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Thursday, July 26, 2018

HISTORY OF THE SULTANATE

                                      HISTORY OF THE SULTANATE

The Sultanate can be traced to ancient Omani presence at the Kenyan Coast.  The presence of settlers from the Arabian Peninsula, including Oman has been documented for over a millennium, aided by trade and spread of Islam.  Some scholars of Antiquity have documented this in the famous Periplus of the Erythrean Sea which documents thriving Swahili/Arab settlements on the Kenyan Coast more than 1,000 years ago.  Ibn Battuta who travelled on this Coast in the early 1200s made a similar observation and there is a consensus among mainstream historians that Middle Eastern or Oman settlement on the Kenyan Coast could predate the arrival of Islam on the African continent in some aspect, or that Islam arrived on the East African Coast via these settlers before reaching most of Asia and North Africa.
 It is also a matter of consensus among historians that by the early 1600 the Sultanate of Oman had set eyes on Zanzibar as an overseas possession, eventually declaring it part of its territory in 1698. Two Omani families dominated the settler community - the Al Mazrui and Al Busaidi.  By 1698 the Al Busaidi clan or dynasty ousted the Al Mazrui from many Coastal towns including Eastern Africa.  Further treaties between them would enable the two dynasties control various aspects of life in the Omani East African possession.  The settlers intermarried with local tribes and some experts believe this led to the founding of Swahili race and language.
After generations, contact with and allegiance to Oman appeared to grow cold and weaker and today many Al Mazrui and Al Busaidi confess they cannot find their lineage in Oman.
In 1831 or 1832 Said bin Sultan, the ruler of Oman commonly known as Sayyid Said transferred the monarchy’s seat from Muscat to Zanzibar.  Zanzibar covered the Kenya Coast, many parts of current mainland Tanzania and into present day Democratic Republic of Congo (DRC) and two islands of Pemba and Zanzibar and parts of today’s Somalia.  He introduced cloves cultivation in Zanzibar and invited Indian businessmen to invest on the island.
Sayyid Said had been Sultan since 1804 and when he died in Zanzibar in 1856 two sons Majid bin Said and Thuwayni waged war to succeed him leading to the split of the Sultanate.  Thuwayni took over Oman as Majid took over Zanzibar, effectively securing Zanzibar’s independence from the old Omani Sultanate.  Majid’s rule is not celebrated for it strengthened the Zanzibar economy on the basis of slave trade.  His successor Bargash bin Said introduced policies to abolish slave trade and the system of exploitation.  His successor Khalifa bin Said further extended the anti-slavery policy and modernization of infrastructure.  Meanwhile, as early as the mid-1600s tensions between Oman and Portuguese increased, partly as a result of Portugal’s growing interest in the Indian Ocean and attempts to colonize East African.  Before that Portugal had conquered Oman but the conquest was reversed in 1660.  Portugal, after this reversal, tried to attack Oman possessions in East African including Mombasa which the Portuguese captured in the late 1690s.
This occupation ignited a resistance by Arabs and local Africans and ended in the famous Siege of Fort Jesus when the rebels besieged and starved Portuguese soldiers and adventurers and their families inside Fort Jesus to death for three years between March 13 1696 and December 13 1698.
Until 1886 the Sultanate of Zanzibar covered the Kenya Coast.  History would begin to change with the arrival of new colonizers from Britain and German.  That year during the reign of Sultan Ali bin Said Zanzibar become part of British protectorate after the signing of the Heligoland Treaty between the British and Germans.  By the Treaty the Sultanate of Zanzibar ceded its East African possessions to Britain, which would later also take over the Kenya protectorate from the Imperial British East Africa Company.
Henceforth Zanzibar, including the Kenyan Coast were ruled as a British protectorate alongside the Kenya colony and, eventually, Tanganyika from 1918 after the latter territory was taken from Germany at the end of the first World ward.
Britain exercised indirect rule over Zanzibar allowing no less than eight sultans to govern the territory until 1964 when the departing colonialists gave power to a constitutional monarchy led by Jamshid.
Following the death in 1896 of Sultan Hamid Thuwaini who had succeed Ali bin Said there was a struggle to succeed him involving Khalid Bargash who occupied the throne against the orders of the British who preferred Hamud bin Mohamed who was considered a British stooge.  When Khalid refused to vacate the palace it was attacked and he was forced into exile and Hamud bin Mohamed was installed by the British.
62. On January 12 1964 the last Sultan of Zanzibar Jamshid Abdullah bin Said fled the island of Zanzibar at the end of a rebellion by revolutionaries led by John Okello, a mysterious stone mason from Uganda or Kenya who had travelled to then British protectorate to look for work in the last days of colonialism.  Jamshid’s flight ended the long reign of 11 Sultans on the East Africa Coast, a monarch that traced its roots to Oman.  Approximately three months later, on October 5 1963, before the revolution and the flight, Jamshid had ceded control of a part of Zanzibar to the soon to be  independent Kenya in a treaty signed by him, Prime minister Jomo Kenyatta and Zanzibar’s prime minister Mohammed Shamte.  By this treaty signed in London’s Colonial Office the Kenyan Coastal strip which had been part of Zanzibar effectively since 1856 become part of the geographical and political entity called Kenya.
Zanzibar renounced its claim to the Kenyan Coast transferring the jurisdiction to Kenya.  But by taking over the Kenya Coastal strip Kenya agreed to uphold and protect Kadhi courts to arbitrate Muslims’ personal law, promote Arabic language in the new part of its territory and as much as possible allow Muslims to administer predominantly Muslim parts of Kenya.  Letters exchanged by the two prime ministers obliged Kenya to allow and uphold freedom of worship for Muslims besides preservation of their buildings and institutions.  Kenyatta accepted the condition that administrative officers “in predominantly Muslim areas should, as far as is reasonably practicable, profess the Muslim religion.”  Without this treaty independent Kenya would been landlocked.  Jamshid bin Abdulla reigned until the 1964 ouster at the Zanzibar Revolution.  He fled to the UK where he died.

