Q8-Civil Lit-2015

The High Court of Kenya sitting at Eldoret has passed a judgment against Kaloki Karokora Mayanja to pay Olia Biabene a sum of Kshs.150 million. Kaloki seeks your advice on the civil procedure law and practice on what is, or may be, open to him and how to go about it to:

(a)Overturn or alter that decision.

(b)Suspend the enforcement of that decision (here set out the applicable principles guiding the forum where he makes his effort).

Provide him with the requisite legal advice

Overturn or alter the decision.

Review

This is covered under Order 45 of the Civil Procedure Rules. When a person is aggrieved by a decision they may apply for review of the decision. They may apply for review to the same court that passed the judgment. Review may be made on the basis of new discovery of evidence and facts that upon exercise of due diligence was not before the court at the time of judgment or if there is an apparent error or omission on the record of the court or for any other sufficient reason. A review is available where an appeal has not been preferred. With regard to the facts; if Kaloki can find new evidence or discover new facts that are material to the case that were not within the province of the court at the time of judgement or if there is an apparent error on the record of the court as regards the judgement then the decision may be amenable to review.

Appeal

An appeal is a mechanism where one requests a higher/superior court to reverse the decision of a trial court after final judgment or other legal rulings. An appeal is only available to parties t the suit. This is a distinction from review where anyone prejudicially aggrieved by the decision of a court may apply for review. An appeal may not lie from a judgment that was delivered with consent of the parties.

An appeal from the High court lies with the court of Appeal. This is covered under the Appellate Jurisdiction Act. The appeal to the C.A must be made on a point of law and not fact. An appeal may be preferred upon the following grounds;

1.      The decision being contrary to law or to some usage having the force of law

2.      The decision having failed to determine some material issue of law or usage

3.      Having the force of law; a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits

(b)Suspend the enforcement of that decision (here set out the applicable principles guiding the forum where he makes his effort)

Setting aside judgement

Setting aside judgment- under Order 10 of the civil procedure rules where judgement has been entered in default of defense or appearance. The party losing may with a reason apply to the same court to set aside or vary such judgment.

Stay of execution

According to Order 22 of the Civil procedure rules states that when a decree holder is in the process of execution. The judgement debtor may apply to the court that is executing the decree for a stay of execution for a reasonable time as the judgement debtor may require for purposes of lodging an appeal.

If an appeal has been lodged the application for stay may be made to the appellate court. if an appeal has not been lodged but is intended the application is made to the court that passed the decree.

Q6-2015-Civil Litigation

Q6-2015-Civ-Lit

Developers Enabling Bank as chargee had, in exercise of its statutory power of sale, sold by public auction, charged property. The purchaser was Lady Khasoa. The conditions of sale included one requiring the highest bidder to pay immediately a deposit of twenty five per cent (25%) of the sale price, and he balance to be paid within 30 days from the date of the sale. Khasoa made a down payment of the 25% of the purchase price and was issued with a certificate of sale. She was left with a balance of Kshs.2,400,000 to be paid within 30 days from the date of the auction sale. Six days later, Khasoa wrote to Developers Enabling Bank asking it to supply her with title documents, discharge of charge, a duly executed transfer and rates and rents clearance certificates in respect of the parcel of land and improvements erected on it. She also stated in the letter that she required 60 days to enable her organize the necessary finance. Developers Enabling Bank responded by saying among other things, that it could not release the documents and was expecting to receive the balance of the purchase price within the stipulated 30 days. Subsequent discussions led to some mutual extension of the period for the payment of the balance. But it did not work. Developers Enabling Bank refunded to Khasoa the 25% deposit sums paid at the auction sale. While acknowledging the refund, Khasoa brought suit against the Bank for breach of contract. Developers Enabling Bank entered appearance and filed a defence to the suit, the basis of which was that the plaintiff Khasoa's counter-offer varying the conditions of the auction which was unacceptable to the defendant Bank. By a notice of motion filed in the Court, Khasoa applied for summary judgement against Developers Enabling Bank in the sum of Kshs.15,000,000 prayed for in the plaint as special damages for loss of bargain. She took the position that she was not in breach of the 30 days period within which it was required to pay the balance of the auction purchase price when the bank refunded to her the deposit of the purchase price, and the 30 days period had not expired. This being her take, Khasoa was of the view that the Bank was in breach of the contract of sale. The bank took the position that instead of paying the balance of the purchase price within the stipulated 30 days in the conditions of sale, Khasoa counter-offered and sought a 60 days period within which to pay the balance of the purchase price, and the counter-offer was unacceptable, and the Bank was not therefore in breach of the contract as alleged. On this ground, the Bank opposed the application for summary judgement and asked for leave to defend.

