Mbugua v Olang & another (No 2)

High Court, at Nairobi

December 28, 1979

Hancox J

Civil Case No 3338 of 1979

Civil Practice and Procedure – costs – discretion of court to award costs – defendant successful in his application to be struck off the suit – whether such party entitled to his costs at that stage – plaintiff successful in resisting an application for discharge of an interlocutory injunction - whether a plaintiff a “successful” party entitled to costs at that stage.

Following a Chamber Summons application made by the defendant and a former second defendant, the latter defendant succeeded in his prayer to be struck off as a party to this suit and an ex parte temporary injunction was ordered to continue against the defendant until the result of the trial.

The second defendant sought to be awarded his costs.

The plaintiff, on his part, argued that having been successful in resisting the application to discharge the temporary ex parte injunction, he was entitled to his costs at that interlocutory stage as well and further, that he was not liable to pay the second defendant’s costs since in the circumstances, it had been reasonable to join that defendant in the suit.

Held:

1. Regarding the order made in the plaintiff’s favour to continue the ex parte injunction against the remaining defendant, it could not yet be said that the plaintiff had succeeded against that defendant since the purpose of a temporary injunction is to preserve the status quo until the main issues in the case have been properly heard.

2. Since at this stage nothing had been done or said to alter the status quo and to finally determine the issue of the plaintiff’s position as a Vicar of a church parish, this Court would not at this stage give costs to the plaintiff against the defendant on that matter.

3. A successful plaintiff may still have to pay all the costs of an action. In order to justify an order refusing a defendant his costs, he must be shown to have been guilty of conduct which induced the plaintiff to bring the action, and without which it would probably not have been brought.

4. If the plaintiff succeeds in this case against the defendant, he will have to establish that the first defendant was guilty of some misconduct which led the plaintiff to join the Synod.

5. It would not be right to keep the second defendant out of its costs on the ground that, when the case is decided, it would be more just to the plaintiff (if successful) at that stage to give a Sanderson or Bullock order. There was no ground for depriving the second defendant of its costs at this stage.

Application allowed.

Cases

1. Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967]EA 289

2. Preston v Luck (1884) 27 Ch D 497

3. Mohamed and Another v Haidara [1972] EA 166

4. Dicks v Yates (1881) 18 Ch D 76; 50 LJ Ch 809; 44 LT 660, CA

5. Ritter and Wife v Godfrey [1920] 2 KB 47; [1918 – 19] All ER 714; 89 LJKB 467; 122 LT 396

6. Campbell (Donald) & Co Ltd v Pollack [1927] AC 732; [1927] All ER Rep 1, HL

7. Bullock v London General Omnibus Co [1907] 1 KB 264; [1904 – 07] All ER 44; 76 LJKB 127; 95 LT 905

8. Sanderson v Blyth Theatre Co [1903] 2 KB 533

9. Dobie (DT) & Co (U) Ltd v United India Fire & General Insurance Co Ltd [1964] EA 16

10. Mayer v Harte [1960] 2 All ER 840; [1960] 1 WLR 770, CA

11. Salsbury v Woodland [1969] 3 All ER 863, CA

12. Kierson v Joseph L Thompson and Sons Ltd [1913] 1 KB 587

Texts

Jacob, I H et al (Eds) (1959) The Annual Practice London: Sweet & Maxwell

Statutes

1. Civil Procedure Act (cap 21) section 27(1)

2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 7

Advocates

Mr Sampson for the Plaintiff

Mr Le Pelley for the Defendant

.

Charles Jim Wachira, Joseph Thumbi and Osman Mukiri v Republic

High Court, Appellate Side, Nairobi 27th November, 10th December 1979

Trevelyan & Hancox JJ

Criminal Appeal Nos 588, 589 and 596, respectively, of 1979

Theft – robbery – assault with intent to steal with violence – charging offence – use of statutory words – Penal Code (cap 63), section 297.