from the case Hassan Ali Joho  v IG and 3 others

Saturday, July 21, 2018

APPLICATION FOR LEAVE;AGAINST A SENTENCE; FOR JUDICIAL REVIEW, MEANING AND REASONS | Lawmaterialskenya

APPLICATION FOR LEAVE TO APPEAL AGAINST A SENTENCE
An application for leave to appeal against sentence is generally made when the person sentenced has good grounds for thinking that their sentence is too severe or wrong in law, and wants it reduced, or replaced with a different sentence altogether (e.g. a community service order instead of imprisonment).

 The most common ground is that the sentence is manifestly excessive (i.e. that the sentence is so far outside the range of appropriate sentences that it can be said that the judge made a mistake in sentencing). Other possible grounds may include:
That the judge has: 1) acted on a wrong principle of law (e.g. by applying a principle of law incorrectly, or by applying a principle not applicable to the matter at hand);
 2) mistaken the facts;
 3) failed to take into account some relevant consideration, or taken into account extraneous or irrelevant matters, (e.g. by overlooking, undervaluing, overestimating or misunderstanding some feature or the evidence, ignoring a matter which he/she ought to have considered, or taking into account a matter which he/she ought to have ignored).

 The court will consider the grounds of appeal and may compare the sentence with other sentences imposed in similar cases. If the court is of the opinion that some other sentence, whether more or less severe, is warranted in law, it may allow the appeal. If the court allows the appeal, it must vary or set aside the original sentence and pass such other sentence as is appropriate.

This is not available in Kenya.To appeal, in Kenya, one only needs a memorandum of appeal from the lower court to be served to the higher court. As per Order 41 of Civil Procedure Rules.

