All courts - 1950

Murder—Common intention to rob—Change of common intention by some members of a gang but not all—Indian Penal Code, sections 34, 149, 379, 381 and 396.

J urisdiction—Defendant resident in Aden—Contract made in Italy for payment of
money in Yemen—Aden Colony Order in Council, 1936, clauses 15 (1) and

(2) and 16—Supreme Court Ordinance of Aden (Cap. 1'27)—Indian Civil Pro-
cedure Code, 1908, section 20—Civil Courts Ordinance of Aden (Cap. 22),

section 18 (1)—Eastern African Court of Appeal Rules, 1954, rule 74 (4)
and (5). •

Contract—Sale of shops—Duty of vendor to purchaser between contract and
completion—Position where Court makes an order misunderstanding what
counsel had agreed—Kenya Civil Procedure (Revised) Rules, 1948, Order
XIV, rule 1; Order XX, rule 3; Order XLII, rule 1 (2) and Order XLIV,
rule 1—Eastern African Court of Appeal Order in Council, 1950, section
14 (b)—Eastern African Court of Appeal Rules, 1954, rules 74(4) and 78—
Kenya Civil Procedure Ordinance, sections 67(2), 97, 99 and 100—Indian
Transfer of Property Act, section 54—Kenya Indian Acts (Amendment)
Ordinance, section 2—Indian Trusts Act, 1882.

Landlord and Tenant—Agreement for tenant to have new tenancy in rebuilt
premises—Specific performance—Aden Evidence Ordinance, section 100 (/)

—Aden Transfer of Property Ordinance, section 52—Aden Contract Ordin-
ance, section 70—Aden Specific Relief Ordinance, section 18—Aden Rent

Restriction Ordinance.

Damages—Notional standard—Reassessment by appellate Court.

Evidence—Young persons—Corroboration—Evidence of other offences not
charged—Aden Penal Code, section 354—Aden Evidence Ordinance, sections
14 and 15—Indian Evidence Act.

Negligence—Whether contributory negligence of the driver of a car, which
would disentitle him to claim damages, affects his infant passenegr so as to
disentitle him also—Kenya Age of Majority Ordinance—Kenya Traffic
Ordinance (Cap. 232) section 13(3)—The Law Reform (Contributory
Negligence) Act, 1945.

Chose in action—Assignment—Whether assignee can sue without joining assignor
—Law of Property Act, 1925, section 136 (1)—Judicature Act, 1873, section
25 (b)—Uganda Order in Council, 1902, section 15.

(Appeal from decision of R.M.’s Court at Kericho H. G. Sherrin, Esq.)
Civil Procedure Ordinance O.XLI, r. 1 (1) Certified copy of decree to be filed
with Memorandum of Appeal Section 3, “Decree” definition, proviso 
includes judgment, for purposes of appeal New points in appeal, not “taken”

in Lower Court Meaning Increase of Rent and Mortgage Interest (Restric-
tions) Ordinance, 1940, section 4 Written consent of Rent Control Board

necessary for institution of Court proceedings Absence of averment of such
consent in plaint Effect Absence in plaint of averment of contractual
relation of landlord and tenant Effect.

Statement by accused when charged with murder of X—Whether admissible when accused subsequently charged with murder of Y.

The accused was charged under section 238 of the Kenya Penal Code with
omitting to take precautions against probable danger from fire in his hotel. He
• was acquitted on the ground that his conduct fell short of criminal negligence.
Held (21-12-50).—That the degree of rashness or negligence required to prove this charge
was not that high degree required in cases of manslaughter and the case must be remitted
to the Resident Magistrate for reconsideration.
Case referred to: R. v. Vishawanath Vishnu Dabholkar, XI E.A.C.A. (1944) p. 102
Somerhough, Deputy Public Prosecutor, for the Crown.
Gledhill for the respondent.

Trial' with Assessors—Taking of assessors’ opinions on particular points—When
Court of Appeal will interfere—Kenya Criminal Procedure Code, sections
258, 293, 294 and 318.

Stamp Duty—Document insufficiently stamped—Admissibility—Stamp Duty
Decree (No. 5 of 1940) sections 39, proviso (a), 64—Eastern African Court
of Appeal Order in Council, 1950, section 16.

Procedure—Death of co-plaintiff—Whether suit based on quasi-contracts abates—
Indian Contract Act, sections 9, 45 and 69 to 72—Tanganyika Order in
Council, 1920, section 17 (2)—Tanganyika- Civil Procedure Rules, Order
XXII, rule 2.

