Kamau v Republic

Court of Appeal, at Mombasa October 23, 1981

Madan, Law & Miller JJA

Criminal Appeal No 78 of 1981

Evidence - uncorroborated evidence of an accomplice in a corruption case.

Criminal Law - Corruption - ingredients of - requirement of corroboration.

The appellant a senior police officer was charged with corruption under the Prevention of Corruption Act (Cap 65). The lower courts convicted the appellant relying on the evidence of an accomplice. The appellant argued that the two courts erred in admitting and relying on the uncorroborated evidence of an accomplice.

Held :

1. A statutory accomplice is no more reliable than an ordinary accomplice, without corroboration, save where the court decides to accept the accomplices evidence, after duly warning itself of the danger of acting upon such evidence alone. Being a corruption case, this is an exceptional case where corroboration is needed even in a case of statutory accomplice.

2. A reward given for past and completed offences is not a corruption offence within the meaning of Section 3(2A) of the Act. For it to be a corrupt act, reward must be given knowing and having reason to believe that it may lead in the future to the doing of a corrupt act.

3. In the absence of corroboration the prosecution did not prove with a sufficient degree of certainty that the appellant committed the offence.

Appeal allowed.

(Per curiam): It is not part of the duties of the police force in Kenya to collect civil debts except in execution proceedings on orders of the court. Even if the police did assist in collecting debt, it was not a matter in which the police as a public body was concerned.

Cases

1. Raphael Joseph Ombere v Republic, Mombasa Criminal Appeal No 9 of 1979

2. Zakaria Shillisia Agweyu v Republic, Criminal Appeal No 64 of 1979 (Kisumu)

3. Dusara & Another, Criminal Appeal No 59 of 1980 (Mombasa)

Statutes

Prevention of Corruption Act (Cap 65) Sections 3(1), 3(2A) and 3(2)

Advocates

Mr Mbogholi Msagha for Appellant

Mr Harwood (State counsel) for Respondent

Makayora v Republic

Court of Appeal, at Mombasa October 22, 1981

Madan, Miller JJA & Simpson Ag JA

Criminal Appeal No 87 of 1981

Criminal practice and procedure trial process - accused’s failure to take part in trial in protest of partiality of court - entitlement to be tried by another court - effect of failure to object to admission of a confession statement obtained through duress at initial trial.

The appeal arises from a conviction upheld by the High Court on a count of conspiracy to commit a felony and another count of preparation to commit a felony. During the trial before the magistrate’s court, the accused had protested to the magistrate that he did not trust the impartiality of the court. The magistrate overruled him and proceeded to hear the case upon which the accused refused to take part in the proceedings. The magistrate later convicted him and on his appeal to the High Court his conviction was upheld.

His appeal to the court of appeal is grounded on the admission of a confession procured through beating and the failure of the learned judge of the High Court to take into account the possibilities of duress applied in obtaining the confessed statement.

Held :

1. Where the appellant’s objection to the trial court is spurious and without merit the magistrate can dismiss his plea.

2. If the appellant of his own volition refuses to object to the admission of a statement even when given the opportunity by the magistrate he cannot later object to it.

3. That the confession in the appellant statement had been corroborated by evidence of his presence at club in possession of offensive and dangerous weapons

4. The appellant was properly convicted, based on the evidence and facts before the court. If the statement was obtained by duress, the accused have raised the objection at the earliest opportunity which he was given by the magistrate. The accused cannot later as an afterthought object to such a statement.

Appeal dismissed.

Cases

No case referred to.

Statutes

1. Firearms Act (Cap 114) Section 34(2)

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

3. Criminal Procedure Code (Cap 75) Secton 211

Mutuku v Republic

Court of Appeal, at Mombasa October 22, 1981

Madan, Miller JJA & Simpson Ag JA

Criminal Appeal No 93 of 1981

Criminal practice and procedure - enhancement of sentence after inordinate delay - whether such enhancement is lawful where the accused is not the cause of delay.

The accused had been charged and convicted of a charge of two counts of stealing contrary to Section 275 of the Penal Code. He was fined Kshs 750 or six months imprisonment in default on each count and the AG was dissatisfied with the sentence and applied for the enhancement of it. In the interim the accused had lost his job and was in the process of beginning a new career with an insurance firm. The accused appealed to the court of appeal against the enhancement citing delay on the part of the prosecution and that the proceeding would impact his life negatively.

Held :

1. The delay on the part of the prosecution was inordinate and the resultant enhancement of the sentence was prejudicial to the general welfare of the accused.