Criminal law – evidence – corroboration - Retracted confession - corroboration not essential by reason of contents and manner of challenge.

Criminal law – accomplice - common purpose - abandonment of common purpose – intention – opportunity to dissuade fellow accomplice from acting not taken – escape from scene of crime.

Criminal law – trial - reference to defendant - co-defendants – desirability of avoiding reference only by number.

C, O and J raided a store in broad daylight with intent to steal money; C was armed with a pistol and ammunition. As they entered the store C told I (who was inside) to lie down; as he did not do so, C shot him with his pistol. Mrs M (a shop assistant) was also shot before the gang decided to leave, their plan having been foiled; as they were escaping one of them shot at and wounded T. O subsequently made a statement to the police in which he said that when C drew the pistol and fired at I he (ie O) did not wait to see the result but ran back to the get-away vehicle. The statement, however, was not as damning to O as might have been expected had it been fabricated by the police with intent to secure O’s conviction; moreover, it contained details which were not known to the police. C, O and J were charged with “being armed with a pistol and with intent to steal, jointly attempted to steal money from Mrs M and at or immediately before or immediately after the time of the attempted robbery wounded Mrs M, T and I”. At their trial O denied having made the statement to the police and claimed that, having been beaten and slapped at the police station, he had been forced to sign a document which had been prepared by someone else. Although a police inspector was cross-examined about the statement, no reference was made in cross-examination to the alleged beating or slapping. The magistrate ruled that the statement was admissible, that what it said was, true and that it was corroborated by the evidence of other witness. C, O and J were convicted and appealed.

Held:

Dismissing the appeals,

(1) although it was desirable that the offence of attempted robbery should be charged in the actual words of section 297 of the Penal Code and although the fact that T had been wounded should not have been referred to in the charge as he was wounded in the course of the escape after the proposed robbery had failed, the errors in the form of the charge did not in the circumstances prejudice the appellants nor did they constitute a failure of justice. Dictum of Lord Morris of Borth-y-Gest in Director of Public Prosecutions v Merriman [1972] 3 All ER 42, 47, and Abubakali v Uganda [1973] EA 230 applied. Gakuu Macharia v The Republic, page 264, ante, approved.

(2) There was sufficient corroboration of O’s statement to the police to justify the magistrate’s reliance on it; even had there not been, the magistrate would have been entitled to rely on it by reason of its contents and the manner in which it had been challenged. R v Wanjerwa (1944) 11 EACA 93 and Dictum of Lord Hailsham of St Marylebone LC in R v Kilbourne [1973] 2 WLR 254, 263, applied. Sahal Mohammed Hussein v The Republic [1976] Kenya LR 53 approved.

(3) O could not be said to have dissociated himself from the crime as he did not attempt to stop C from using the pistol (which he knew that C had and had seen him draw) and the mere escape to the vehicle did not constitute an abandonment of the joint enterprise. Thiong’o v The Republic [1977] Kenya LR 180 followed. R v Becerra (Antonio) (1976) 62 Cr App Rep 212 applied. Observation on the undesirability in a criminal trial of referring to coaccused in Court only by numbers (such as “the first accused”).

Appeals

Charles Jim Wachira, Joseph Thumbi and Osman Mukiri appealed to the High Court (Criminal Appeal Nos 588, 589 and 596, respectively, of 1979) against their convictions and sentences at the Senior Resident Magistrate’s Court, Nyeri (Criminal Case No 183 of 1979) on a charge of a attempted robbery. At the trial, Charles was accused No 1, Joseph was accused No 3 and Osman was accused No 2. Their appeals were consolidated. The facts are set out in the judgment of the court which was delivered by Trevelyan J.

