Joseph Ondu Okumu v Republic

Court of Appeal, Kisumu

1st December 1980

Miller , Potter JJ A & Simpson Ag JA

Criminal Appeal No 35 of 1980

Criminal appeal - decision of appellate tribunal - need to state reasons - sufficiency of reasons - Criminal Procedure Code (cap 75), section 169. .

Criminal law – evidence – identification - identity parade -irregularity in holding parade - comment by third party to complainant encouraging identification made before parade - no unfairness.

When a High Court judge on a first appeal gives in broad outline his reasons for agreeing with the magistrate’s findings on the crucial issue in the case, he sufficiently complies with his responsibility to state the reasons for his decision. Moreover, the formal requirements of section 169 of the Criminal Procedure Code relating to a judgment do not apply to a judgment on an appeal. Misana v The Republic [1967] EA 334, EACA, and Mosee v The Republic [1980] Kenya LR 112, CA, considered.

An identification parade is not rendered unfair by any comment to the effect that the police wanted the complainant to identify someone which is made by a person who has no responsibility for the parade and is not even a police officer.

Cases referred to in judgment:

1. Lubogo v Uganda [1967] EA 440, EACA.
2. Misana v The Republic [1967] EA 334, EACA.
3. Mosee v The Republic [1980] Kenya LR 112, CA.
4. Ssentale v Uganda [1968] EA 365, Sir Udo Udoma CJ.

Appeal

Joseph Ondu Okumu appealed to the Court of Appeal (Criminal Appeal No 35 of 1980) against the decision of Scriven J in the High Court, Kisumu, on 27th June 1980 in Criminal Appeal No 45 of 1980 dismissing his appeal against his conviction for robbery. The grounds of his appeal are set out in the judgment of the court delivered by Miller JA.

Chauhan v Omagwa

Court of Appeal, at Kisumu

June 13, 1980

Madan, Law & Potter JJA

Civil Appeal No 12 of 1980

(Appeal from the High Court at Kisii, Cotran J)

Land – registered land – rectification of land register – rectification in case of fraud - rectification affecting title - circumstances in which such rectification may not be allowed - where registration is a first registration – where registered proprietor is in possession - Registered Land Act (cap 300) section 143

The registered proprietor of the suit land entered into agreements for its sale to two separate persons, first to the respondent who immediately went into possession, and then, about a year later, to the appellant who was registered as the absolute proprietor and issued with a Land Certificate.

In a suit filed by the respondent against the vendor and the appellant, the trial judge granted the respondent a declaration that the sale to the appellant was null and void and made a direction under section 143 of the Registered Land Act (cap 300) for the rectification of the land register to show the respondent as the absolute proprietor. The appellant appealed arguing, among other things, that the judge had erred in ordering the rectification of the register, in holding that he was not a bona fide purchaser of the land for valuable consideration and without knowledge of the previous sale and in not considering that the plaint did not disclose a cause of action against him.

Held:

1. Two prerequisites to the immunity of a party from the rectification of a land register under section 143 of the Registered Land Act (cap 300) are that the registration of that party was a first registration and that the party is in possession of the land having acquired it for valuable consideration and without knowledge of any omission, fraud or mistake.
   In this case, the transfer in favour of the appellant had not been a first registration and the appellant had not been in possession of the land.
2. Once the court was satisfied that the registration in favour of the appellant was made by fraud by the vendor, it was authorised by section 143 to order rectification of the register even if the plaint did not disclose a cause of action against the appellant. It was the registration made by the fraud of the vendor which permitted an order for rectification to be made by the court.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Registered Land Act (cap 300) section 143(1), (2)

Advocates

Mr. Fernandes for the Appellant

Mendo Chacha v Republic

Court of Appeal, Kisumu

13th June 1980

Madan, Law & Potter JJ A

Criminal Appeal No 69 of 1979

Theft - handling stolen property - doctrine of recent possession – goods handled not identified as goods stolen.

