All courts - 1937

Mohammedan  — Law  — Legitimacy  — Lawful  Marriage — Alleged acknowledgment of appellant as son — Conduct of alleged father towards appellant — Appeals from decisions of Supreme Court of Kenya in its appellate capacity limited to questions  — of law — Appeal from a Kathi’s Court to Supreme Court of Kenya — Whether provisions of Indian Evidence Act or Mohammedan rules of evidence apply in Mohammedan Courts on question of marriages — Kenya Colony Order-in-Council, 1931, Article 7— Native law repugnant to justice and morality Whether law of Islam can be described as “native law”— Whether requirements. of Islamic law of evidence can be described as “technicalities of procedure”.

Practice—Parties—Mortgage suit—Mortgage to His Majesty the King
—Right of Attorney General to sue.,.

Evidence —The only evidence was that of a person accepted for the purpose of the judgment as an accomplice and the unsworn testimony of a small boy — Whether a witness who himself requires corroboration can corroborate — Murder— Penal Code (Kenya) section 187 — Whether conviction on such evidence could be sustained.

Damages for personal injury to a native and for incapacity and personal suffering — Adequacy of compensation — Loss of leg — Basis of assessing compensation — Schedule prepared by Native Affairs. Department of compensation based on so many years’ salary — Whether trial Judge warranted in forming his own opinion from opinion of an officer of the Native Affairs Department based on the schedule, where that officers not giving evidence as an expert — Whether, apart from the curious way in which result was arrived at, the damages were unreasonably small — Right of Appeal Court to over rule verdict of jury as to damages — Whether costs should be on Lower Court or Supreme Court scale.

Circumstantial evidence — alternative which may, with reasonable probability, account for death.

Expert Evidence.
 

Failure to file defence within prescribed time or at all — Refusal of trial judge to enlarge time for filing defence — Uganda Civil Procedure Rules: Order XLV, Rule 5  — Evidence in proof of plaintiff’s claim heard forthwith — Refusal by trial judge to allow defendant or his counsel, though present, to cross-examine or offer evidence in rebuttal of plaintiff’s claim.

Limitation—Action on promissory note—Limitation Ordinance 1934-
Period of Jimitation prescribed by the Ordinance shorter than that prescribed by the Indian Limitation Act, 1877. Indian Limitation Act, 1877, sec. 13 and Sch. II, Art. 73—Limitation Ordinance 1934, sees. 5 (1), 33, 38, 39.

Uganda Civil Procedure Rules — Order XIX, Rule 19.

Criminal Procedure—Revision--Order of Subordinate Court altered onrevision by single Judge—Application to Supreme Court to review order made on Revision—Crim. Pro. Code, sections 347, 352.

Master and servant — Constructive contract of service — Service
agreement.

Domicil — DomiciI of origin — Abandonment — Acquisition of fresh domicil — Evidence — Onus of proof.

Company—Winding-up--Company incorporated in England—Order
for winding-up by High Court in England—Assets and Liabilities
both in England and in Kenya.

Murder — Section 187, Penal Code of Kenya — After Crown case closed whether accused should have been called upon to enter on their defence — Section 289 (4) Criminal Procedure Code — For trial Court to consider whether there is evidence on which accused should be called upon to enter on their defence — Duty of Court of Appeal in circumstances where trial Judge considered that there was evidence.

Limitation—Execution of decree—Step in execution— Taxation of
costs—Indian Limitation Act, 1877, Sch. II, Art. 179.

Evidence — Whether an agent of justice or a police informer, or agent provocateur is an accomplice so as to require corroboration of his evidence — Dangerous Drugs Ordinance (Kenya) 1932 — Motive of witness in instigating appellants to commit an offence was to secure the capture of offenders — Police spy versus accomplice — Likelihood of story told by the witness as against probability of story told by the accused — Power of Judge to differ from the opinions of assessors —  Section 304 Criminal Procedure Code (Kenya) — Severity of sentence —Application for bail pending appeal — Whether any exceptional circumstances or exceptional reasons present.