Cases referred to in judgment:

1. Abubakali v Uganda [1973] EA 230, EACA.
2. Anyangu v The Republic [1968] EA 239, EACA.
3. Balbir Sain Joshi v R (1951) 18 EACA 228.
4. Director of Public Prosecutions v Merriman [1973] AC 584, [1972] 3 WLR 545, [1972] 3 All ER 42 HL.
5. Gakuu Macharia v The Republic, page 264, ante,
6. Gitonga v The Republic (1977) (unreported) Criminal Appeal Nos 529 and 721 of 1976, Trevelyan and Platt JJ.
7. Makin v Attorney-General of New South Wales [1894] AC 57, 63 LJPC 41, 69 LT 778, PC.
8. Mbugua v The Republic (1979) (unreported) criminal appeals 166 and 291 of 1979 High Court; criminal appeal 28 of 1979, CA
9. R v Becerra (Antonio) and John David Codrer (1976) 62 Cr App Rep 212 CA.
10. R v Seaman (1978) 67 Cr App Rep 234, CA.
11. R v Wanjerwa (1944) 11 EA CA 93.
12. Republic, The Kasungu Kombe [1966] EA 69, EACA.
13. Sahal Mohammed Hussein v The Republic [1976] Kenya LR 53,

Trevelyan and Sachdeva JJ

Thiong’o v The Republic[1977] Kenya LR 180 EACA.

The appellants were not represented on the appeal.

John Ndegwa State Counsel for the Republic.

Mbugua v Olang & another

High Court, at Nairobi

November 28, 1979

Hancox J

Civil Case No 3338 of 1979

Civil Practice and Procedure – parties to suits – striking out a party to a suit – where no cause of action is disclosed against a party – how court will exercise the jurisdiction to strike out a party.

Society – church organization – disciplinary matters among the clergy of a church – reluctance of courts to interfere with such matters – courts may nevertheless step in to remedy breaches of natural justice.

Ecclesiastical law - discipline of clergy - reluctance of courts to interfere with internal matters of church organisation - courts may step in to remedy breaches of natural justice.

The plaintiff filed this suit against the Archbishop of Kenya and the Diocesan Synod of Nairobi challenging what he termed as their decision to write a letter to him intended to terminate his services as a clergy of the Church.

The defendants applied for a discharge of an ex parte temporary injunction which had been granted in the case to preserved the status quo so that the plaintiff continued to act in his office. The second defendant also applied to be struck out as a party to the suit on the grounds that no cause of action had been shown against it and that the action was an abuse of the process of the court.

The defendants submitted that the Synod was not a proper party to the suit because nowhere in the subject letter had the Archbishop purported to act on behalf of it and neither did it have disciplinary powers over the clergy. Moreover, they further argued, the plaintiff had gone to court prematurely because by the legal and natural construction of the letter, there was no dismissal or termination of his services as alleged.

Held:

1. As with all summary remedies, the Courts are always exceedingly careful in applying the rule because it is a fundamental principle that no person shall be shut out from having his case heard by the court so long as there is a fairly arguable case, even though it might appear to the court that it is unlikely to succeed. Recourse should be had to this summary process in plain and obvious cases.

2. There was nothing in the Constitution of the Diocese and the Canon of the Discipline of the Church to support the plaintiff’s contention that the Synod was in any way concerned with or responsible for disciplinary  matters affecting the clergy as such matters were the concern of the Bishop and the Bishop’s Court. Neither was there anything in the subject letter to suggest that it emanated from the Synod or from the Archbishop in his capacity as chairman.

3. The plaintiff had therefore not shown any reason for impleading the Synod in the suit.

4. The Court would not arrogate to itself powers to decide on matters which are not ordinarily justiciable by the Courts and pronounce upon the conclusiveness or otherwise of decisions taken in respect of disciplinary matters affecting the clergy. The Court could, however, step in to correct clear breaches of natural justice.

5. The plaintiff had shown that the subject letter could at this stage be construed as an attempt to dismiss him. Even if the letter was merely suspending him so that the complaints laid could be investigated, it would be a monstrous injustice to suspend a man from a living he had held for three years, and who had served the Church impeccably before that for some 17 years, on unspecified and undisclosed complaints.