APPLICATION OF LEAVE OF COURT FOR JUDICIAL REVIEW
Application for leave is by way of Chamber Summons under Civil Procedure Rules Order LIII(53). This application is made ex parte in sub section 3 it requires that notice be given for application for leave.
 Time limitation is crucial. Order 53 provides for time limits within which a person can apply for leave.
The law is very strict where it comes to certiorari, you have to file your application for leave within 6 months of the date your application e.g. an administrative body decides to icrease excise duties.If you do not file within 6 months the court cannot grant an extension.
 Time limitation is not stipulated for Mandamus or Prohibition but it is required that you file the application within a reasonable time.Reasonable time means that you may serve 3 months after the licence was denied and be denied leave or for 8 months and they grant leave.But with certiorari it has to be 6 months and it cannot be extended.

Thursday, July 19, 2018

HOOPER V GUMM(1867) 2Ch 282

HOOPER V GUMM

PERSONAL PROPERTY - ALIENATION - VOLUNTARY ALIENATION - VOLUNTARY ALIENATION BY DELIVERY - IN GENERAL - DELIVERY OF SHIP

An American ship, subject to a mortgage made in America, which vested the legal title to the ship in an American citizen, was sold in England. The evidence proved that the American law did not require notice of an incumbrance upon an American ship to be indorsed upon her register. There was conflicting evidence as to whether it was customary to make such indorsement, or whether purchasers in England were accustomed, from a clean register, to presume the non-existence of incumbrances. Notice of the incumbrance in question was, with the privity of the mortgagee, intentionally kept of the ship’s register, in order to facilitate her sale, from the proceeds of which the mortgagee was to be paid off: Held by intentionally concealing his charge, the mortgagee had disabled himself from setting up his legal title as against the purchaser for valuable consideration with no direct notice of the incumbrance.

A ship is not like an ordinary personal chattel, it does not pass by delivery, nor does the possession of it prove the title to it (Turner LJ).
(1) A ship is not like an ordinary chattel, which passes by delivery, and there is no market overt for ships.

(2) The legal title of a mortgagee of a ship who, for the purpose of facilitating a sale by the mortgagor, conceals his mortgage, cannot prevail in equity against a purchaser for valuable consideration without notice.

The registered owner of an American ship, mortgaged her by a bill of sale duly recorded, as required by the American law, for making a valid mortgage, but no notice of the mortgage was indorsed on the certificate of registry, such indorsement not being required by the American law, and in this case being purposely omitted in order to facilitate the sale of the ship. The ship was then, with the consent of the mortgagee, sent to England, with a power of attorney authorising the captain to sell her. Afterwards the mortgagor, without the knowledge of the mortgagee, revoked the power of attorney authorising the captain to sell the ship, and executed a new power to another person under which the ship was sold. A bill filed by the mortgagee against the purchaser to declare and enforce his legal rights as mortgagee, was dismissed.

INGRAM V LITTLE

INGRAM V LITTLE(1961) QB 31

 MISTAKE - LEGAL CONSEQUENCES AND CLASSIFICATION OF MISTAKE - MISTAKE OF FACT - MISTAKE AS TO NATURE OF TRANSACTION OR IDENTITY OF PARTY - MISTAKE AS TO IDENTITY OF OTHER PARTY - GENERAL RULE

