Patrick Ndungu Mathai v Republic

High Court, at Nairobi December 14, 1983

Todd J

Criminal Appeal No 731 of 1983

Criminal law - stealing - contrary to section 306(a) of the Penal Code (cap 63) - recent possession of stolen property - when recent possession may raise presumption of theft - Penal Code (cap 63) section 306(a).

Sentencing - severity of sentence - offence of store-breaking and stealing goods - factors to be considered in sentencing - value of goods stolen not considered in sentencing - sentence of four years’ imprisonment with six strokes of corporal punishment-whether sentence manifestly excessive.

The appellant had been charged with another with the offence of store breaking and stealing contrary to section 306(a) of the Penal Code. There was an alternative charge of handling stolen property contrary to section 322(1) of the Penal Code. The appellant was convicted of store breaking and stealing as charged while his co-accused was acquitted. He was accordingly sentenced to four years’ imprisonment with six strokes. He appealed against both conviction and sentence.

Held:

1. Where an accused person is found in possession of recently stolen property, the doctrine of recent possession may be applied. In the absence of an explanation by the accused accounting for his possession of the goods, a presumption arises that he was either the thief or the receiver (R v Hassani s/o Mohamed (1948) 15 EACA 121).

2. In sentencing, the value of the goods must be taken into account. In this case, the value of the stolen goods was very low making the sentence manifestly excessive.

Appeal against conviction dismissed, appeal against sentence allowed.

Cases

R v Hassani s/o Mohamed (1948) 15 EACA 121

Statutes

Penal Code (cap 63) sections 306(a), 322(1)

Advocates

CW Gatonye for Respondent

Matheka v Republic

High Court, at Nairobi December 14, 1983

Todd J

Criminal Appeal No 531 of 1981

Evidence - accomplice evidence - meaning of - nature of - sufficiency of accomplice evidence - whether such evidence can be relied on to convict joint offender - the need for corroboration by independent witness – when corroboration is required.

The appellant was charged with two others with stealing a cow contrary to section 275 of the Penal Code (cap 63). The appellant was convicted after trial and sentenced to three years’ imprisonment, being the maximum sentence that can be imposed under section 275. The other two were acquitted.

The trial magistrate had heavily relied on the evidence of one of the coaccused in convicting the accused person. The appellant appealed to the High Court. According to the appellate judge, it was not clear how the coaccused came to know what he purported to testify to, and that his evidence was in need of corroboration.

Held:

1. Evidence given by a co-accused person against another should only be considered if it is evaluated and found believable and if it is corroborated by independent evidence pointing to the guilt of the accused and also if it implicates the person giving it (R v Hamisi bin Saidi & Another (1942) 10 EACA 50).

2. When one or more of jointly accused persons makes a confession which affects the maker and the other co-accused it, is accomplice evidence.

3. The court may take accomplice evidence into consideration against all the accused persons including the giver of the evidence, provided that the evidence by itself would be sufficient to justify the conviction of the giver for the offence charged.

Appeal allowed.

Cases

R v Hamisi bin Saidi & Another (1942) 10 EACA 50

Statutes

Penal Code (cap 63) section 275

Advocates

CW Gatonye for Respondent

Omboko v Republic

Court of Appeal, at Kisumu December 9, 1983

Hancox JA, Chesoni & Platt Ag JJA

Criminal Appeal No 130 of 1983

Appeal - criminal appeal - second appeal - concurrent findings of fact of two lower courts - effect on second appeal - matters which may be considered on second appeal - whether length of sentence a matter for consideration on second appeal.

Sale of goods - seized goods - goods seized under Customs and Excise Act (cap 472) - sale by private treaty - conditions under which such goods can be sold by private treaty - Customs and Excise Act (cap 472) section 34 - stolen goods - goods sold to innocent purchaser - whether such goods to be restored to original owner or to purchaser where offender has been prosecuted - Sale of Goods Act (cap 31) section 25(1) - Criminal Procedure Code (cap 75) section 178.

Criminal law - theft of goods - goods seized and held under the Customs and Excise Act (cap 472) section 34 - status of such goods upon conviction of offender - whether such goods can be sold by private treaty – whether sale of such goods to an innocent purchaser valid.

The appellant was employed within the Public Service as a warehouse keeper. He was charged with fraudulent false accounting under section 280 of the Penal Code in relation to the theft of goods which had been seized and stored by the Customs and Excise Department. The appellant was convicted in a magistrate’s court and his appeal to the High Court was unsuccessful. The concurrent findings of the two courts had been that the appellant, along with other accomplices, had arranged for the private sale of the goods to a Mr Patel and omitted to make the appropriate entries in the warehouse seizure register in relation to those goods. Mr Patel, whose evidence was also treated as that of an accomplice, had been given an official receipt for only part of the agreed price, which was below the market value of the goods. Soon after the dismissal of the appellant’s second appeal, an application was made in the case before the trial magistrate for the release of the goods to Mr Patel. The magistrate allowed the application, holding that the goods had been purchased by Mr Patel.

Among the issues to be decided by the Court of Appeal on the appellant’s second appeal was whether this development affected the findings of fact against the appellant and hence his conviction. The validity of the magistrate’s order on the application, however, was not directly put before the court.

Held:

1. Where stolen goods have been sold to an innocent purchaser and the offender prosecuted and convicted, section 25(1) of the Sale of Goods Act (cap 31) and section 178 of the Criminal Procedure Code (cap 75) permit the restitution of those goods to their original owner and not to the person who had purchased them. The property in the goods remained in the government throughout and the subsequent release of the goods to the purchaser by order of the court, which was in any case incorrect, did not affect the position of the appellants.