You are attached to Lady Justice Showy as her research assistant. She instructs you to carry out research for her and write out an opinion, applying relevant principles whether summary judgement is available on the above facts.

Set out your reasoned opinion, showing the applicable principles and applying them and advise the learned judge accordingly to assist her in writing her ruling on the application which she has heard before her.

Summary Judgement

Summary judgement is provided for under Order 36 of the Civil Procedure Rules.  Summary procedure is a legal term which means that a court makes a determination (a judgment) without a full trial. A court can decide on the merits of the whole case or on specific parts[1]. Summary judgement is applicable to two scenarios; where the plaintiff is seeking relief for a liquidated amount of damages or for the recovery of land. The basis of summary judgement is that the defendant does not have a defense to make.  It must be made after appearance has been entered but before defense has been filed.

Summary judgement is applicable to this scenario as the contract that was made was for land. It has since failed and as such it is a suit for the recovery of land. Further the claim is for a definite amount. The Plaintiff claims KSH 15,000,000/= from the defendant for the loss of bargain. Whether this amount has merit is for the court to decide. However it is calculable and therefore liquidated.

Ruling

Summary judgement is applicable to this procedure however is it the correct course to take given the facts?

Summary judgement is applicable where ones cause of action or defense is baseless. Where the defendant demonstrates that there is a triable issue then courts must grant leave to defend the suit and avoid the application for summary judgement.

The plaintiff claims that the defendant breached the contract by returning the 25% deposit before the 30 day limit. The defendant allege that the 60 day extension period that the plaintiff requested for was a waiver of the contract which was unacceptable and therefore feel that they were entitled to repudiate the contract.

The facts allege that there was an attempted mutual extension but it did not work. I find that this raises questions of law and fact. Which are whether the mutual extension was a waiver of the contract that entitled the defendant to repudiate?
As such the application for summary judgement is dismissed with costs to the Plaintiff. The defendant is hereby granted leave to defend suit.

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[1] S. Ouma, Commentary of the Civil Procedure Act (2^nd edn, Law Africa, 2010) 414 

Q5-2015-CIVIL LITIGATION

In a civil case filed and registered on the 8th January this year at Machakos Resident Magistrate's

Court by Chibri Nyasani against Karanja Ole Razanga, the record of the hearing in the court case file, in its essential portions, omitting details not necessary for the present purpose, included the following evidence:

"Chibri Nyasani (PW1): I have sued Karanja Ole Razanga. He is my fellow Kenyan and my landlord at a building in Westlands, Nairobi which I use as a hotel with accommodation facilities, under a lease agreement entered into on 15th April, 2014 to last until 15th April, 2019. The lease agreement contained among other covenants, one which stated as follows:

'The landlord agrees to execute all outside and inside repairs of the said building which may be found necessary for a hotel in the course of reasonable wear.'

Two months later, by letter of 30th June, 2014 I informed Razanga that the glass roof and water pipes were leaking badly. So was the roof in the kitchen. Razanga sent his representatives and certain works were done in the glass roof, the gutterings and the kitchen roof. But because the glass roof was not made properly watertight the dining room flooded during the rains. Guests had to be moved out of the bedrooms owing to the leaking roof. The floor of the kitchen also required repair. Two guest rooms leaked, and the walls were cracked in several places. I gave verbal notice of the need of these further repairs. I suffered loss to the extent of Kshs.200,000 through loss of customers owing to the bad state of repair the hotel was in and owing to vacating the premises. I have brought this suit to claim this amount."

