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Court of AppealPartially AllowedCivil Appeal (not stated in judgment)

Attorney General v Sunderji t/a “Crystal Ice Cream" (Civil Application 20 of 1984) [1986] KECA 3 (KLR)

Court of Appeal of Kenya
29 October 1986
2,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out a Kshs 347,700 sugar seizure claim because the owner sued three years too late under the Public Authorities Limitation Act.

What this practically means

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Executive summary

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The Attorney-General appealed against the judgment of Bhandari, J of the High Court at Mombasa delivered on February 3, 1983, which ordered the Attorney-General to pay Zaheraji Jamal Sundrej Kshs 347,700.00 for 600 bags of sugar seized by the Government in November 1974 and later sold through the Kenya National Trading Corporation without the owner's knowledge. The High Court had found the seizure lawful but the disposal unlawful. KNTC did not appeal. Before the Court of Appeal, the appellant argued that the respondent's claim was founded on an illegal purchase made without a permit (ex turpi causa) and that the suit was barred by section 3 of the Public Authorities Limitation Act (cap 39); the respondent contended that ownership passed despite illegality, that the Government was a bailee obliged to return the sugar, and that the cause of action accrued on the failure to meet a demand. The Court, in a judgment delivered by Nyarangi, JA, with Gachuhi, JA reaching the same conclusion, held that the seizure was lawful under section 15 of the Imports, Exports and Essential Supplies Act (cap 502), but that absent proceedings or a magistrate's authorisation, the Director could not lawfully retain or sell the goods beyond one month, so the disposal was unlawful and time ran from December 24, 1974. The Government was never a bailee, the statutory seizure powers excluding agreement. The action, filed on November 2, 1977, was statute-barred. The appeal was allowed, the High Court judgment set aside with costs, and the respondent's suit dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's claim was defeated by the illegality of the purchase of the sugar without a permit (ex turpi causa)
  2. 2.Whether the Government became a bailee of the seized sugar such that the cause of action arose on failure to return it
  3. 3.Whether the respondent's suit was barred by section 3 of the Public Authorities Limitation Act (cap 39)
  4. 4.Whether the cause of action lay in detinue or quasi-contract (money had and received / unjust enrichment)

Key legal issues

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01

Whether the respondent's claim, founded on an unlawful purchase without a permit, was defeated by illegality (ex turpi causa)

Holding

No - the claim failed on limitation, not illegality; the seizure was lawful but the disposal was unlawful

Reasoning

The court held the seizure lawful because the respondent obtained the sugar contrary to the Director of Trade and Supplies' directions under section 10(1)(d), but the sale without the magistrate's authorisation under section 17 was unlawful. The respondent was held to his pleadings and to limitation. The court refused to let a common law doctrine circumvent the statutory scheme, and noted the respondent had benefited by not being prosecuted.

p. 4
02

Whether the Government became a bailee of the seized sugar

Holding

No bailment arose; the statutory powers of seizure exclude agreement or negotiation

Reasoning

The court rejected the respondent's submission that the Director became a bailee obliged to return the sugar after one month. There was no contract for the Government to take possession, and the Director's powers of entry and seizure under section 15 were of a drastic, draconian nature excluding agreement. Detinue could not therefore found a cause of action accruing later than the lawful retention period.

p. 5
03

Whether the suit was barred by limitation under the Public Authorities Limitation Act (cap 39)

Holding

Yes - the action, brought on November 2, 1977, was out of time, limitation having run from December 24, 1974

Reasoning

The Director could lawfully retain the seized goods for a period not exceeding one month under section 18. As no proceedings were commenced and no magistrate authorised sale or disposal, any wrongful act after December 24, 1974 was tortious and the claim was statute-barred 12 months later. Section 3(2) of cap 39 applied; the detinue and quasi-contract arguments could not escape it.

p. 4

Legal principles established

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  • Where a lawful seizure of goods is not followed within one month by proceedings or a magistrate's authorisation to sell, continued retention and disposal of the goods is unlawful and the limitation period runs from the expiry of the lawful retention period.
  • A seizure under statutory powers of a drastic, draconian nature does not make the seizing authority a bailee; no bailment arises absent agreement.
  • A common law doctrine cannot be relied upon to circumvent a statutory limitation provision.

Court orders

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  1. 1.The judgment entered in the High Court in favour of the respondent against the appellant is set aside with costs
  2. 2.The appellant is not to bear the costs of the respondent against the second defendant (KNTC) in the High Court
  3. 3.The respondent's suit both here and below is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
On appeal from
High Court of Kenya, Mombasa
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal from a High Court judgment (constitutional/statutory basis not stated in the judgment)

Relief refused

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Return of the 600 bags of sugar or their market value

The action was statute-barred under section 3(2) of the Public Authorities Limitation Act, time having run from December 24, 1974

p. 4

Costs

Judgment in the High Court set aside with costs; the appellant ought not to bear the costs of the respondent against the KNTC in the High Court; the respondent's suit both here and below is dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The seizure of the 600 bags of sugar was lawful. The respondent obtained the sugar contrary to the direction of the Director of Trade and Supplies given under sub-section 1 (d) of section 10 of the Act and so the Director was entitled to invoke section 15 of the Act and seize the sugar.
p. 4Lawfulness of statutory seizure
Under section 15, the Director has powers, of entry and seizure of a drastic, draconian nature which exclude agreement or negotiation.
p. 5No bailment from statutory seizure
The period of limitation began to run from December 24, 1974 and, pursuant to section 3(2) of the Public Authorities Limitation Act, the time expired 12 months later. By November 2, 1977, the plaintifi's action was statute-barred.
p. 4Limitation under the Public Authorities Limitation Act
I cannot think it right for a common law doctrine to be relied upon to circumvent a statutory provision.
p. 5Statute prevails over common law doctrine
I would allow the appeal and order that the judgment entered in the High Court in favour of the respondent against the appellant be set aside with costs and further that the appellant ought not to bear the costs of the respondent against the second defendant the K N T C in the High Court, and that the respondent's suit both here and below is dismissed with costs.
p. 5Final orders / disposition

Issues in the judgment

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minor

The second ground of appeal describes the appellant as having committed the tortious act, which appears to be a drafting slip for the respondent

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Attorney General v Sunderji t/a “Crystal Ice Cream" (Civil Application 20 of 1984) [1986] KECA 3 (KLR)", Case Analysis (1986). Civil Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/3/eng@1986-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.