May v Republic

Court of Appeal, at Nairobi December 17, 1979

Law, Miller & Potter JJA

Criminal Appeal No 24 of 1979

Evidence - election by accused to make an unsworn statement - adverse inference for doing so - evidential value of unsworn statements - duty of prosecution in calling witnesses of defence - witness who do not show confirmation of alibi.

Criminal Law - neglect and abandonment contrary to the Prevention of Cruelty to Animals Act (Cap 360) - ingredients of the offence of neglect - is owner or is the person whom she left in charge of the animals guilty.

This was a second appeal against a conviction for offences under Prevention of Cruelty to Animals Act (Cap 360). The facts were undisputed.

The appellant travelled overseas and during her absence her animals were grossly neglected, hence the charges. The appellant’s defence was that she had left the animals in the care of another and her employees. This she said in an unsworn statement. The two lower courts found her guilty. She has appealed to the Court of Appeal on the ground that the judge erred in considering her evidence as hearsay and in not giving weight to her unsworn statement.

Held :

1. An unsworn statement is not, strictly speaking, evidence and the rules of evidence cannot be applied to an unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential value is persuasive rather than evidential. For it to have any value it must be supported by the evidence recorded in the case.

2. No adverse inference can be drawn against the appellant for electing to make an unsworn statement, as she was exercising her right conferred upon her by Section 211(1) of the Criminal Procedure Code - (and no adverse influence was drawn by either court below).

3. It is not the duty of the prosecution to investigate possible defences, except in the case of a disclosed alibi. There is no merit in the submission that the Mr Holmes should have been called by the prosecution.

4. The prosecution fully discharged the onus of proving that, the undisputed suffering of the appellants animals arose without sufficient cause or without reasonable cause or excuse on the part of the appellant, which cause or excuse would be necessary to exonerate her from her primary responsibility as the owner. Even if the appellant was let down by her employees and friends whom she left in charge of the animals, there is no sufficient or reasonable cause or excuse for the commission of the offences from the evidence on record and therefore the appellant was rightly convicted.

Appeal dismissed.

Cases

1. Wiston s/o Mbaza v Republic [1961] EA 274

2. Hale (48 Cr App R 284)

3. John Joseph Coughlan’s case (64 Cr App R 11)

Statutes

1. Prevention of Cruelty to Animals Act (Cap 360) Sections 3(1) & 26

2. Criminal Procedure Code (Cap 75) Section 211(1)

3. Criminal Evidence Act of England 1898 Section 1(h)

Advocates

Mr Mervyn Morgan for Appellant

Amber May v Republic

Court of Appeal, Nairobi

27th November, 17th December 1979

Law, Miller & Potter JJ A

Criminal Appeal No 24 of 1979

Criminal law – trial – unsworn statement by defendant – no probative value – application of rules of evidence to statement – Criminal Procedure Code (cap 75), section 211(1).

Criminal law – defences - reasonable cause or excuse – arrangement made for care of animals in owner’s absence – arrangements inadequate – charges of cruelty, abandonment, etc, against owner – whether reasonable cause of excuse –whether sufficient cause – Prevention of Cruelty Act (cap 360), 3(1).

An unsworn statement made by an accused person in a criminal case (in accordance with section 211(1) of the Criminal Procedure Code is not evidence as that expression is generally understood and hence, although it should be taken into consideration in relation to the whole of the evidence, it has no probative value and the rules of evidence (eg as to the exclusion of hearsay ) cannot strictly be applied to it.

R v Frost, R v Hale (1964) 48 Cr App Rep 284 and R v Coughlan (1977) 64 App Rep 11 applied.

By leaving staff to care for animals and arranging for a neighbour to keep an eye on them during her absence the owner of the animals does not discharge the onus of showing that the animals’ suffering arose from without sufficient cause or without reasonable cause or excuse on her part under section 3(1) of the Prevention of Cruelty to Animals Act.

Appeal

Amber May appealed to the Court of Appeal (Criminal Appeal No 24 of 1979) against the dismissal of her appeal by Todd J in the High Court, Nairobi (Criminal Appeal No 63 of 1979), on 8th June 1979 from her conviction at a Resident Magistrate’s Court, Nairobi, on four counts charging offences under the Prevention of Cruelty to Animals Act. The facts are set out in the judgment of the court delivered by Law JA.