In answer to questions put to him in the course of cross-examination, he answered:

"I do not know the extent of the damage to the glass roof. My workers might have left the water-taps running all night, causing flooding. The experts who inspected the roof are not here to give evidence as to its condition. No attendant at the hotel has come to testify as to the state of customers or the state of the hotel in the rains and loss of customers."

There was no re-examination of Nyasani, and his Advocate announced the close of his client's case.

When Karanja Ole Razanga took the witness-stand to testify, he admitted the landlord-tenancy relationship under the said lease agreement. But he said:

"I did all the repairs which Chibri notified me. The alleged loss of customers is denied; but if there was any such loss, it had nothing to do with the state of the building and might have been due to other causes not related to the state of the building. I ask the court to dismiss this suit with costs. I so pray. That is all. I have no witnesses to call."

On the basis of the record of the evidence given on both sides,te a judgement on the above claim, the advocates on both sides having exhaustively argued their respective cases by merely repeating and emphasizing what their clients had said in their evidence, and Razanga not having been cross-examined.

IN THE REPUBLIC OF KENYA

RESIDENT MAGISTRATES COURT

MACHAKOS

CHIBRI NYASANI…………………………PLAINTIFF

VS

KARANJA OLE RAZANGA…………………DEFENDANT

FACTS

The plaintiff leased a building which he has been using as a hotel. The lease duration was from  15th April, 2014 to last until 15th April, 2019. The tenancy agreement stated that the defendant who is the landlord would occasionally repair damages that arise out of normal wear and tear. Two months after the agreement the glass and kitchen roof as well as pipes were leaking. The defendant repaired but it is alleged that the repairs weren’t sufficient as a result the leakage continued and spread to guest rooms and so occasioned the plaintiff loses amounting to KSH 200,000/=.

Plaintiff’s case

The plaintiff alleges that the defendant did not repair the wear and tear issues in a proper manner and therefore the leakage of water continued and as such occasioned the plaintiff loss amounting to KSH 200,000/=.

Defendant’s case

The defendant states that he did all the repairs and denies that there was any loss of customers as the same cannot be verified. The loss if any might be attributed to other causes and not wear and tear.

Issues for determination

Whether there was damage as regards wear and tear to the building?

The plaintiffs evidence that the damage was caused by wear and tear cannot be relied upon. This is because during cross examination the plaintiff could not tell whether the damage to the building was caused as a result of wear and tear. Wear and tear is the normal occasional deterioration related damage that arises from an asset. It is not clear whether the damage to the building was caused by the workers leaving tap water running all night, there are no expert witnesses to prove to the court whether the damage was caused by wear and tear, it is not clear the extent the glass roof was damaged and thus repaired and lastly there is no evidence before this court to show that there was an overall loss of the plaintiff’s client thus occasioning loss of the KSH 200,000/=.

The defendant alleges that all the damages related to wear and tear were done and as such any other which was not related to wear and tear was not done and thus may have occasioned the so called loss if it happened. This court finds that there is no evidence before it to prove that there were wear and tear damages, that the wear and tear damages were repaired. The plaintiff has failed on a balance of probabilities to prove the liability of the defendant as such the suit stands dismissed with costs.

I thank counsel for their well furnished submission.

Delivered on 10^th February 2017

Justice ‘Learned Hand’

Before

Wakili Smart for the Plaintiff

Janjes Rezz for the Defendant
Omwami- Court clerk

Q3-CIVIL LITIGATION -2015

Tom Rashid sued Douglas Murunjiri in the High Court of Kenya, Kisii, in Civil Case No.300 of 2014, seeking to recover a sum of Kshs.10 million alleged to have been advanced to him at his request. He prayed for costs and interest. The defendant denied being indebted to the plaintiff. The case was heard and determined by Hon. Mr. Justice Speed who, in his judgement delivered on 6th October, 2015, after hearing evidence on both sides that same day, dismissed the suit.

Draft the appropriate decree.