Sale of Goods Ordinance, 1930, sections 2 (1), 8, 16 (2), 18, 20, Rule III and 35 — Specific goods or unascertained goods — Individuality of goods known — Rights of parties defined as to the thing which constituted the subject matter of the contract — Consideration of case where specific goods are sold by description and do not correspond with that description — Consideration of what it was that plaintiffs contracted to sell and whether the goods delivered correspond with contract — Maize meal — Implied condition that meal should be of merchantable quality — Evidence — Action for price of goods sold and delivered and not for damages for refusal to accept.

Penal Code (Kenya) sections 185, 186, 187 and 189 (c) — Murder
and manslaughter — Intent to commit a felony — Malice aforethought.

Kenya Companies Ordinance, Cap. 93, Revised Laws — Assessment by Court of damages against delinquent directors or other officers of company — Valuation of assets of company Balance-sheet of company no criterion of value of assets Onus of proof of misfeasance.

Provocation — Penal Code of Kenya, section 192 — Whether charge of murder should be reduced to manslaughter — Statement of law as regards provocation — No evidence that accused provoked deceased to assault, him with intention of taking advantage of that assault to kill or wound deceased.

Constructive partnership based on conduct of parties — Indian Contract Act, section 239 — Definition of partnership.

Execution — Application for — Whether time barred by law of limitation — Decree by consent for payment of instalments — Default in prompt payment of one instalment — Subsequent acceptance by decree holder of an instalment — Whether such acceptance acted as waiver of previous default — Effect of decree bearing date other than the date of the judgment — Decree specific and unqualified and not a decree for instalment — Civil Procedure Rules of Kenya, Order XVIII,rules 6 and 7 — Indian Limitation Act, 1877, Second Schedule
Article 179.

Information for murder and information for conspiracy to murder the same person tried together.

Kenya Bankruptcy Ordinance, 1930, section 3 (g) — Acts of bankruptcy — Judgment creditor placing difficulties in debtor’s way of satisfying debt — Equitable interpretation of Ordinanee.

Kenya Civil Procedure Rules — Order XIX, Rule 37— Power of Court to commit for failure to pay decretal amount or instalments — Kenya Bankruptcy Ordinance, 1930, section 99 — Power of Court to make receiving order in lieu of committal order.

Plea of accused — Construction — Use of depositions by Court in assessing sentence.

Debt due to firm — Parties — Sole proprietor can sue in his own name — Indian Contract Act, s. 29 — Agreement to postpone payment void for uncertainty —Practice, pleading, counter claim.

Divorce Jurisdiction — Practice — Joinder of claim for arrears of alimony and costs of former proceedings with prayer for judicial separation — Judicial Separation — Decree of Foreign Court — Res judicala — Power of Attorney — Proceedings instituted by Attorney — Power of Attorney unstamped — "Instrument acted upon" — Duty of public officer — Divorce Ordinance (Cap. 170) — Stamp Ordinance (Cap. 57) sections 37, 44 (2).

Conviction by Magistrate largely on evidence improperly called
by himself after close of case for prosecution—Calling of
evidence by the Court, at such stage-—Insufficiency of other
. evidence—Order by Supreme Court of Kenya in its appellate
jurisdiction' directing a new trial before another Magistrate
—Whether new trial should have been ordered—Criminal

Procedure Code, section 346—Employment of Natives Ordin-
ance (Laws of Kenya, Cap. 139), section 55—Withholding

native wages.

Charge of murdering six persons by one act of arson—Charge
laid in a single count of the information—Criminal Procedure
Code, sections 132 and 243—Whether information bad and,
consequently, whether conviction could be upheld—Whether
one act of arson causing death of six persons constitutes six
’ distinct offences—Penal Code, section 187.

Execution—Limitation—Indian Limitation Act, 1877, Sch. II Art.
179—Civil Procedure Ordinance, 1924, Sec. 35 (1).

Negligence—Master and Servant—Negligence of servant—Scope of
authority—Liability of Master—Damages.