6. Upon consideration of all the material on record, the balance of convenience clearly lay on the side of continuing the temporary injunction. Moreover, it was clear that if the plaintiff ultimately succeeded, any damages he got would be unlikely to be an adequate remedy if he was found unjustly to have lost his position in the Church.

2nd Defendant struck off the suit, application to discharge injunction refused.

Cases

1. American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504; [1975] 2 WLR 316; [1975] AC 396

2. NWL Ltd v Nelson [1979] 1 WLR 1294; [1979] 3 All ER 614

3. Solomon v Presbyterian Church of East Africa & others High Court Civil Case No 2859 of 1977

4. Patel v University of Bradford Senate [1979] 1 WLR 1066; [1979] 2 All ER 582, CA; [1978] 1 WLR 1488, [1978] 3 All ER 841, Ch D

5. McMillan v Free Church of Scotland (1961) 23 Dunl (Court of Session) 1314

6. Forbes v Eden (1867) LR 1 Sc & Div Appeal Case 568

7. Lee v Showmen’s Guild of Great Britain [1952] 1 All ER 1175; [1952] 2 QB 329

8. Mohamed & another v Haidara [1972] EA 166

9. Nsubuga v Mutawe [1974] EA 491

10. Elliot v Klinger [1967] 3 All ER 144

11. Marengo v Daily Sketch & Sunday Graphic [1948] 1 All ER 407

12. Seaward v Paterson (1897) 1 Ch 549

13. Acrow (Automation) Ltd v Rex Chainbelt Inc [1971] 3 All ER 1175; [1971] 1 WLR 1676, CA

Texts

Jacob, IH et al (Eds) The Annual Practice London: Sweet & Maxwell

Statutes

1. Rules of the Supreme Court [UK] order 18 rule 19; order 19 rule 27; order 25 rule 4

2. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13(1)

3. Trade Disputes Act 1906 [UK]

4. Employment Protection Act 1975 [UK]

Advocates

Mr P Le Pelley for the Defendants/Applicants

Mr Sampson & Mr Makecha for the Plaintiff/Respondent

Khalif Haret v Republic

High Court, Appellate Side, Nairobi 14th November 1979

Trevelyan & Hancox JJ

Criminal Appeal No 1 of 1979

Theft - handling stolen goods - stolen goods - belief by defendant that goods stolen – Penal Code (cap 63), section 322.

Court martial – evidence - abstract of evidence - certificate accompanying–failure to supply certificate to defendant with abstract.

Evidence - hearsay – meaning of “hearsay”.

On a charge of handling stolen property (contrary to section 322 of the Penal Code), the prosecution must prove that the goods in question had been stolen and it is not sufficient to establish merely that the defendant believed that the goods had been stolen. Dictum of Lord Reid in Haughton v Smith [1974] 2 WLR 1, 11, applied.

A certificate in prescribed form should accompany an abstract of evidence which is served on an accused person under the Armed Forces Rules of Procedure; if it does not accompany the abstract, however, its absence may be treated as a mere technical breach of the rules, provided that it does not have a prejudicial effect on the accused or the conduct of his defence.

Hearsay evidence is evidence of a fact spoken to by someone who did not himself perceive it of his own senses, but proved by him to have been said by someone else. Hence, what a person not called as a witness has said cannot be received in evidence to prove the truth of the facts stated; although if it is not the truth of what was said that is sought to be proved but only that it was said, the evidence would be admissible.

Appeal

Khalif Haret appealed to the High Court (Court–martial Criminal Appeal No 1 of 1979) against his conviction and sentence by a Court–martial held at 3 KR, Nakuru Barracks, on charges of committing two civil offences, contrary to section 69 (1) of the Armed Forces Act. The facts are set out in the judgment of the court delivered by Hancox J.