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT KISII

CIVIL CASE NO.300 OF 2014

TOM RASHID………………………………………..PLAINTIFF

VS

DOUGLASS MURUNJRI……………………………DEFENDANT

DECREE

Claim for KSH 10,000,000/=

This suit coming on this day for final disposal before Justice Speed in the presence of Omwenga Olo for the Plaintiff and of Tariq Tar for the Defendant it is ordered that the suit is dismissed and that the Plaintiff bears the costs of this suit.

Given under my hand and the seal of the court, this 20^th day of October 2015

 ......................................., Judge.

Q1-2015-CIVIL LITIGATION

Rankerous Lolwe employed Hawezi Kamwe as an agent to collect rent from his tenants in respect of 15 palatial residential houses in Muthaiga, Nairobi. Each tenant occupied a house on a monthly rent of Kshs.500,000/-. According to the tenancy agreement a deposit of Kshs.3 million was to be paid before occupation. All the 15 houses were fully occupied.

For some reason not disclosed, Hawezi Kamwe has not collected any rent from the tenants for 10 months. She had also not collected any down payments.

Feeling that his agent had not exercised due care and diligence, resulting in loss to him, Lolwe instructs you to file a suit against Kamwe for negligence, and claim from her sums due for rent and deposits, because any claim against the tenants had become time barred.

Your firm practices on New Sensation Plaza, 30th floor, Nairobi along Kenyatta Avenue. Hawezi Kamwe runs a debt collection business at Babekopi Emporium, Ground Floor, on Dreary Street, Machakos.

Draft an appropriate plaint for the claim.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO……. OF 2017 (O.S)

RANKEROUS LOLWE………………………………….………….PLAINTIFF

VERSUS

HAMWEZI KAMWE………………………………………….DEFENDANT

ORIGINATING SUMMONS

(Under Order 37 Rule 3 of the Civil Procedure Rules)

LET ALL PARTIES CONCERNED attend the honourable judge in chambers on the      day of      2017 at 2:00 O’clock in the afternoon on the hearing of an application on the part of RANKEROUS LOLWE of post office box number 22339-0100 Nairobi for orders THAT

1. The Defendant to be declared in breach of his duty of due diligence by not collecting the rent and down-payments from the tenants
2. The Defendant pay Damages for negligence
3. The Defendant pay to the Plaintiff compensation amounting to 48,000,000 Kenya Shillings for sums due to her as rent
4. Cost of this application.

THIS SUMMONS is supported by the affidavit of RANKEROUS LOLWE (annexed)

This summons was taken out by M/s Sheilla Sheikh & Associates Advocates for the above named RANKEROUS LOLWE

Dated at Nairobi this                                    day of                               2017

Sheilla Sheikh  & Associates

Advocates for the Plaintiff

Drawn & Filed By

Shella Sheikh & Associates Advocates

New Sensation Plaza, 30th floor,

Kenyatta Avenue

P.O. Box 4XX23 – 00100

Nairobi

To Be Served Upon

HAMWEZI KAMWE

Babekopi Emporium Ground Floor,

Dreary Street,

PO BOX 6666-3300

Machakos

(If the Respondent does not enter an appearance within the time above mentioned such order may be made and proceedings taken as the court may think just and expedient.)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO……. OF 2017 (O.S)

RANKEROUS LOLWE………………………………….………….PLAINTIFF

VERSUS

HAMWEZI KAMWE………………………………………….DEFENDANT

SUPPORTING AFFIDAVIT

I, RANKEROUS LOLWE, of P.O. Box 24990-00502, Nairobi, residing on Farm lane, off Dagoretti road, Karen, within the Republic of Kenya do hereby make oath and state as follows:

1.      THAT I am the plaintiff herein with the knowledge of the facts in issue hence I am competent to swear this affidavit.

2.      THAT I employed the Defendant as my agent to be collecting rent and down-payments from my 15 houses in Muthaiga.

3.      Each down-payment cost KSH 3,000,000/= whereas rent per month was KSH 300,000/=

4.      THAT the Defendant has in breach of his duty not collected rent for the last 10 months

5.      That the breach of the defendants express duty was not explained on time and this has occasioned the Plaintiff Losses amounting to KSH 48,000,000/=

Sworn at Nairobi by the said             }

RANKEROUS LOLWE                     }  ………………………………….

