private hire licence for the vehicle. Order of cancellation made without hearing the owner of the vehicle. Whether the magistrate should hear the owner of the vehicle before ordering cancellation of the licence under the Traffic Ordinance, 1951, s. 83, s. 84 (U.).