Cases referred to in judgment:

1. Davies v Director of Public Prosecutions [1954] AC 378, [1954] 2 WLR 343, [1954]: 1 ALL 507, ER HL.
2. Haughton v Smith [1975] AC 476, [1974] 2 WLR 1, [1973] 3 All ER 1109, HL.
3. Mahon v Osborne [1939] 2 KB 14, [1939] 1 All ER 535, CA.
4. Okethi Okali v The Republic [1965] EA 555, EACA.
5. Pyaralal Melaram Bassan v R [1961] EA 521, EACA.
6. R v Asumani Logoni s/o Muza (1943) 10 EACA 92.
7. R v Gokaldas Kanji Karia (1949) 16 EACA 116.
8. R v Kilbourne [1973] 2 WLR 254, [1973] 1 All ER 440, HL.
9. R v Kipkering arap Koske (1949) 16 EACA 135.
10. R v Thakar Singh s/o Kahir Singh (1934) 1 EACA 110.
11. Tuwamoi v Uganda (1967) EA 84, EACA.
12. Uganda v Kimchand Kalidas Shah [1966] EA 30, EACA.
13. Wanja Kanyoro Kamau v The Republic [1965] EA 501, EACA.

CN Omondi for the Appellant.

Capt Mbewa for the Republic.

Silas Anditi Kojewi v Republic

High Court, Appellate Side, Nairobi

30th October, 5th November 1979

Trevelyan & Hancox JJ

Criminal Appeal No 351 of 1979

Theft – obtaining by false pretences - obtaining credit – ingredients of offence - Penal Code (cap 63), section 316.

The offence of obtaining credit by false pretences (section 316 of the Penal Code) comprises three distinct elements: an incurring of a debt or liability, an obtaining of credit in respect of the payment or repayment of money, and fraud.

R v Jones [1898] 1 QB 119 and Fisher v Raven [1964] R C 210 applied.

Appeal

Silas Anditi Kojewi appealed to the High Court (Criminal Appeal No 351 of 1979) against his convictions on four charges of obtaining credit by false pretences and sentence in the Resident Magistrate’s Court, Nairobi (Criminal Case No 2358 of 1978).

Cases referred to in judgment:

1. Fisher v Raven [1964] AC 210, [1963] 2 WLR 1137, [1963] 2 All ER 389, HL.
2. R v Jones [1898] 1 QB 119, 67 LJQB 41, 77 LT 503, CCR.

The appellant did not appear and was not represented.

J Ndegwa for the Republic.

Gregory Muli Masau and Michael Muisa Masau v Republic

High Court, Appellate Side, Nairobi

31st October 1979

Trevelyan & Hancox JJ

Criminal Appeals Nos 550 and 549 of 1979

Criminal law - wrongful confinement - nature of offence - total restraint of victim – Penal Code (cap 63), section 263.

Criminal law – evidence –witness – credibility - comments by trial judge - comments at conclusion of witness’s evidence – Criminal Procedure Code (cap 75), section 199.

Two appellants handcuffed their victim in the hotel where he worked, forced him outside, demanded money as the price of his release and assaulted him. They were charged, inter-alia, with wrongful confinement contrary to section 263 of the Penal Code and assault. At their trial a clinical officer gave evidence regarding the victim’s injuries; at the conclusion of his evidence, the magistrate stated that the witness was entirely uncreditworthy. The appellants were convicted and appealed.

Held:

Dismissing the appeals on the charges of wrongful confinement and assault:

1. No fixed boundaries were necessary for an offence under section 263 to be committed; it was sufficient for the prosecution to have shown that the victim was totally restrained by the appellants. Bird v Jones (1845) 115 ER 668 applied.
2. (2)Although a magistrate might properly pass remarks on a witness’s demeanour whilst the witness was under examination (ie in accordance with section 199 of the Criminal Procedure Code), he was not similarly entitled to indicate his view as to the credibility of that witness on the sum total of his evidence at that stage in the trial; nevertheless, on the totality of the evidence, the magistrate had been entitled to reach the findings that he did with regard to the assault. Byamungu s/o Rusiliba v R (1951) 18 EACA 236 applied.