A gang attacked a shopkeeper and his wife and stole various clothes and materials from the shop. A few hours later, the appellant was seen carrying a bundle of new clothes in the bush near a river. He was charged with the robbery, but at his trial he denied having been involved or having been found with any luggage near the river. Although the clothes found in the bundle which he was carrying were not identified with the property stolen from the shop, he was convicted on the basis that the doctrine of recent possession applied. On appeal,

Held:

The appeal would be allowed since the failure to identify the goods found in the bundle carried by the appellant with the property stolen from the shop precluded the application of the doctrine of recent possession.

No case was referred to in the judgment.

Appeal

Mendo Chacha appealed to the Court of Appeal (Criminal Appeal No 69 of 1979) against the order of Cotran J of 14th September 1979 dismissing his appeal against his conviction for robbery. The facts are set out in the judgment of the court.

Walter Marando v Republic

Court of Appeal, Kisumu

12th June 1980

Madan, Law & Potter JJ A

Criminal Appeal No 16 of 1980

Criminal law – sentence - factors affecting sentence – consistency in sentencing – disparity between sentences imposed on co-accused – absence of good reason for disparity.

The appellant and the co-accused were charged with murder. They were acquitted of murder, but convicted of manslaughter. The appellant, a first offender, was sentenced to four years’ imprisonment and his co-accused to one days’s imprisonment. The trial judge gave no reason for the disparity in the sentences. On the appellant’s appeal against sentence,

Held:

1. The sentence would be reduced to three months’ imprisonment (effectively securing the appellants early release) because it was wrong in principle to impose different sentence in two people who had been convicted of the same offence, except for good reason; in the present case there was no justifiable reason for such disparity. Dictum of Hilbery J in R v Ball (1951)35 Cr App Rep 164, 166, England CCA, applied.

Case referred to in judgment:

1. R v Ball (1951) 35 Cr App Rep 164, England CCA.

Appeal

Walter Marando appealed to the Court of Appeal (Criminal Appeal No 16 of 1980) against his conviction and sentence for manslaughter before Cotran J and assessors in the High Court, Kisii, on 20th March 1980 in a Criminal Case No 52 of 1979. the facts are set out in judgment of the court.

Emmanuel Wanyonyi v Republic

Court of Appeal, Kisumu

12th June 1980

Madan, Law & Potter JJ A

Criminal Appeal 74 of 1979

Criminal law – sentence - factors affecting sentence - consumption of chang’aa.

No case was referred to in the judgment.

Appeal

Emmanuel Wanyonyi appealed to the Court of Appeal (Criminal Appeal 74 of 1979) against the sentence of eight years’ imprisonment imposed on him by Cotran J on 28th November 1979 in Criminal Case No 51 of 1979 after he had pleaded “guilty” to manslaughter.

Orwochi Arani v Republic

Court of Appeal, Kisumu

11th June 1980

Madan, Law & Potter JJ A

Criminal Appeal No 3 of 1980

Criminal law - sentence – manslaughter – custodial sentence – accused attacked by deceased – absence of provocation – accused a young man of good character – four years’ imprisonment manifestly excessive.

No cases referred to in the judgment.

Appeal

Orwochi Arani appealed to the Court of Appeal (Criminal Appeal No 3 of 1980) against the sentence of four years’ imprisonment imposed by Cotran J on 17th December 1979 in Criminal Case No 88 of 1979 when he had pleaded “guilty”to a charge of manslaughter.

Joseph Malowa v Republic

Court Of Appeal, Kisumu

9th June 1980

Madan, Law & Potter JJ A

Criminal Appeal No 26 of 1979

Criminal law – evidence – corroboration - what constitutes corroboration - conduct - disappearance after offence.

Corroboration of identification evidence when visibility had been poor and of a dying declaration connecting the accused with the offence charged but which was made in the same conditions was provided by the accused’s subsequent disappearance from home and remaining absent for six months. Terikabi v Uganda [1975] EA 60, EACA, applied.