(From Original Conviction and Sentence in Criminal Case No. 75 of 1950 of the
First Class Magistrate’s Court at Meru—R. Brayne-Nicholls, Esq.)
Criminal Procedure Code—Section 134—Charge—Particulars necessary for giving
information as to nature of offence—Defective charges—Alteration of charge
—Accused not asked to plead to fresh charge—Section 381 (a)—Defects not
1 curable—Prejudice to accused.

Rating valuation—Whether rent paid by tenant or sub-tenant criterion for
valuation—Aden Municipal Ordinance (Laws of Aden, 1955, Cap. 102),
section 50 (1) and (2)—Aden Rent Restriction Ordinance.

Landlord and tenant—Rent restriction—Co-heir to property also tenant—Executor
under Muslim Law—Succession Ordinance (Cap. 126), section 192 (1)—

Rent Restriction Ordinance, 1947, section 10 (1)— Rent Ristrictions (Amend-
ment) Ordinance, 1950, section 3—Transfer of Property Ordinance (Cap. 135), section 102.

Manslaughter—Death from natural causes not excluded by medical evidence—
Kenya Penal Code, sections 202 (a) and 246—Kenya Criminal Procedure
Code, section 179 (1).

Advocate—Professional misconduct—Functions of Appellate Court—Standard of
proof—Kenya Advocates Ordinance, 1949. sections 9 (1) (Z>), (9) (3) (i) (ii) (iii).
10 (3) and 15 (1) and (2).

Landlord .and -tenant—Statutory tenant—Public health—Demolition order not
served on tenant—Whether conflict between Rent Restriction Ordinance and
Public Health Ordinance—Uganda Public Health Ordinance (Cap. 98)
.section 68 (1).and .(2)—Uganda Rent Restriction Ordinance (Cap. 115) section
.6 .(1) (/) .and (A-).

Contract—Loss—Action to minimize—Offer before action tantamount to tender—
। Costs—Discretion exercised on false premises—Sale of Goods Ordinance

(Cap. 213 of the Laws of Uganda, 1954), sections 16 and 36.

Intent—Effect of intoxication on—Onus of proof.

Negligence—Motor-car accident—Negligence of plaintiff—Whether contributory negligence.

(From original sentence in Criminal Case No. 831 of 1950 of the R.-M.’s Court

at Eldoret—E. B. Hosking, Esq.)

Transfer of land-—Conspiracy to defeat claims of creditors—Whether transactions
void or voidable—Aden Civil Courts Ordinance, section 91 (b)—Aden Civil

Courts Rules, rule 442; Aden Evidence Ordinance, section 10—Aden Trans-
fer of Property Ordinance, sections 6 (2) (i) and (ii) and 53—Law of Property

Act, 1925, section 172—Aden Interpretation and General Clauses Ordinance,
section 41—Indian. Transfer of Property Act, section 6 (h) and 23—Aden
Contract Ordinance, section 25—Indian Contract Act, sections 17 and 23—
Aden Documents Registration Ordinance, section 9 (1) (b)—Aden Specific
Relief Ordinance, section 38 (1) and (2)—Indian Specific Relief Act, section
39.

Discretion—Refusal of trial Judge to view the locus in quo—Witness—Crown
not obliged to call—Kenya Criminal Procedure Code, sections 150 and 378 (1).

Homicide in defence of property—Degree of force permissible—Malice^Uganda
Penal Code, section 182.

Bill of Exchange—Endorsement in blank—Whether person in possession is a “holder” and can sue in his own name—Bills of Exchange Ordinance, sections 2, 8 (3), 21 (2) (b), 31 (1), 32 (6), 34 (4), 35 (1). 38 (1), 57 and 59.

The facts appear sufficiently from the judgment.

Muslim Law—Gift of land—Whether retention of rents and profits by donor
invalidates gift—Costs taxed in the Supreme Court reduced.

Fees paid on filing records out of time—Whether “deposited” or “paid”—Refund
—Indian Land Acquisition Act, 1894—Eastern African Court of Appeal
Rules, 1954, rules 11 (1) and (2) and 58—Eastern African Court of Appeal
Order in Council, 1950, section 19 (4)—Eastern African Court of Appeal
Rules, 1925, First Schedule.

Defence (Control of Prices) Regulations, 1948—Section 11 (1)—Traders Licensing
Ordinance—Section 17 (1)—Cancellation of licence—Date and period of
cancellation—Not specified in order—Previous convictions—No police
record—Oral admission by accused—Effect.

Findings—Appellate Court willing to make “original” findings of fact where necessary—-Pleadings—Decision based on grounds not pleaded—Kenya Civil Procedure Ordinance and Rules.