2. Enhancement of the sentences denied and the sentence imposed by the Magistrate restored.

Appeal dismissed.

Cases

No case referred to.

Statutes

Penal Code (Cap 63) Section 275

Kaduda v Douglas

Court of Appeal, at Mombasa July 28, 1981

Wicks CJ, Law & Miller JJA

Civil Appeal No 27 of 1981

Appeal - preliminary objection raised at appeal - failure to issue a notice of appeal - failure to serve the record of appeal - failure to include a formal decree in the record of appeal - extension of time to file notice of appeal.

Succession - customary law succession - when is a deceased within the ambit of customary law - application for grant of letters of administration - whether being a guardian in accordance with customary law entitles one to object to letters of administration being issued.

Children - guardianship of children - who can be a guardian upon death of one parent - what law governs guardianship of child - does customary law apply.

The deceased died intestate. He was survived by his wife married under civil law, two children, his mother and older brother. His wife applied for letters of administration for his estate. His mother and older brother objected on the ground that the brother according to Pokomo customary law was the guardian of the children hence was the rightful person to be granted letters of administration. The trial court held that the mother/wife is the rightful guardian of the child and that she should be granted letters of administration.

Held :

1. Failure to include the decree or formal order in the appeal is a fatal defect and this appeal is therefore rendered incompetent and struck out.

2. An application for extension of time to serve record of appeal is only granted where the applicant satisfies the court that there is sufficient reason to do so; in this case the applicant has not so satisfied the court.

3. Application of customary law in accordance with Section 3(2) of the Judicature Act (Cap 8) is subject to the customary law not being inconsistent with any written law.

4. Matters concerning custody of infants are governed by Section 17 the Guardianship of Infants Act (Cap 144) which supersedes the relevant African custom.

5. In matters relating to children the law enjoins the courts to the child and give welfare of the child first and paramount consideration.

Appeal struck out as incompetent.

Cases

Wambwa v Okumu [1970] EA 578

Statutes

1. Judicature Act (Cap 8) Section 3(2)

2. Appellate Jurisdiction Act (Cap 9) Court of Appeal Rules 76(1), 87(1), 4, 49(1) & 85(1)(h)

3. Guardianship of Infants Act (Cap 144) Section 17

Advocates

LR Chalalu Esq for Appellant

AYA Jiwaji & Jiwaji for Respondent

Tuneja v Republic

Court of Appeal, at Mombasa May 14, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 20 of 1981

Criminal Law - carrying on business of a radio dealer without a licence - definition of a dealer according to the Broadcast Receiving Apparatus Act Cap 224.

The appellant was a dealer in motor vehicles. He sold a secondhand motor vehicle with a factory fitted radio. He was charged with carrying on business as a radio dealer without a valid dealers licence contrary to Section 5(1) of the Broadcast Receiving (Apparatus) Act Cap 224.

The appellant has appealed against the decision of the judge, that the definition of a dealer in the Act did not exclude secondhand radio sets or cars with factory fitted radios.

Held :

1. The test of a dealer is if the person ordinarily deals in the article, the appellant was a dealer in second hand motor vehicles and the radio set was only incidentally included as one of the many items in the car. The Act is a revenue measure and must be strictly construed.

2. The appellant did not deal radio sets without a dealers licence as stated in the particulars of the offence.

Appeal allowed, order made by judge quashed and the magistrates order of acquittal restored.

Cases

1. Raino v Police [1963] NZLR 702 & 703

2. Chadburn & son v Leeds Corporation, 20 P and CR 241, 1967-1970 English and Empire Digest, 980

Statutes

Broadcast & Receiving (Apparatus) Act Cap 224 Section 5(1)

Musyoki v Republic

Court of Appeal, at Mombasa May 14, 1981

Madan, Law & Miller JJA

Criminal Appeal No 24 of 1981

Criminal Law - defilement of a girl below fourteen years - admission by accused that girl was eleven years old – necessity of production of medical certificate in the light of this admission - knowledge of mitigating circumstances by the prosecution - failure by the prosecution to tender evidence which would have affected sentence.

The appellant pleaded guilty to a charge of defilement of a girl under age fourteen contrary to see 145 (1) of the penal code, and was sentenced to four years imprisonment with hard labour and fifteen strokes.

His appeal against the sentence was dismissed by the High Court. At appeal he produced a letter written to him by the girl who he allegedly defiled. The letter showed that the girl was friendly and encouraged the appellant.

