Edward Samuel Limuli v Marko Sabayi

High Court, Kisumu

5th February, 24th April , 28th May, 26th June, 23rd July 1979

Cotran J

Civil Case No 222 of 1978 (OS )

Trust - trust property – land – first registration of land – validity of declaration of trust – enforceability by Court.

There is nothing in the Registered Land Act which prevents the declaration of a trust in respect of registered land, even if it is a first registration; and there is nothing to prevent giving effect to such a trust by requiring the trustee to execute transfer documents.

Zephania Nthiga v Wanjira Nthiga (unreported), Mwangi Muguthu v Maina Muguthu (unreported) and Wamathai v Mugweru (unreported) followed.

Originating summons

Edward Samuel Limuli applied to the High Court (Civil Case No 222 of 1978 (OS )) for a declaration that Marko Sabayi held part of a parcel of land on trust for him and for an order that Marko should transfer half of that parcel of land to him. The facts are set out in the judgment.

Cases referred to in judgment:

1. Mwangi Muguthu v Maina Muguthu (unreported) Civil Case No 409 of 1975, HC
2. Wamathai v Mugweru (unreported) Nyeri Civil Case No 56 of 1972, HC
3. Zephania Nthiga v Wanjira Nthiga (unreported) Civil Case No 1949 of 1976, HC.

SMO Koli for Edward.

GK Mukele for Marko.

Republic v Henry Mwaura Ikego & Simion Gatonye Migui

High Court, Appellate Side, Kisumu 2nd, 22nd June 1979

Cotran J

Criminal Appeal Nos 46 and 47 of 1979

Criminal law – trial – non-appearance of complainant – meaning of “complainant” - Criminal Procedure Code (cap 75), section 202.

In section 202 of the Criminal Procedure Code, which requires a subordinate court (in specified circumstances) to acquit an accused if the complainant fails to appear at the hearing of the charge, the word “complainant” includes a public prosecutor. Accordingly, the accused cannot be acquitted under section 202 when the prosecutor is in Court, even though he may not be in a position to proceed as the person making the complaint and other key witness may be absent.

Nguma v The Republic of Tanzania (unreported) applied.

Appeal

The Republic appealed to the High Court (Criminal Appeal Nos 46 and 47 of 1979) against the acquittals of Henry Mwaura Ikego and Simion Gatonye Migui by HH Buch Esq in the Resident Magistrate’s Court, Kakamega, on 11th January 1979 in Criminal Case No 487 of 1978. The facts are set out in the judgment of Cotran J.

Cases referred to in judgment:

1. Nguma v The Republic of Tanzania (unreported), Criminal Appeal Nos 48 and 49 of 1976, EACA.

AGA Etyang for the Republic.

JS Behan for the Respondents.

Republic v Malek Abdulla Mohamed

High Court, Appellate Side, Kisumu

15th June 1979

Cotran J

Criminal Appeal No 113 of 1978

Criminal law – trial - withdrawal of complaint – subordinate court – need for application of withdrawal – Criminal Procedure Code (cap 75), section 204.

A subordinate court may only make an order allowing the withdrawal of a complaint and the acquittal of the accused under section 204 of the Criminal Procedure Code when an application for withdrawal has been made to it under that section.

Appeal

The prosecution appealed to the High Court (Criminal Appeal No 113 of 1978) against the decision of A Rauf Esq in the Senior Resident Magistrate’s Court, Kisumu, in Criminal Case No 1209 of 1977 withdrawing the complaint against Malek Abdulla Mohamed and acquitting him. The facts are set out in the judgment.

No cases were referred to in the judgment.

Republic v Thomas Okinyi Kibiba

High Court, Kisumu 17th, 19th, 10th, 21st, 23rd April 1979

Cotran J

Criminal Case No 71 of 1978

Criminal law – evidence – corroboration – repudiated confession – court satisfied that confession true.

Criminal law – evidence – corroboration – unsworn evidence of child – retracted confession corroborating evidence.

A Court may convict on a repudiated confession by an accused without corroboration if it is fully satisfied (after considering all the material points and surrounding circumstances) that the confession cannot but be true.

Tuwamoi v Uganda [1967] EA 84 applied.

Per Cotran J. While evidence which itself requires corroboration cannot provide corroboration for other evidence which also requires corroboration, a repudiated or retracted statement by an accused person may in a proper case amount to corroboration of a child’s unsworn statement.

Trial

Thomas Okinyi Kibiba was charged before the High Court (Criminal Case No 71 of 1978) with the murder of his son James on 18th March 1978. The facts are set out in the judgment.

Cases referred to in judgment:

1. Pyaralal Melaram Bassan and Wathobia s/o Kiambu v R [1961] EA 521,EACA.
2. Tuwamoi v Uganda [1967] EA 84, EACA.

B Chunga State counsel for the Republic.

W Nyakongo (instructed by Nyakongo, Odongo & Co) for the Accused.

James Omolo Makinda and Francis Wandera Romano v Republic

High Court, Appellate Side, Kisumu

11th April 1979

Cotran J

Criminal Miscellaneous Applications Nos 50 and 51 of 1979 (Consolidated)

Criminal law – trial – venue – transfer to another Court – no fair and

impartial trial – test – Criminal Procedure Code (cap 75), section 81(1)(a).

In the exercise of the High Court’s jurisdiction under the Criminal Procedure Code, section 81(1)(a), to transfer a criminal case to a different subordinate court, the proper criterion to apply is whether a reasonable apprehension has been created in the mind of the accused that he would not have a fair and impartial trial before the original Court.

In the Matter of an Application by MS Patel (1913) 5 KLR 66 followed.

The Republic v Hashimu [1968] EA 656 applied.

Application

James Omolo Makinda and Francis Wandera Romano Were applied to the High Court (Criminal Miscellaneous Applications Nos 50 and 51 of 1979 (Consolidated)) for an order transferring the venue of their trial to another Court. The facts are set out in the judgment.

Cases referred to in judgment:

1. Patel (MS), In the Matter of an Application by (1913) 5 KLR 66.
2. Republic, The v Hashimu [1968] EA 656.

Republic v Kenneth Oluoch Olunga

High Court, Kisumu

15th March 1979

Cotran J

Criminal Case No 55 of 1978

Criminal law - evidence – confession to police officer – person acting as police officer – assistant chief to whom accused brought by clan elder – Assistant Chief taking accused to police – Evidence Act (cap 80), section 29.

A clan elder brought the accused to an Assistant Chief, and accused him of killing O. The assistant chief, acting in that capacity, asked the accused why he had killed O. The accused replied that he had killed O because O had called him a thief. The Assistant Chief then took him to the administrativion police, an officer of which together with the Assistant Chief escorted the accused to a police post. The accused repeated his explanation to the Assistant Chief whilst under escort. On the question whether the accused’s confession was inadmissible under section 29 of the Evidence Act as having been made to a police officer,

Held:

That even though the confessions had not been made to a police officer as they had been made to Assistant Chief, who was (at the time ) performing the functions of a police officer investigating the case, they were inadmissible under section 29.

R v Surumba (1940) 19 KLR 125 and R v Jigungu s/o Tungu (1943) 10 EACA 111 applied.

Ruling on evidence

In the course of his trial (Criminal Case No 55 of 1978) Kenneth Oluoch Olunga made objection to the admission of statements which he had made to an Assistant Chief. The facts are set out in the ruling.

Cases referred to in judgment:

1. R V Jigungu s/o Tungu (1943) 10 EACA 111.
2. R v Surumba (1940) 19 KLR 125.

Advocates

AGA Etyang State counsel for the Republic.

Daniel NSO Omondo for the Accused.