This           day of                2017        }     Deponent

                                                            }

                                                            }

Before Me                                           }

                                                            }

                                                            }

Commissioner for Oaths                    }

Drawn & Filed By

Shella Sheikh & Associates Advocates

New Sensation Plaza, 30th floor,

Kenyatta Avenue

P.O. Box 4XX23 – 00100

Nairobi.

Q6-2009-Commercial Transactions

(a) Prepare the Document

A SALE AGREEMENT

1.      Mr Kenya of ID no 333333, residing in Nairobi Area male of sound mind herein referred to as the buyer, contracts with Mr Patel of ID no 99999, residing in Nairobi area, male sound mind herein referred to as the seller.

2.      The buyer contracts to buy the model vehicle V 2007 from the seller as a consideration of 15,000,000 (fifteen million Kenya shillings only)

3.      The seller hereby warrants to the buyer that the vehicle v 20077 model is fast, durable, new, modern and has a low fuel consumption rate.

4.      The buyer relies on the sellers skill and judgement as to the quality and fitness for purpose of the 2007 model vehicle V

5.      Delivery of the vehicle model V 2007 shall be done on 30^th June 2008 at Nairobi Medical Plaza which is the buyers office

6.      The requirements as to the delivery date, fast nature, durability, low fuel consumption rate and modern and new qualities of the vehicle are conditions.

7.      If a condition is breached the buyer is free to treat the contract as repudiated

8.      If a dispute should arise it should first be directed to arbitration as per the Arbitration Act

9.      This contract is governed by the Sale of Goods Act

10.  Time is of the essence

11.  Execution clause………………………………………

(b) Legal Opinions

- The failure to deliver the car on the stated date constitutes a breach of a condition or the buyer treat it as a breach of warranty and sue for damages. The Sale of Goods Act provides that when the time for delivery is not set the seller is bound to deliver them in reasonable time[1]. The delivery costs are borne by the seller[2]

-Whether 2 weeks constitutes as reasonable depends on the reason given.  In a contract for sale of goods it is possible to plead force majeur (an unavoidable accident) as such the buyer in this instance may treat it as a breach of condition and repudiate the contract or treat it as a breach of warranty and claim damages

-Mr Kenya may sue for breach of warranty as he has treated the condition as a warranty. He may claim damages

-It is clear from the facts that the buyer during purchase laid emphasis on the seller’s skill and judgment as to the specifications of a car that he wanted as such when a buyer lays reliance on a seller’s skill and judgement then the final delivered product must meet this criteria. As such the vehicle did not meet the requisite specifications as specified by the buyer. It was not fast, durable, low consumption and unstable on the road.  The buyer may treat this as a breach of condition and repudiate the contract.

-Mr Patel may claim that goods once sold can-not be refunded, that is company policy that may be interpreted into the contract. However, in law Mr Patel is liable, he entered into a contract and did not deliver what was required of him. The contract stated that he was to deliver a fast, durable, stable and low consumption vehicle he did not do so as such; he must refund the money and take the car or upgrade the car to standard based on whether the seller treats the breach as a breach of warranty or condition.

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[1] Section 30(2) Sale of Goods Act

[2] Section 30(5) Sale of Goods Act

Q2- 2008- COMMERCIAL TRANSACTIONS

SALE AGREEMENT

This agreement is made on 1^st June 2011. It is made between Fridah Oliech (seller) of ID number 999999 P.O BOX 224 00100 Nairobi and Joy Ndunda (buyer) of ID number 888888 P.O BOX 344 00100 Nairobi.

