Gitau v Attorney General

High Court, at Nairobi December 20, 1982

Trainor J

Civil Case No 1511 of 1979

Tort – malicious prosecution - matters that a claimant should establish to prove malicious prosecution - onus of showing that the defendant had wrongfully set the law in motion against the claimant - meaning of “setting the law in motion” against a person.

Tort – false imprisonment - plaintiff arrested and detained by police officers without justification - plaintiff held incommunicado for 30 hours at police station - whether plaintiff entitled to general and exemplary damages - measure of damages.

Damages - general damages - exemplary damages - for false imprisonment - plaintiff wrongfully arrested and detained by police for 30 hours - measure of damages.

The plaintiff commenced proceedings against the Attorney General on behalf of the Police Department, for assault, battery, false imprisonment, and malicious prosecution.

The plaintiff had been arrested and charged with the offence of being drunk and disorderly to which he had pleaded not guilty and was admitted to bail.

When the case came up for trial, the learned magistrate dismissed the same without calling on the defence.

It was the plaintiff’s complaint that during the time he was in custody he had been mistreated and denied an opportunity to contact his father and that it was his wife who had traced him after making enquiries.

An alcohol test on the plaintiff had given a negative result. Evidence was however given by an inspector of police in charge of Ngong Police Station where the plaintiff had been held to the effect that when he came on duty he was briefed that the plaintiff had been arrested for being drunk and disorderly and being in charge of a motor car while under the influence of alcohol. He therefore ordered that plaintiff should be charged. He signed the charge sheet and he was satisfied that the plaintiff was properly charged.

Held:

1. To succeed on a claim for malicious prosecution the plaintiff must first establish that the defendant or his agent set the law in motion against him on a criminal charge.

2. Setting the law in motion in this context has not the meaning frequently attributed to it of having a police officer take action such as effecting arrest. It means being actively instrumental in causing a person with some judicial authority to take an action that involves the plaintiff in a criminal prosecution. Secondly, the person who sets the law in motion must have done so without reasonable or probable cause.

3. The officer in charge of the police station was the person who had set the law in motion in this case. However, the plaintiff had not established that the police officer was not acting out of a belief of what had been reported to him or that he had acted recklessly or indifferently as to whether there were genuine grounds for prosecuting the plaintiff.

4. The plaintiff had failed to discharge the onus of proving that the setting of the law in motion by the officer had been without reasonable or probable cause. His claim for malicious prosecution fails.

5. The behaviour of the two police officers who wrongfully assaulted, battered and falsely imprisoned the plaintiff was oppressive, arbitrary and unconstitutional.

6. For the false imprisonment, the plaintiff was entitled to Kshs 25,000 in damges and Kshs 10,000 as exemplary damages.

Claim for malicious prosecution dismissed

Cases

1. Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367; [1964] 2 WLR 269

2. Cassell & Co v Broome [1972] AC 1027; [1972] 2 WLR 645; [1972] 1 All ER 801; 116 SJ 199

Statutes

No statutes referred.

Duffield & others v Kenya Railways

High Court, at Nairobi

December 3, 1982

Hancox J

Civil Case No 2598 of 1980

Negligence - road accident - accident involving motor vehicle and train at railway crossing - absence of cross boards signs - road sign in language not understood by plaintiff - speeding by plaintiff - plaintiff pleaded guilty to offence imputing negligence - proof of contributory negligence - breach of duty of care - whether defendant breached statutory duty in contravention of the Kenya Railways Act (Cap 397) Section 8(2)(b).

Damages - quantum of damages - personal injury - measure of general damages.

Evidence - plea of guilty at accident scene - whether court can go into reasons why one pleaded guilty - Evidence Act (Cap 80) Section 47A.

 The plaintiff’s vehicle collided with a locomotive engine owned by the defendant at a railway crossing. The plaintiff suffered minor injuries, was taken unconscious and his vehicle was completely wrecked. He sued the defendant for general and special damages for negligence and for breach of its statutory duty to ensure safety. On the side of the road from which the plaintiff’s vehicle had approached the railway crossing were several rumble strips and a ‘slow’ sign written in Swahili, which the plaintiff, being new to the country, did not understand. There had been no railway crossing boards at the time of the accident and the plaintiff, who was new to the road, had been speeding. The plaintiff had pleaded guilty to the offence connoting a degree of lack of care and it was argued that he had so pleaded merely to save trouble and expense.