Cases referred to in judgment:

1. R v Coughlan (1977) 64 Cr App Rep 11, CA.
2. R v Frost, R v Hale (1964) 48 Cr App Rep 284,108 SJ 321, CCA. Wiston s/o Mbaza v R (1961) EA 274, Law J.

M Morgan for the Appellant.

Mrs S Channa State c ounsel for the Republic.

Timothy Orwenyo Missiani v Republic

Court of Appeal Nairobi 2nd November 1979.

Law, Miller & Potter JJ A

Criminal Appeal No 39 of 1979

Criminal law – sentence - causing death by dangerous driving – custodial sentence – when appropriate .

Criminal appeal – jurisdiction of appellate tribunal – sentence – sentence enhanced by High Court – whether appeal against enhanced sentence –  Criminal Procedure Code (cap 75), section 361(1).

An error in principle by the High Court assessing an enhanced sentence (under the Criminal Procedure Code Section, 354(3)) is a matter of law which can properly be raised before the Court of Appeal under section 361 (1) of the Criminal Procedure Code on a second appeal.

Kassamali Jamal v R (1949) 16 EACA 143 and Gopalbhai Nathubhai v R [1957] EA 368 applied.

Appeal

The appellant appealed to the Court of Appeal (Criminal Appeal No 39 of 1979) against the dismissal of his appeal by the High Court and the award by that Court of an enhanced sentence.

SK Guram for the Appellant.

EK Muttu Senior State Counsel for the Republic.

Joseph Ndungu Kimanyi v Republic

Court of Appeal, Nairobi

9th, 22nd October 1979

Madan, Miller & Potter JJ A

Criminal Appeal No 22 of 1979

Criminal law – evidence – witness - creditworthiness - criteria

The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression on the mind of the Court that he is not a straightforward person, or raise a suspicion about his trust worthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.

Appeal

Joseph Ndungu Kimanyi appealed to the Court of Appeal (Criminal Appeal No 22 of 1979) against the dismissal by Sachdeva J in the High Court, Nairobi (Criminal Appeal No 214 of 1977), on 11th May 1979 of his appeal against conviction for obtaining money by false pretences.

No case was cited in the judgment.

J Khaminwa (instructed by Khaminwa & Khaminwa) for the Appellant.

JM Bwononga State Counsel (instructed by the Attorney-General) for the Republic

Murita Coffee Estate Ltd v Attorney- General and Mbwanju Ltd

Court of Appeal, Nairobi 10th July, 10th August 1979

Madan, Miller & Potter JJ A

Civil Appeal No 32 of 1978

Company law - register of companies - restoration to register – grounds – otherwise… just - company bereft of property – Companies Act (cap 486), section 339(6).

Company law – register of companies – restoration to register – grounds - company in operation - failure to file annual returns – manager appointed by mortgagee- inference –Companies Act (cap 486), section 339(6)

Company law - register of companies – striking off register - bona vacantia - exercise of powers over bona vacantia – Companies Act (cap 486), section 340.

The company was incorporated in 1957. B was a director and held 4999 of the 5000 shares in the company. In 1959 the company bought a farm which it mortgaged in 1964. Subsequently the mortgagee entered possession and appointed a manager. Early in 1964 B was declared bankrupt (he was discharged in 1973), and, the company not having filed annual returns for the years 1963 to 1967, it was struck off the register of companies in July 1967. At that time Shs 400,000 was outstanding on the mortgage. On its being struck off the register, the company’s property became bona vacantia (under section 340 of the Companies Act) and vested in the Government. It appeared that the farm was sold to the second respondent by the Commissioner of Lands. Nevertheless, the manager appointed by the mortgagee remained in occupation of the farm. In December 1976, the company and B (having received an offer for the farm sufficient to discharge the outstanding sum due under the mortgage and also B’s indebtedness) petitioned the High Court for the restoration of the company to the register under section 339(6) of the Act and for revesting of its property .The petition was not opposed by the Registrar of Companies. A few days later, however, the Commissioner of Lands advised the manager that the Government would take possession of the farm and hand it over to K who had purchased it. Simpson J ruled that, in the absence of any reasons for the failure to file annual returns, it would be inferred that the company had ceased to operate by July 1967; moreover, as the farm had been sold, an order for the restoration of the company to the register would be pointless. In fact, no binding sale had been concluded at that time, but a valid grant of title to K was made after Simpson J had delivered judgment in the case. The company appealed against Simpson J’s order but, on the appeal, abandoned its request for the revesting of its property.