Case referred to in the judgment:

1. Terikabi v Uganda [1975] EA 60, EACA.

Joseph Malowa appealed to the Court of Appeal (Criminal Appeal No 26 of 1979) against his conviction for murder before Cotran J in the High Court, Kisumu, on 2nd May 1979 in Criminal Case No 3 of 1979. The facts are set out in the judgment of the court delivered by Madan JA.

John Mosee v Republic

Court of Appeal, Kisumu

9th June 1980

Madan, Law & Potter JJ A

Criminal Application No NAI 2 of 1980

Criminal appeal – decision of appellate tribunal – need to state reasons – failure to state reasons.

Case referred to in judgment:

Misana v The Republic [1967] EA 334, EACA.

Application for leave to appeal

John Mosee applied to the Court of Appeal (Criminal Application No NAI 2 of 1980) for leave to appeal out of time against the order of Cotran J on 22nd October 1979 in Criminal Appeal No 812 of 1979 dismissing his appeal against conviction for robbery.

Apeli v Buluku

Court of Appeal, at Kisumu

 January 14, 1980

Law, Miller & Potter JJA

Civil Appeal No 12 of 1979

 (Appeal from the High Court at Kisumu, Cotran J)

Burial dispute – burial customs – place of burial – whether at ancestral home or at matrimonial home - where deceased expressed intention regarding place of burial - law applicable in such cases - need for Minister’s permit in disinterring remains of a deceased - Public Health Act (cap 242) section 146.

Customary law - burial customs - Bunyore customs - application of - manner in which customary law is applied - relevance of English law - where deceased expressed intention to be buried in matrimonial home - issues the courts should consider - Judicature Act (cap 8) section 3 - Public Health Act (cap 242) section 146.

The respondent, a widow of one Simon who had passed away, filed a suit against the appellants, who were two brothers of the deceased. In that suit, it was ordered by the trial judge, in accordance with the prayers sought by the respondent, that she be allowed to remove the remains of her late husband which had been interred at his place of birth/ancestral home in Ebosiroli village of East Bunyore, and that they be re-interred according to the deceased’s wish in Bungoma District where he and the respondent had purchased land and established a home. The appellants appealed against this decision arguing, among other things, that because this case did not fall under the legal exceptions to the provision in section 146 of the Public Health Act (cap 242) that a body may not be disinterred without a permit from the Minister, the trial judge’s order had been made without jurisdiction.

Held:

1. Though the parties in this case were generally subject to African customary law and the Court was enjoined by section 3(2) of the Judicature Act (cap 8) to be guided by that law, the English law on the subject could be applied to this case subject to such qualifications as the circumstances of Kenya rendered necessary.
2. In cases such as this, the most important rule is that the wishes of the deceased person, though not binding, must, so far as possible, be given effect to. On the evidence in this case, it was clear that the intention of the deceased was to be buried in Bungoma District.
3. Where the wishes of a deceased person are not contrary to custom nor contrary to the general law or public policy or safety, as it was in this case, the High Court has a general discretion to order the removal of the remains of the deceased from one place to another subject, however, to the grant of a permit by the Minister in charge of health.
4. The learned judge had jurisdiction to make the order in the case but his order should have been made conditional upon the grant of a permit by the Minister under section 146 of the Public Heath Act (cap 242). That, however, was a matter which could be corrected in the order made in this appeal.

Appeal dismissed.

Cases

1. Re Matheson [1958] 1 All ER 202

Texts

1. Williams, E.V.M., Clifford, J.H.G., (1970) Williams and Mortimer on Executors, Administrators and Probate London:Stevens and Sons p 57

Statutes

1. Judicature Act (cap 8) sections 3(1),3(2)
2. Births and Deaths Registration Act (cap 149) sections 18, 19
3. Public Health Act (cap 242) section 146
4. Criminal Procedure Code (cap 75) sections 387(2), 388(3)

Advocates

1. Mr J Khaminwa for the Appellant
2. Mr Omondi for the Registrar General of Births and Deaths as Amicus Curiae