Chaama Hassan Hasa v The Republic

High Court, Appellate Side, Nairobi 2nd December 1974

Trevelyan & Hancox JJ

Theft – handling stolen goods – doctrine of recent possession – presumption of guilt from possession of goods – evidence in favour of accused.

The first paragraph in the two-paragraph judgment in R v Aves (1950) 34 Cr App Rep 159 spells out the formula to be applied where the only evidence against an accused is his possession of property recently stolen; the second paragraph provides for cases where, in addition to that possession, there is other evidence against the accused which tends to show guilty knowledge. R v Aves does not cater for the situation where the other evidence favours the accused; whether or not a presumption of guilt from possession arises in such a case will depend on all the facts. If it does arise, the rule in R v Aves should be applied; if it does not, the rule has no application.

R v Seymour (1954) 38 Cr App Rep 68, CCA, applied.

R v Aves (1950) 34 Cr App Rep 159, CCA, explained.

Cases referred to in judgment:

Ezera Kyabanamaizi v R [1962] EA 309.

Kamweli s/o Nguku v R [1960] EA 164.

Miligwa s/o Mwinje v R (1953) 20 EACA 255.

Patrisi Ozia v R [1957] EA 36.

R v Aves [1950] WN 342, (1950) 2 All ER 330, (1954) 34 Cr App Rep 159, CCA.

R v Ndaria s/o Kuruki (1945) 12 EACA 255.

R v Ramji Hirji (1946) 13 EACA 127.

R v Seymour [1954] 1 WLR 678, [1954] 1 All ER 1006, 38 Cr App Rep 68, CCA.

Usin v Republic of Uganda [1973] EA 467.

Appeals

Chaama Hassan Hasa was convicted of theft of a motor vehicle in Criminal Case No 1134 of 1974 before the Senior Resident Magistrate’s Court at Nairobi. He appealed to the High Court (Criminal Appeal No 502 of 1974) against conviction and sentence. Mohamed Hershi who was also convicted of theft of the motor vehicle in Criminal Case No 1134 of 1974 also appealed against conviction and sentence (Criminal Appeal No 503 of 1974) and the two appeals were consolidated. The facts are set out in the judgment of the Court.

Appeals allowed.

Convictions quashed.

The appellants did not appear and were not represented.

B Chunga State counsel for the Republic.

Muthiori v Republic

High Court, at Nairobi November 15, 1974

Wicks CJ & Trevelyan J

Criminal Appeal No 459 of 1974

Criminal practice and procedure - preparing to commit a felony contrary to Section 308(1) of Penal Code and being in possession of a firearm contrary to Section 4 of the Firearms Act Cap 114 - definition of possession - circumstances indicating intent to commit a felony - definition of dangerous and offensive weapon - whether ammunition is a weapon.

Charge sheet - contents of - failure to state in the particulars of the charge the felony intended.

The appellant was charged with preparing to commit a felony, being in possession of ammunition. The weapons in question were four big stones, a pair of gloves, an automatic pistol and seven rounds of ammunition. The trial magistrate found the appellant guilty on all three charges, hence this appeal to the High Court.

Held :

1. Gloves and stones cannot be defined as dangerous and offensive weapons, and therefore their inclusion cannot support the charges.

2. It is a grevious misuse of the English Language to equate the word “ammunition” with the word “weapon.”

3. The six rounds of ammunition and the pistol were not found in the possession of the appellant when he was arrested, they were found several hours later. In the clear and ordinary meaning of the word possession, since they were not found where he was arrested it cannot mean they were in his possession.

4. The charge of being in possession is the only one that is sustainable the others are not. Conviction on count one and two set aside and the sentence on count three is upheld. Before closing we wish to say that a careful magistrate will check each charge sheet before he puts any charge to an accused person and will sign the sheet to show that he has done so. He will, also, before closing his judgment, compare his findings of fact with the law. This will help him to ensure that charges such as that brought in Count 1 in this case are in conformity with the law on which they are claimed to be based, and will make it easier for him to comply with the requirements of Section 169 of the Criminal Procedure Code, which in turn will assist him to avoid the pitfalls into which the magistrate in this case so regrettably fell.

Appeal dismissed.

Cases

1. Ramadhani v Republic

2. Mwaura and others v Republic [1973] EA 373

3. Lumsden v Republic 35 Cr App R 57

4. Parkin v Republic 34 Cr App R 1

5. Maina s/o Kimani v Republic [1955] 22 EACA 360

6. DDP v Brooks [1974] 2 WLR 899 at p 903 D and E

Statutes

1. Criminal Procedure Code (Cap 75) Section 187

2. Penal Code (Cap 63) Section 308(1) & (2)

ET Monks & Co Ltd v Evans

High Court, at Nairobi

August 15, 1974

Kneller J

Civil Suit No 77 of 1971

Criminal Practice and Procedure – dismissal of suit – for want of prosecution – application for – principles applied by the courts in such application – nature of remedy available to plaintiff whose suit is dismissed for want of prosecution – Civil Procedure Rules Order XVI rule 5.

The defendant/applicant filed a motion on notice for orders that the plaint filed against it by the plaintiff be struck out and that the suit be dismissed for want of prosecution. The court considered the principles to be applied in such applications.

Held:

1. Public policy demands that the business of the courts should be conducted with expedition.

2. Under Order XVI rule 5 of the Civil Procedure Rules, the defendant to an action may apply to set down a suit for hearing or apply for its dismissal if the plaintiff does not set it down for hearing within three months after the close of pleadings, the removal of the suit from the hearing list or the adjournment of the suit generally.

 3. Whether an application for dismissal of a suit for want of prosecution should be allowed or not is a matter for the discretion of the judge who must exercise it judicially. The court should, among other things, consider whether the delay was lengthy, whether it has rendered a fair trial impossible and whether it was inexcusable. However, each case will turn on its own facts and circumstances.

4. If an action is dismissed for want of prosecution, a plaintiff may sue his advocate for negligence unless such plaintiff has caused or consented to the delay which led to the dismissal of the action.

 5. The delay in this case was inordinate and inexcusable and a trial would be prejudicial to the defendants, as important witnesses may no longer be traced.

Application allowed, suit dismissed for want of prosecution.

Cases

 1. Reggentin v Beecholme Bakeries Ltd (1967) 111 Sol Jo 216: [1968] 1 All ER 566

 2. Fitzpatrick v Batger & Co Ltd [1967] 2 All ER 657

 3. Allen v Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543; [1968] 2 QB 229

4. Saldanha and Others v Bhailal and Company and others [1968] EA 28

 5. Sheikh v Gupta and Others [1969] EA 140

 6. Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA

7. Clough v Clough [1968] 1 All ER 1179

8. Marlton (an infant) v Lee-Leviten [1968] 2 All ER 874

9. Gloria v Sokoloff [1969] 1 All ER 204

10. Abdul and Another v Home and Overseas Insurance Company Limited [1971] EA 564

Statutes

 1. Civil Procedure Rules (cap 21 Sub Leg) order XVI rule 5

 2. Rules of the Supreme Court [UK] order 25 rule 1(4)