Held:

1. The plaintiff, by pleading guilty to a charge under Section 67(j) of The Kenya Railways Act (Cap 397), accepted a certain degree of lack of care similar to that in the Traffic Act. The fact that he pleaded guilty to save time and expense cannot permit the court to pierce the plea of guilty, as to do so would be to qualify that which the legislature has enacted should be conclusive under the Evidence Act (Cap 80) Section 47A.
2. The driving of a train engine involves duties and obligations different from those involved in driving a motor-vehicle. In cases of crossings over a pubic road, the railway authorities have a duty to ensure the safe operation of the railway.
3. The defendants had breached both their statutory duty and the duty of care in failing to provide adequate signs well in advance of the railway crossing.
4. The train driver was not negligent.
5. The plaintiff’s and the defendant’s apportionment of blame for the accident is 45% and 55% respectively. Judgment entered for the plaintiff for Kshs 72,230.40 being 55% of the total award of Kshs 131,328 in special and general damages, plus interest and costs.

Judgment for the plaintiff.

Cases

1. Railways Corporation v EA Road Services Ltd [1975] EA 128 Referred
2. Queens Cleaners and Dyers Ltd v East African Community and Others [1972] EA 229 Applied & Approved
3. Robinson v Oluoch [1971] EA 376 Applied
4. East African Railways & Harbours v Lalani [1970] EA 443 Approved & Applied
5. Lloyds Bank Ltd and Another v Railway Executive [1952] 1 All ER 1248 Applied & Approved
6. Lloyds Bank Ltd v British Transport Commission and Another [1956] 3 All ER 291 Distinguished
7. Knight v Great Western Railway Company [1942] 2All ER 286 Referred
8. James v The Commissioner of Transport [1958] EA 313 Distinguished
9. Trznadel v British Transport Commission [1957] 3 All ER 196 Referred
10. Osawa v Barua Estate, High Court Civil Case No 2549 of 1976 (unreported) Referred
11. Railway Corporation v Wairegi, High Court Civil Case No 420 of 1970 (unreported) Referred
12. Burrows v Southern Railway (1933) setout in Knight v Great Western Railway Company (above) Referred

Statutes

1. Evidence Act (Cap 80) Section 47A
2. Traffic Act (Cap 403)
3. Kenya Railways Corporation Act (Cap 397) Sections 8(2)(b), 67(j)
4. Traffic Signs Rules, 1975 (Cap 403 Sub Leg) (Sch) p 762

Advocates

Mr Harris for Plaintiff

Mr Marende for Defendant

Kechel v Republic

High Court, at Nairobi

December 3, 1982

Owuor Ag J

Criminal Appeals Nos 753, 754 & 755 of 1982 (consolidated)

(Appeal from the Resident Magistrate’s court at Kericho)

Criminal law – offences under the Price Control Act (cap 504) – power to order disposal of goods being the subject of criminal charges – procedure thereof – provisions of section 24 of the Price Control Act.

Evidence – exhibits – disposal of exhibits before production in court – proper procedure – requirement of identification by court before disposal.

The appellants were charged with offences under the Price Control Act (cap 504) sections 27(1)(c), 30(1) and 30(2). After the charge was read to the accused persons, the court ordered that the subject goods be sold and the money deposited with the police for safekeeping. The trial thereafter proceeded and the appellants were convicted. They appealed on the grounds that the magistrate erred in law in convicting all the accused of the alleged offences without the goods in respect of which the offences were alleged, having been properly before the court.

Held:

1. The court is allowed under section 24 of the Price Control Act (cap 504) to order that seized goods be sold and/or disposed of on grounds that they are perishable or that the owner would be prejudiced if not disposed of.
2. There was nothing on the record to show that the goods were ever seen by the court, produced as exhibits or merely marked for identificaton before the court as evidence upon which the defence could examine the prosecution witnesses.
3. The seized goods should not have been disposed of before they were exhibited.
4. The omission to take evidence of the identity of the goods being the subject matter of the charge against the appellant was fatal and the prosecution cannot be said to have proved its case beyond reasonable doubt.

 Cases

No cases referred to.

Statutes

1. Price Control Act (cap 504) (Revised Edition 1972 (1962)) sections 24, 27(1)(c), 30(1), 30(2)

Advocates

1. Mr. Makecha for the Appellants
2. Mr. Kinyajui for the Republic

Francis Mbugua Maagu v Gaspar Waweru

High Court, at Nairobi

November 29, 1982

Chesoni J

Civil Suit No 3534 of 1982

Customary law - Kikuyu customs - burial dispute - death of husband during marriage-no remarriage by widow after husband’s death - no return of dowry to deceased husband’s parents - whether marriage dissolved by death - effect of christian marriage among Africans - whether relationships of affinity survive husband’s death - whether relationship of affinity severed - whether deceased husband’s family entitled to bury deceased wife - African Christian Marriage and Divorce Act (Cap 151).

Marriage - dissolution - whether African Christian marriages are dissolved by death - effect of Christian marriage among Africans - Kikuyu customary law - relationships of affinity - how relationships of affinity are created and severed - African Christian Marriage and Divorce Act (Cap 151).