Whereas the parties agree;

1.      That the seller shall deliver 2 horse carriages made of specific and unique rare materials to the buyer on 1^st October 2011

2.      That the buyer shall pay 5 million for each of the carriages delivered

3.      The delivery of the carriages shall be at the buyers business premise

4.      The terms as to delivery date and nature of carriages are conditions

5.      If a condition is breached the parties are free to treat the contract as repudiated

6.      If a dispute should arise it should first be directed to arbitration as per the Arbitration Act

7.      This contract is governed by the Sale of Goods Act

8.      Time is of the essence

9.      Execution clause………………………………………

Q1-2011- Commercial Transactions

Do the trees still attached to the ground constitute goods?

Sec 2 of the SOG Act states that goods includes all chattels personal other than things in action and money, and all emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under a contract of sale. The trees in the land therefore constitute goods.

What type of goods are they?

The facts state that ‘all the trees which conformed to a certain stated minimum specification would be sold over a 15 year period

Specific goods are goods that are identified and agreed upon in the contract. In this scenario the type of goods to be acquired was agreed upon but there was no physical identification of the trees to be cut in a forest among many other trees of different specification. It is submitted that the goods were unascertained.

The test for ascertaining goods was put forth by Mr. Ojiambo who stated that to ascertain goods one must identify them, set aside and agree upon.

The trees were to be cut over a 15 year period in a forest where there were other trees with other specifications

Sec 18 of the SOG Act states that where there is a contract for the sale of unascertained goods, no property in the goods is transferred until the goods are ascertained. Risk prima facie passes with property[1].

Prof Aatiyah outlines the different types of unascertained goods as;

1.      Goods to be manufactured or grown by the seller

2.      Purely generic goods

3.      An unidentified portion of a specified bulk or whole

It is submitted that the timber goods falls in the 3^rd category.

What is the effect of the fact that the defendant had started harvesting the trees?

He had appropriated into the contract that which he had harvested however that which he had not harvested had not been appropriated into the contract. Property in the harvested goods had passed due to appropriation.

In re London Wine Co (Shippers) Ltd 1986 PCC 121[2] a company sold wine to customers while retaining possession of the wine. The customers paid for wine as well as for subsequent storage charges. The sellers gave them certificates of title but there was no actual earmarking or physical segregation of the wines sold to the different customers. The wine company became insolvent and the buyers sought to claim ownership and it was upheld that the wine still belonged to the company.

Re Blyth Ship Building Company 1926 Ch[3] A agreed to build a ship for B. B was to pay for it in installments as the work proceeded. The K[4]provided that on payment of the first instalment everything including the vessel and materials appropriated shall belong to B. B became insolvent before the ship was complete. The CA[5]held that property in the incomplete ship had passed but not for the worked and unworked materials that were lying around but not incorporated into the ship.

Similarly the unharvested, un-segregated timber was still the property of the company when the nationalization took place. Since the buyer had already harvested some timber it should be quantified as against the first instalment.

Further, it should be held that this nationalization frustrated the contract. In the case of Kursell vs Timber Operators and Contractors[6] in this case the buyer had bought trees of a certain dimension from a Latvian forest. Shortly after the purchase, the government nationalized the forest. The court held that the property had not passed to the buyer as the goods had not been ascertained as per section 18.

Case B

Company invested in gold coins. Company kept the gold in mass and never separated it into portions. Company gave certificates of ownership to the investors. Company became insolvent. Investors want to lay a claim in context of insolvency not covered but essential) and need to establish if the hold any proprietary rights.

Sec 18 of the SOG Act states that property never passes in unascertained goods. Sec 19 leads us further to find that property in specific and unspecific goods passes when intended to pass. Sec 20 halts us to the reality that property in specific and ascertained goods passes when the K is made.

 The gold bars were still in mass and this shows that they were unascertained. the bars were not physically segregated, identified, agreed upon and set aside as such the investors have no proprietary claims as property never passed to them in law. Refer to the case of In re London Wine Co (Shippers) Ltd 1986 PCC 121 (above).

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[1] Sec 18 Sale of Goods Act

[2] Aatiyah Sale of Goods, 12^th edn, Pg 334

[3] Aatiyah Sale of Goods, 12th edn, pg 494

[4] Contract

[5] Court of Appeal

[6] 1927 1 KB 298