Cases referred to in judgment:

1. Bird v Jones (1845) 7 QB 742, 15 LJQB 82; 115 ER 668.
2. Byamungu s/o Rusiliba v R (1951) 18 EACA 236.
3. R v Billas s/o Luhoyo (1947) 14 EACA 137.

Appeals

The appeals of Gregory Muli Masau and Michael Muisa Masau to the High Court (Criminal Appeals Nos 550 and 549 of 1979, respectively) against their convictions before VD Shevde Esq in the Resident Magistrate’s Court Machakos, on counts of robbery; wrongful confinement and assault were consolidated and heard together. They also appealed against sentence. The facts are set out in the judgment of the court delivered by Hancox J.

Advocate

J Ndegwa State Counsel for the Republic.

The appellants were not present, nor represented.

Firdos Verjee v Republic

High Court, Appellate Side, Nairobi

30th October 1979

Trevelyan & Hancox JJ

Criminal Appeal No 809 of 1979

Criminal law – sentence - factors affecting sentence – illness requiring treatment - need for proof that treatment not available in prison -need to bring illness to the attention of trial court.

Appeal

Firdos Verjee appealed to the High Court (Criminal Appeal No 809 of 1979) against her sentence of three years imprisonment ordered by the Senior Resident Magistrate, Nairobi, on her conviction of conspiracy with Joseph Kuria to defraud the Standard Bank . (In a note dated 21st November 1979 appended by Hancox J (with the approval of Trevelyan J) to the transcript of the judgment it is stated that an appeal by Joseph Kuria was  summarily dismissed by Simpson J on 22nd September 1979 (Criminal Appeal No 681 of 1979).

No case was cited in the judgment.

Advocates

S Dhanji for the Appellant.

J Ndegwa State Counsel for the Republic.

Joseph Gitonga Githongo v Republic

High Court, Appellate Side, Nairobi

29th October 1979

Trevelyan & Hancox JJ

Criminal Appeal No 277 of 1979

Theft – information - particulars of offence - allegation that cash stolen – inadequacy of charge where cheque stolen.

Appeal

Joseph Gitonga Githongo appealed to the High Court (Criminal Appeal No 277 of 1979) against his conviction and sentence by TTM Aswani Esq in the Senior Resident Magistrate’s Court, Nyeri (Criminal Case No 1037 of 1978), for stealing by a person employed in the public service. The facts are set out in the judgment of the court.

Case referred to in judgmet:

1. Menzour Ahmed s/o Sheikh Saleh Mohamed v R [1957] EA 386, EACA.

Ole Kaparo for the Appellant.

Mrs S Channa State Counsel for the Republic.

John Kimee Kiarie and Raphael Wanyoro Wafula v Republic

High Court, Appellate Side, Nairobi

11th October 1979

Sachdeva J

Criminal Appeals Nos 390 and 379 of 1979

Criminal law – sentence – corporal punishment – omnibus sentence impermissible.

Cases referred to in judgment:

1. Mohamed Warsama, HT Musa Aboker, Bah Majelo v R (1956) 23 EACA 576.
2. R v Meyerowitz (1947) 14 EACA 130.

Appeals

John Kimee Kiarie (“John”) and Raphael Wanyoro Wafula (“Raphael”) appealed to the High Court (Criminal Appeals Nos 390 and 379 of 1979, respectively) against their convictions against CJN Mwaniki Esq in the First Class District Magistrates’ Court at Thika on five counts of simple robbery and one count of malicious damage and their sentences. The appeals were consolidated and heard together. The facts are set out in the judgment.

Advocates

CK Mwihia for Raphael.

GC Kariundi for the Republic.

John was not present, nor represented.