Lirnitation—Execution—Decree—"Money secured by a judgment'-
Limitation Ordinance, 1934, secs. 3, 41—Indian Linfitation Act,
1877, Sch. II, Art. 179.

Appeal on Taxation.
Advocates’ costs—Taxation of—Appeal from Registrar—E.A.
Court of Appeal Rules. Rule 25—Discretion of Registrar—
Fee for instructions—Good cause to be recorded when fee
exceeds Sh. 75. Effect of neglect on part of Registrar to
record the cause—Fee for perusing record—Record in foreign
language.

Contract to let premises—Evidence and correspondence showing
what the agreed rent was—alleged new agreement entered
into between plaintiff’s attorney and defendant—Whether
evidence is admissible on the ground that what a party says
is primary evidence against himself as an admission though
it relates to the contents of a written instrument. Indian
Evidence Act, section 91—alleged new agreement entered
into by attorney—Whether binding on principal without
ratification—Indian Contract Act, section 237.

Ticket in Sweepstake—Claim for return of the ticket owing to-
failure of defendant to pay the price of the ticket—Substitu-
tion of plaintiff’s name for that of defendant on counterfoil—'

Ticket in question drew a horse and holder of ticket entitled
to a prize of some hundreds of pounds—-Wagering agreement
—Section 30, Indian Contract Act-—Claim for recovery of
possession of an article the property in which had never
passed from plaintiff—Whether sale on credit or for cash—
Sale of Goods Ordinance, 1930, sections 3 and 19—Whether
plaintiff entitled to judgment for the return of the ticket.

Advocates' Remuneration and Taxation of Costs—Attendance in
Court or Chambers—Date fixed for hearing—Adjournment at
request of party—Rules of Court No. 2 of 1916.

(See 11 K.L.R. 49)

Indian Evidence Act, section 32 — Admissibility of dying declarations.

Circumstantal evdence, sufficiency of — Murder — Whether evidence reached that standard of proof requisite for cases based entirely on circumstantial evidence — Cumulative effect of circumstances — Mere suspicion.

Post Office — "Postal article having thereon words, etc., of a scurrilous, etc., character" — Letter communication of a scurrilous character posted in closed envelope — Post Office Ordinance; 1934, sec. 23.

Fire—Burning "crops, stubble, grass, etc.", with the authority of the
occupier of the land—Leaving fire lighted or used in the open air
before the same shall be thoroughly extinguished—Employee of
occupier charged—Careless Use of Fire Prevention Ordinance
(Cap. 76) section 2.

Bankruptcy Ordinance, 1930—Order-of Court authorizing prose-
' cution of a debtor—Criminal Procedure Code, section 197 (1)
and section 289 (1) in relation to statement of accused and
evidence on oath—Sections 121, 342 and 346 as to granting
bail and,,effect of bail on sentence.

Criminal Procedure Code of Kenya, section 243 (3) (i)—In-
dictment Rules 1915, Rule 4—Count bad for duplicity—Inclusion

of more than one offence in one count—Whether mere irregularity
—Criminal Procedure Code section 367.—Whether substantial
miscarriage of justice.

Bearer cheque referred to drawer—Charge of false representation
—Agency subsisting between drawer and holder—-Essential
elements in charge—Penal Code of Tanganyika, section 287.

Evidence at trial.

Kenya Criminal Procedure Code, section 219—Statement of Ac-
cused in preliminary inquiry before committal.

Murder—Manslaughter—Provocation—Whether circumstances are
such as to reduce the crime to manslaughter—Case of where the accused intends to injure the person who has provoked
him but .by accident happens to kill another person whom
he never intended to hit at all.

Criminal Procedure Code Uganda, section 134—Two accused tried
' on two separate informations—Trial a nullity.

Kenya Cr. Pro, Code . secs. 163 and 164—Contents of judg-
ment—Note of summing up to Assessors.

Tanganyika Criminal Procedure Code, sections 266 and 267 Statement of accused.