Held:

Allowing the appeal, that in all the circumstances of the case, it was just, in accordance with section 339(6) of the Companies Act, to order the restoration of the company’s name to the register, and the fact that it would be restored bereft of its former property was no bar to the making of the order.

Per Madan JA.

1. The failure to file annual returns does not necessarily connote that the company is not carrying on business or is not in operation.
2. The only purpose of installing the manager on the farm could have been to keep up the farm and this was sufficient, with the mortgagee in possession, to satisfy the requirement of section 339(6) of the Act that the company was in operation.
3. The Government ought not normally to dispose of the immovable property of a company acquired by it as bona vacantia (under section 340 of the Act) before the expiration of the ten years within which the Court might declare the dissolution void.

Per Miller JA. Where the Legislature has bestowed upon the company the recuperative benefits of section 339(6) with a time limit of ten years in which to seek and secure the same, the Government is no more than an interim custodian of the property (under section 340) until after the passage of that period of ten years.

Cases referred to in the judgments:

1. Industrial & Commercial Development Corporation v Kariuki &
2. Gatheca Resources Ltd [1977] Kenya LR 52, EACA.
3. Mawji v US International University [1976] Kenya LR 185, Madan J.
4. Moses and Cohen Ltd, Re [1957] 1 WLR 1007, [1957]3 All ER 232.
5. Outlay Assurance Society, Re [1887] 34 Ch D 479, 56 LJ Ch 448, 56 LT 477.

Appeal

Murita Coffee Estate Ltd appealed to the Court of Appeal (Civil Appeal No 32 of 1978) against the dismissal by Simpson J in the High Court, Nairobi, on 20th April 1977 of the petition (Miscellaneous Civil Case No 218 of 1976) by the company and its principal shareholder, Douglas Leonard Bessant, for the restoration of the company to the register. The Attorney- General and Mbwanju Ltd were the respondents to the petition. The facts are set out in the judgment of Madan JA.

Advocates

C Salter QC and PK Mureithi (instructed by Veljee Devshi & Bakrania) for the Company.

F Shields principal State counsel and and MM Ole Keiwua State counsel for the Attorney-General.

Benard Munungi Njau v Republic

Court of Appeal, Nairobi 5th June, 7th August 1979

Madan, Miller & Potter JJ A

Criminal Appeal No 17 of 1977

Criminal law – evidence - corroboration – accomplice - conviction without corroboration – accomplice creditworthy, evidence cogent – Evidence Act (cap 80), section 141.

Whilst a trial judge must always be alive to the need for independent and reliable evidence to corroborate that of an accomplice, in a rare case where the accomplice evidence is exceptionally cogent and the accomplice creditworthy it may be safe to record a conviction without corroboration; and such conviction would be within the terms of section 141 of the Evidence Act.

Appeal

Benard Munungi Njau appealed to the Court of Appeal (Criminal Appeal No 17 of 1977) against the dismissal by the High Court (Sir James Wicks CJ and Hancox J), Nairobi, on 6th October 1976 of his appeal against conviction on three counts of stealing by a person employed in the public service. The facts are set out in the judgment.

Cases referred to in judgment:

Akibaya v The Republic (unreported) Criminal Appeal No 141 of 1975.

Canisio s/o Walwa v The Republic (1956) 23 EACA 453.

Director of Public Prosecutions v Hester [1973] AC 296, [1972] 3 WLR 719 [1972] 2 All ER 1020, HL

Emperor v Maganlal, 14 Bom 119.

R v Baskerville [1916] 2 KB 658 , 86 LJKB 28, 115 LT 453, CCA.

R v Jones (1809) 2 Camp 131, 170 ER 1105.

The appellant appeared in person.

GC Kirundi for the Republic.

Dickson Ngigi Ngugi v Morrison Njenga Waweru

Court of Appeal, Nairobi

19th, 30th July 1979

Madan, Miller & Potter JJ A

Civil Application No NAI 3 of 1979

Appeal – leave to appeal - application for leave – documents supporting

application – decision of court below - certification – Evidence Act (cap

80), sections 67, 68(1)(e), (f), (2)(c) - Court of Appeal for East Africa

Rules 1972, rules 43(3), 85(5).