Where, in negotiations for a contract conducted orally inter praesentes, apparent agreement is reached but there is deception as to the identity of a proposed party, the test by which to determine whether there is a contract despite the deception is to answer a question of fact, viz whether, contrary to the primâ facie presumption that an offer is made to the person to whom it is addressed, the offeror is not contracting with the physical person to whom he utters the offer but with another individual whom he believes the person physically present to be. In answer to an advertisement of a car being for sale, a swindler called on two sisters, joint owners with a third person of the car, and agreed with one of the sisters E, who negotiated for the owners, to purchase the car for £717. On her categorically refusing to accept a cheque in payment, he tried to convince her that he was a reputable person and said that he was a Mr PGM Hutchinson and lived at Stanstead House, Stanstead Road, Caterham. While the discussion was going on, the other sister went to the local post office near by and returned to say that she had checked the name and address in the telephone directory. E thereupon decided to accept the cheque, on which the swindler wrote the name and address of Hutchinson, and the owners parted with the car to him. The cheque was dishonoured and the man, who was not Mr PGM Hutchinson, disappeared. In an action by the owners to recover the car or its value from a purchaser to whom the swindler had sold it within a few days of obtaining it, and who had bought it in good faith, the court found that E had intended to part with the property in the car to the swindler in the belief that he was the PGM Hutchinson named in the telephone directory, but that otherwise the sisters would not have accepted the cheque or parted with the car. On appeal: Held the offer to sell on payment by cheque was made only to the person (Mr PGM Hutchinson) whom the swindler had represented himself to be, and, as the swindler knew this, the offer was not one which was capable of being accepted by him; therefore there had been no contract for the sale of the car by plaintiffs and they were entitled to recover the car or damages from defendant.

LEE V BUTLER

LEE V BUTLER

HIRE PURCHASE AND CONSUMER CREDIT - HIRE PURCHASE — FORMER LAW - THE HIRE PURCHASE TRANSACTION - THE NATURE OF THE TRANSACTION AT COMMON LAW - WHEN AGREEMENT TO BUY — FACTORS ACT 1889 (C 45) SS 29
An agreement was entered into between H a furniture dealer, and L who was referred to throughout as ‘the hirer,’ for the hire and purchase of certain chattels, and it was provided that ‘the hirer’ should pay to H ‘as and by way of rent for the hire and use’ of the chattels the sum of £1 on 6 May the further sum of £96 4s on 1 August. Other provisions forbade the hirer to remove the chattels, and it was declared that ‘no property or interest in the chattels should rest in the hirer until the whole of the payments of rent’ should have been actually made: Held the agreement was an agreement for purchase within s 9.

MOSS V HANCOCK

MOSS V HANCOCK

SALE OF GOODS - THE CONTRACT OF SALE GENERALLY - WHAT ARE ‘GOODS’ - UNDER SALE OF GOODS ACT 1893 (REPEALED) (C 71) — CURRENT COIN AS CURIOSITY
A coin which is current coin of the realm may be sold as a curiosity, and in such a case, if the seller was a thief who had stolen it from the owner and who had subsequently been prosecuted to conviction, an order for its restitution to the owner might be made under Larceny Act 1861 s 100 (repealed). Semble: no such order could be made if the coin had been passed into circulation as current money, although it might be possible to identify it.

A thief stole from respondent a £5 gold piece, which by Royal proclamation had been made current coin of the realm, and changed it with appellant, who was a dealer in curiosities, for five sovereigns: Held under the circumstances the coin had not been received by appellant as current coin, and an order might be made under Larceny Act 1861 s 100 (repealed), ordering appellant to restore it to respondent.

The operation of the statute is to revest in prosecutor, on conviction of the thief, the property or the thing stolen, notwithstanding that the property in it has previously passed effectively to a transferee as by sale in market overt (Channel, J). It may be that the true meaning of the saying that money has no earmark is that when current coins of the realm have passed bonâ fide from hand to hand as currency and as money they are considered, for all purposes of property in them, not to be identifiable. They become merely so much money in the possession of the person to whom they have passed. If it is a sovereign, then for all purposes of the property twenty shillings or eight half-crowns are the legal equivalent of the sovereign. If the payment to the man has been made in error the right against him is, as a rule, merely to recover so much money, and not the identical coins. ... The point only arises upon the passing of the coins from one person to another as money. The doctrine that money has no earmark, whatever it means, is undoubtedly a doctrine of our law (Channell J). Current coin may be sold as a curiosity, instead of being transferred as current coin of the realm.

Coin of the realm
1: the legal money of a country
2: something valued or used as if it were money in a particular sphere