Burial dispute - Kikuyu Customary Law and African Christian Marriage Act, Cap 151 - which law applies.

The plaintiff was the father of one Zakaria Kamau, who had been married to one Ellen Wambui, a daughter of the defendant, on August 5, 1968 under the African Christian Marriage and Divorce Act (Cap 151). Zakaria died in 1970 during the subsistence of their marriage. Ellen never remarried until her death in 1982, though she bore four sons after her late husband’s death, only one of whom had been fathered by him. A dispute arose between Ellen’s parents and her late husband’s parents as to who was entitled to inter her remains. Some dowry, the amount of which was disputed, had been paid to Ellen’s parents by the parents of her late husband and had not been returned to them. After her husband’s death, Ellen had been trained by her father, the defendant, and lived independently in Mombasa after being employed by the government. She used both the title of “Miss” and her father’s name but also maintained close contact with her late husband’s family. It was contended for the defendant that the death of Ellen’s husband dissolved her marriage in accordance with the Christian marriage vow which stated, inter alia, “until death do us part”.

 It was further argued that Ellen reverted to the status of a single woman upon her husband’s death and she belonged once more to her natural father’s family. It was submitted for the plaintiff that what death parts in marriage is only the physical cohabitation and that death does not automatically dissolve a marriage between two spouses of the Kikuyu ethnic group.

Held:

1. Among Africans, marriage has certain lasting effects which go beyond the effect of a marriage certificate issued under law. Death terminates a marriage for it brings about the physical separation of the spouses but, on the other hand, there are other relationships which are created by marriage and which death does not automatically determine.
2. Some of these relationships of affinity are severed not only by word of mouth but by certain ceremonies like the re-marriage of the widow or her return to her parents accompanied with a return of the dowry to her husband’s parents.
3. The burial of a deceased female person is a matter of the social custom of her people and does not depend on the law under which she was married.
4. When a Kikuyu woman dies and her marriage was never terminated by divorce, or, if her husband predeceased her during their marriage and she did not remarry, or if the affinity relationship was not terminated by return of the dowry (ruracio), she is buried at her husband’s home by his kin.
5. Whether the relationship is severed or not is a question of fact determined with evidence.

Judgment for the plaintiff.

 Cases

1. Mwangi Njoroge Mugwe v James Mwangi Kihara, HC Misc CC No 255 of 1982 (unreported) Applied

 Texts

1. The Holy Bible, Gen 2:24, (Revised Standard Version)
2. J Kenyatta, Facing Mount Kenya: The Tribal Life of the Gikuyu, Mercury Books: London (1961)

Statutes

African Christian Marriage and Divorce Act (Cap 151)

Advocates

Mr Gatuguta for Plaintiff

Mrs Khaminwa for First Defendant

Joseph Munyao Malebe  & 2 others v Republic

 High Court, at Nairobi

November 11, 1982

Muli J

Criminal Appeal No 546, 547 & 548 of 1982

Criminal Practice and Procedure - charge - joinder of charges - misjoinder of persons - misjoinder of offences - joint charge sheet - charges of stealing by servant against three accused - charge alleging different items stolen on separate dates - accused persons not charged jointly as having common intention - no evidence linking accused with offence - accused convicted and sentenced - whether conviction and sentence proper - miscarriage of justice - whether the trial a nullity - whether retrial proper - Penal Code (Cap 63) Section 281.

The three appellants were charged separately on separate counts in one charge sheet with the offence of stealing by servant contrary to Section 281 of the Penal Code (Cap 63). The particulars of the joint charge sheet alleged that the offences were committed on separate dates. The items alleged to have been stolen were different and the appellants were alleged to have stolen them on unknown dates between different months. Moreover, the appellants were not charged jointly as having had a common intention. They were convicted and each sentenced to eight months’ imprisonment. They appealed against their convictions and sentences.

Held:

1. A joint charge against several persons alleged to have committed separate offences on different dates amounts to a misjoinder and such a charge is defective. There should have been a separate charge for each person and separate count for each alleged offence committed on a different date.

2. The misjoinder occasioned prejudice to the appellants because they did not know what charges were against them jointly or separately and when committed. The misjoinder occasioned a failure of justice and being an incurable defect, the trial was a nullity.

3. The trial magistrate’s failure to consider, from the available evidence, that other employees might have been involved in the loss of the stolen property was a misdirection which occasioned a further failure of justice.

4. It would not meet the ends of justice to send the case for fresh charges and retrials when there was no evidence to connect the appellants with the alleged offences.

Appeals allowed.

Cases

No case referred to.

Statutes

Penal Code (Cap 63) Section 281