Although rule 85(5) of the Court of Appeal of East Africa Rules 1972 does not expressly refer to an application for leave to appeal, a certified copy of the relevant decision must accompany the application under rule 43(3); if it does not, the order of the court below is inadmissible under the Evidence Act, section 67, 68(1)(e) and (f) and (2)(c), and its inadmissibility cannot be remedied by an oral statement from the Bar of the court.

Motion

Dickson Ngigi Ngugi applied to the Court of Appeal (Civil Application No NAI 3 of 1979) for leave to appeal against a decision of Nyarangi J in the High Court, Nakuru, on 24th November 1978 giving the respondent, Morrison Njenga Waweru, possession of certain premises. The respondent raised a preliminary objection to the application. No case was cited in the judgment of the court.

S Gautama and O Kapila (instructed by DV Kapila & Co) for the Applicant.

DN Khanna and NK Githua (instructed by Githua & Co) for the Respondent.

Githunguri v Githunguri

Court of Appeal at Nairobi July 27, 1979

Wicks CJ, Law & Miller JJA

Civil Appeal No 30 of 1978

Children - custody of children - guiding principles in awarding custody - welfare of the child and paramount consideration as set out in the Guardianship of Infants Act Cap 144 Section 6 and 7(2).

The parties were married under the Marriage Act Cap 150 and had two infant daughters when they separated. The appellant (mother) applied to the High Court by originating summons under the Guardinaship of Infants Act for custody of the children. The judge rejected her application and awarded custody of the two children to the father. The mother now appeals against this order.

Held :

1. The order awarding custody to the father is set aside and substituted with an order giving legal custody of the two infant daughters to their mother.

2. The appellate court will not interfere with a judge’s exercise of discretion unless it was based on a wrong principle or was clearly a wrong decision. The trial judge in this case made the wrong decision, since the custody of young female children should be granted to the mother unless there are exceptional circumstances. In this case there are no exceptional circumstances shown to justify depriving the mother of her natural right to have her children.

3. The trial judge correctly directed himself that in cases of this nature, the paramount consideration was the welfare of the children but misdirected himself by not finding that the rule was in favour of the mother.

4. The rule is that the mother should normally have custody of children of tender years and where the court gives it to the father, it is incumbent on it to make sure that there really are sufficient reasons to exclude the prima facie rule.

5. (Per Curiam) The purported customary law marriage between the respondent and the other woman was invalid under Section 37 of the Marriage Act.

Appeal allowed.

Cases

1. S (an infant), Re [1958] 1 All ER 783

2. L (infants), Re [1962] 3 All ER 1

3. Mbogo v Shah [1968] EA 93

4. Wambwa v Okumu [1970] EA 578

5. Karanu v Karanu [1975] EA 18

Statutes

1. Guardianship of Infants Act (Cap 144) Sections 6 & 7(2)

2. Marriage Act (Cap 150) Section 37

Advocates

J Couldrey for Appellant

AA Lakha for Respondent

Ogero Omurwa v Republic

Court of Appeal, Nairobi 17th July 1979

Madan, Miller & Potter JJ A

Criminal Appeal No 14 of 1979

Criminal law – evidence – corroboration - retracted confession – desirability of corroboration - truth evident from character of confession and surrounding circumstances.

Criminal law – evidence – corroboration - retracted confession – repudiated confession not distinguishable from retracted confession.

If a retracted confession is to be admitted in evidence it should be an unfailing practice for the Court to look for credible independent corroboration of the material particulars in the statement, unless the Court is able to come to the unhesitating conclusion that the confession is true in the manner stated at page 127 of Woodroffe and Ameer Ali (9th Edn), namely that “the character of the confession and the circumstances under which it was taken indicate its worth”.

Tuwamoi v Uganda [1967] EA 84 applied.

There is no real distinction in principle between a repudiated and a retracted confession.

Dictum in Tuwamoi v Uganda [1967] EA 84, 90, applied

Appeal

Ogero Omurwa appealed to the Court of Appeal (Criminal Appeal No 14 of 1979) against the dismissal by the High Court on 23rd October 1978 of his appeal against conviction and sentence for robbery with violence. The facts are set out in the judgment of the court delivered by Madan JA.

Cases referred to in judgment:

1. Republic, The v Kamau (Samuel) (unreported), Criminal Case No 300 of 1965, High Court, Eldoret.
2. Tuwamoi v Uganda [1967] EA 84, EACA.

The appellant appeared in person.

GC Kirundi for the Republic.