Cushny v Kakamega Ore Reduction Co. Ltd (C.C. No. 70/1936) [1936] EACA 147 (1 January 1936)

# ORIGINAL CIVIL

#### Before HORNE, J.

### ALEXANDER CUSHNY, Plaintiff

#### $\pmb{\nu}.$

# KAKAMEGA ORE REDUCTION CO., LTD., Defendants

## C. C. No. 70/1936

## Mining Ordinance, 1933—Mining Regulations, 1934—Registration of document dealing with a mining location.

Held (27-10-36).—That regulation 45 (4) of the Mining Regulations, 1394, does not empower a person claiming to have an option on a location to have a number of documents alleged to be a contract registered as a "document assigning or transferring or surrendering, or in any other way dealing with or affecting any mining lease, claim or location".

The defendant company were developing the plaintiff's mining locations under an option agreement dated the 15th May, 1933, which was due to expire on the 31st May, 1934. On the 17th March, 1934, the defendant company wrote to the plaintiff enclosing a draft form of agreement. On the 27th March, 1934 the plaintiff wrote to the defendant company suggesting amendments to the draft form of agreement. By a letter dated 29th March, 1934, addressed by the defendant company to the plaintiff they agreed to the plaintiff's suggested amendments and proposed other modifications. The plaintiff accepted the proposals of the defendant company set out in their letter of 24th March by a telegram dated the 6th April, 1934. In May, 1934, the defendant company sent a draft agreement to the plaintiff which he refused to accept and execute on the ground that it materially differed from the original draft. Further negotiations took place but broke down and on the 26th August, 1935, the defendant company registered in the register of claims and locations kept in the Mines Office, a carbon copy of the letter dated the 27th March, 1934, the original letter of the 29th March, 1934, the telegram dated the 6th April, 1934, and a draft form of agreement, which it was alleged differed from the form accompanying the letter of 17th March, 1934.

Subsequent to August, 1936, there were further causes of dispute between the parties and a suit was brought claiming damages for slander of title and trespass which are not material to this report.

Stratton for the plaintiff.

Russell for the defendant company.

JUDGMENT.—A location is an area in respect of which mining rights may be acquired under a prospecting right in accordance with the provisions of the Ordinance (61 of 1933). The location is valid for one year and may be renewed annually up to five years and the holder of the location has, in addition to his prospecting right, the right to enter upon the land and the exclusive right to mine therein (sections 30 and 31). He may also transfer the location or create or transfer any interest therein (section 33). Further, he may apply for a mining lease. The location is subject to registration under section 29 and under section 64 all dealings with it must be registered.

Regulation 45 (2) of the Mining Regulations, 1934, provides for a register of locations to be kept in the Mines Office, and Regulation 45 (4) for the mode of registration. This is in the following terms: $-$

"45. (4) Any person desiring to apply for the registration of any document, assigning or transferring or surrendering or in any other way dealing with or affecting any mining lease, claim, location or Exclusive Prospecting Licence, or any right or interest under the same, shall send the original document, with a copy thereof and a copy of any plan attached to such document, together with the prescribed fee, to the Registrar, with a request that the same shall be registered. The Registrar, having first satisfied himself that the copy of the original document and of the plan (if any) is correct, and that the requisite approval of the assignment, transfer, surrender, or other transaction has been obtained, and that the document if liable to stamp duty has been duly stamped, shall endorse on the document over his signature the word "Registered" together with the date on which the document was presented for registration, and shall return the document so endorsed to the. person who shall have presented the same for registration, and shall file the copy in the Register."

Unless the contrary intention appears, words in the singular shall include the plural. (Cap. 1, sec. 2 $(43)$ ). Is "document" to be read as including "documents"? Can a number of documents be lumped together and registered as "a document assigning transferring, surrendering or in any way dealing with or affecting any location. The regulation, 45 (4), requires the original document having such effect to be sent to the Registrar with a copy.

Although on the first reading, the regulation, having regard to the holder's powers under section 33 might not be said to preclude two or more original letters which create an interest from being registered: yet to construe the regulation in that way would result in the establishment of an inconvenient practice. If two letters, why not forty letters? and it would make registration farcical for the legal construction of such documents would always be open to question. Further, it appears to me, that the true meaning to be deduced from section 24,33 and 64 of the Ordinance is to require open dealings with this special class of property, and although a holder of a location may transfer or create an interest in favour of a company, yet an attorney must be appointed to hold.

Therefore, I hold that it is not possible to register more than one document. The transfer or creation of an interest must be expressed in a single original document. Here in this case the documents consist of a telegram as delivered, the original being still in the possession of the Post Office, and a copy of a letter, not the original, which was in the possession of the receiver thereof (the plaintiff) and an unsigned form of agreement containing blanks. In my opinion therefore, these papers ought never to have been registered at all and are not capable of registration and I declare such registration to be null and void and of no effect whatsoever.