Landlord and Tenant—Repairs by tenants for agreement for new tenancy—
Expenditure to be set off against rent—Property sold in execution to tenants ■ —Whether expenditure recoverable—Tanganyika Land (Law of Property
•• and Conveyancing) Ordinance (Cap. 114), section 11—Tanganyika Rent
Restriction Ordinance (No. 16 of 1951) as amended by Ordinance No. 10
of 1954, section 2 (3).

Murder—Accessory after the fact—Accomplice—Corroboration.

• Matrimonial Causes Ordinance, sec. 22—Petitioner’s claim for damages against

Co-respondent—Principles and considerations in assessing—Damages compen-
satory and not punitive—Adtual injury sustained by husband—Injury to

feelings and marital honour—Conduct of co-respondent—Means of co-
respondent not “a priori” material—Value of wife—Pecuniary—Consortium.

Landlord and Tenant—Jurisdiction—Rent Control Board—Business Premises—
Effect of proviso to section 1 (2) of the Increase of Rent (Restriction)

Ordinance, 1949—Kenya Landlord and Tenant (Shops and Hotels) (Tem-
porary Provisions) Ordinance, 1954—Kenya Ordinance No. 8 of 1953—

Kenya Increase of Rent (Restriction) Ordinance, 1949, sections 1 (2), 5 (1) (p),
16 (1) (k) and 16 (8).

(Appeal from the decision of Resident Magistrate’s Court at Nairobi—

F. Roberts, Esq.)

Case stated—Non-appealable sentence—Revision not appropriate—Defence
(Control of Prices) Regulations, 1945, Reg. 11 (1) (b)—Defence (Control of
Charges for Services) Order, 1948 (Government Notice No. 914 of 1948)—
Price Controller’s Order No. 20 of 1949—Not published in Government

Gazette—Paragraph 8, cancellation of all previous Price Orders—Interpret-
ation Ordinance, 1948, section 12 (a)—Amendment, variation, recission or

revocation “in the same manner”—Defence Regulations, 1939, Reg. 99 (1)—
No statutory obligation on Price Controller to publish Orders in Government
Gazette—Reg. 101 power to revoke or vary orders and rules exercisable “in
like manner and subject to the like conditions” as the making of those rules
and orders.

Autrefois acquit—Previous trial held to be a nullity—Plea not available—Practice
—Joinder of other charges with that for murder or manslaughter.

Procedure—Extra-judicial statement made to district commissioner in charge of
police—Indian Evidence Act, 1872, sections 24, 25 and 26.

Evidence—Statements by deceased—Whether accused’s failure to give evidence on
oath cap be corroboration—Disclosure by advocate of advice to accused—
Indian Evidence Act, section 126.

Proceedings—Application for stay of on leave to appeal to Privy Council—
Eastern African (Appeal to Privy Council) Order in Council, 1951,
sections 3 (a) and 6—Increase of Rent (Restriction) Ordinance, 1949.

Landlord and Tenant—Rent Control Board—Jurisdiction of Board—Res judicata—Increase of Rent (Restriction) Ordinance, 1949, sections 1 (2). 5 (J) (n) and 16 (1) (a) and (5)—Increase of Rent (Restriction) (Amendment No. 2)
Ordinance, 1951.

(Appeal from decision of R.M.’s Court at Nairobi—R. L. LeGallais, Esq.) Case stated—Penal Code—Sec. 71 (a), membership of unlawful society— Sec. 58 (2), possession of seditious publication without lawful excuse— Sec. 58 (3), defence—Ignorance of contents of document—Lawful excuse— Sec. 72 (4), document “belonging to” unlawful society—Meaning—Burden of proof

Plea of guilty—Must be unequivocal—Court not entitled to presume what
witnesses would say—Indian Penal Code, section. 307—Indian Evidence Act.
sections 105 and 114—Somaliland Arms and Ammunition Ordinance,
section 12 (2).

Revision—Order returning Sh. 5,000 to an accused—Original payment to Inspector
(in a police trap) unchallenged—Whether Court had jurisdiction to make the
order—Criminal Procedure Code, sections 177 and 178—Section 3 (3)—
section 8 (a), Criminal Appeal Act, 1907.

Inheritance—Khoja Esmailia—Codicil—Hindu and Mohamedan Customary law— - Hindu Wills Act, 1870—-Whether applicable

Procedure—Application of Order XVI, rule 2 of the Uganda Civil Procedure
Rules—Indian Civil Procedure Rules, Order XVIII, rule 2.

Res judicata—Allegation of fraud in second proceedings—Whether in issue in
first proceedings—Whether issue “heard and finally decided”—Civil
Procedure Decree of Zanzibar, section 6, Explanation IV—Indian Code of
Civil Procedure, section 11.