This letter was known to the prosecution and was not tendered as evidence in the lower court.

Held :

1. Once it was admitted by the accused that the girl was eleven, production of the medical and birth certificate to support the allegation that she was under 14 was unnecessary.

2. The romantic letter by the girl to the appellant should have been produced, as this would have guided the court in sentencing, failure to produce it by the prosecution caused an error of principle.

3. There was error in principle in sentencing, the error can only be corrected by reducing the sentence; sentence is accordingly reduced.

Appeal allowed.

Cases

No case referred to.

Statutes

Penal Code (Cap 63) Section 145(1)

Advocates

Mr Gatonye for Appellant

EA Oil Refineries Ltd v Republic

Court of Appeal, at Mombasa May 14, 1981

Madan, Law & Potter JJA

Criminal Appeal No 23 of 1981

Negligence - duty of care - statutory duty as distinct from common law duty - whether breach of the statutory duty amounts to breach of the common law duty.

Interpretation - statutory provision - whether court can add to a statutory obligation a qualification not expressly provided for by the legislature.

Criminal Law - causing death of a workman in contravention of the Factories Act Cap 514 Sections 53 and 75 - failure to provide safety equipment - employer’s duty provide safe working conditions - safety appliance available but its use prohibited.

The appellant was convicted by the magistrate court of causing death of a workman through contravention of Sections 75 and 53 of the Factories Act Cap 514. The conviction was upheld by the High Court. On its second appeal to the Court of Appeal, the question before the court was whether he was employed in any process involving exposure to any injurious substances and whether suitable breathing apparatus was provided and maintained for use of the employee.

1. For the purposes of factory legislation, the question as to whether a machine or structure is dangerous is the test of foreseeability. The magistrate applied the correct test in that there was always a possibility of a leak and therefore the appellant owed a duty to the deceased under Section 53 and 75.

2. A safety appliance is not deemed to be provided if its use is prohibited.

3. The appellants complied with Section 53 but for the prohibition.

Appeal dismissed.

Cases

1. Kanji & Kanji v Republic [1961] EA 411

2. Close v Steel Corporation of Wales [1962] AC 367

3. Bux v Slough Metals Ltd [1974] 1 All ER 262

4. Norris v Syndie Manufacturing Co [1952] 2 QB 135

5. Murray v Schwachman Ltd [1938] 1 KB 130

6. London and North Easter Railway Co v Berriman

Statutes

Factories Act (Cap 514) Sections 75 and 53

Advocates

Mr Khanna for Appellant

Mr Harwood for Respondent

Lalji v Toka

Court of Appeal, at Mombasa February 3, 1981

Madan, Law JJA & Simpson Ag JA

Civil Appeal No 46 of 1980

Negligence - damages - quantum of damages - assessment of - basis of - factors to be taken into consideration when awarding special and general damages - personal injuries - loss of present and future earnings - standard of proof in a claim for earnings, profits and earning power - regard to effects of inflation - when can quantum of damages be said to be manifestly inadequate so as to be deemed to be erroneous estimates - factors to be taken into account when awarding special and general damages - assessment of loss of present and future earnings.

The appellant who was a passenger in one of two vehicles involved in a road accident sustained serious injuries and sued the drivers and owners of the two vehicles for damages arising from their negligent conduct leading to the road accident. The High Court found the drivers negligent and awarded the appellant both special and general damages. Not satisfied, the appellant appeals on quantum of damages arguing that they are so low as to form an entirely erroneous estimate.

Held :

1. In all actions for damages, it is for the plaintiff to prove damage. The plaintiff must produce conclusive particulars to prove the loss of salary, profits and earning power to support a claim for damages. Where such loss cannot be quantified on the basis of material before the court a reasonable and proper figure of compensation will have to be set and added to the general damages.

2. That having regard to the effects of inflation, the general damages awarded to appellant were inadequate.

3. Trial court award of Kshs 75,000 made in favour of the appellant is set aside and substituted with an award of Kshs 175,000.

Appeal dismissed on special damages/Appeal allowed on general damages.

Cases

1. Shah v Kamau (Nairobi cc 289 of 1970)

2. Cooke v Maquel and others (Mombasa Civil Case No 250 of 1973)

3. Bonham-Carter v Hyde Park Hotel Ltd [1948] 64 T & R 177

4. Ashcroft v Curtin [1971] 3 All ER 1208

Statutes

No statute referred to.

Advocates

Mr Dhanji for Appellants