2. A sale by private treaty of seized goods under the Customs & Excise Act (cap 472) is permitted only if:

a) the goods are of a perishable nature, or animals; and

b) it is done with the authority of the Commissioner of Customs. As none of these conditions had been satisfied, the appellant had no power to make the sale.

3. As a general rule, the Court of Appeal sitting on a second appeal will not disturb the concurrent findings of fact of two lower courts.

4. The length of a sentence is not a matter that may be considered by the Court of Appeal on a second appeal.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Sale of Goods Act (cap 31) section 25(1)

2. Penal Code (cap 63) section 280

3. Criminal Procedure Code (cap 75) section 178(1), (3), (4)

4. Customs and Excise Act (cap 472) section 34

Advocates

J Ndegwa for Respondent

Mwai v Kenya Tourist Development Corporation

Court of Appeal, at Kisumu

December 8, 1983

Kneller, Hancox JJA & Platt Ag JA

Civil Appeal No 58 of 1983

Agency - principal and agent - ratification - how principal bound by acts of agent-whether act by person not agent capable of ratification-when undisclosed principal bound by acts of agent.

Pleadings - issues - unpleaded issue - whether such issue can be a matter before court - claim against respondent for service rendered to third party - no agency pleaded between respondent and third party – whether agency an issue in the suit.

The appellant sued the respondent in a senior resident magistrate’s court fro payment for delivery of soil to a certain hotel owned by a company in which the respondent was a shareholder. The soil had been ordered for by the hotel’s manager, a Mr Oluoch, who referred the appellant to the respondent for payment. It appeared that the appellant had been led to believe that the respondent would pay for the delivery by certain correspondence the purport of which was that the respondent would be prepared to entertain the claim for payment if satisfactory evidence of the validity of the appellant’s claim, in particular of the requisition order, was forthcoming.

The respondent, in its defence, denied that (a) it ordered or requested the appellant to supply the soil; (b) that it had received the soil; or (c) that any service or work had been done.

Both the trial magistrate and the learned judge on the first appeal found in favour of the appellant that the delivery had actually been made. The magistrate, in addition, found that the hotel manager (Mr Oluoch) was the agent of the respondent acting within the scope of his ostensible authority in ordering the soil. This finding was reversed by the judge on appeal who held that the representations by Mr Oluoch did not amount to the evidence of agency and neither was there a holding out of such agency by the corporation and thus the corporation was not liable to pay. The appellant appealed against the decision.

Held:

1. The matter of agency was not an issue in the suit as the appellant had not specifically pleaded it in the plaint and even if it had been, it was not possible to establish and prove as the contract was oral and the appellant did not give evidence.

2. The appellant was issued with instructions by an agent of the hotel, a separate entity from the respondent, who could not be said to have been acting for the respondent. But even if he were, it would be an undisclosed principal, meaning that the actions had to be effectively within the scope of his actual authority, which was not proved, and neither was any implied authority or agency of necessity(Keighley, Maxsted & Co v Durant [1901] AC 240 at p 244).

3. Though the correspondence between the corporation and the appellant may have led the appellant to believe that the corporation might be prepared to pay, its conduct could not operate to ratify something which was not capable of ratification, namely, orders by the manager employed by the managing agents of the hotel which was not the respondent at all but a separate entity. There were no underlying or past arrangements upon which ratification could operate.

4. There was no general connection between the respondent and the provision of the soil. It was the responsibility of the entity which owned the hotel in question and which would have been the proper party to sue.

Appeal dismissed with costs to the respondent.

Cases

Keighley, Maxsted & Co v Durant [1901] AC 240

Statutes

No statute referred to.

Advocates

Gumba for Appellant

James Nyanamba v Republic

Court of Appeal, at Kisumu December 8, 1983

Kneller JA, Chesoni & Nyarangi Ag JJA

Criminal Appeal No 121 of 1983

Evidence - corroboration - sexual offences - uncorroborated evidence of complainant - how court should deal with such evidence - direction that court should give before acting on such evidence - failure of court to warn itself of danger of acting on such evidence - conviction made on such evidence - whether failure to warn itself may render conviction unsound - failure of court to consider evidence - court considering only prosecution evidence - defence evidence rejected as untrue without giving reasons - how court should consider evidence.

Judgment - contents of - form of - essential contents of a judgment – what a judgment on conviction must contain - Criminal Procedure Code (cap 75) section 169(1), (2) - effect of failure to comply with section 169.

The appellant was charged, jointly with another person, with two counts of robbery contrary to section 296(1) of the Penal Code (cap 63) and each accused on his own, with one count of indecent assault on a female contrary to section 144(1) of the Penal Code. In respect of one of the counts of robbery, no evidence of force or the threat of it was given and in respect of the indecent assault charge, there was neither medical evidence nor any witness testimony by either complainant on what had happened to the other. The appellant was convicted and sentenced and as his first appeal was unsuccessful, he appealed further to the Court of Appeal.

Held:

1. Sexual offences require a careful direction by the trial court that it is unsafe to act on the evidence of a complainant without corroboration but where the court is satisfied that the evidence is reliable, then after paying attention to the warning, it may nevertheless convict the accused.

2. The failure by the court to warn itself of the danger of convicting on the complaint’s evidence without corroboration rendered the conviction unsound (R v Cherop Kinei (1936) 3 EACA 124).

3. The appellant in his defence had put forward a defence of alibi which was not considered by both the trial magistrate and the first appellate court and as the Court of Appel could not tell what the lower courts’ finding would have been if they had considered it, this was more reason why the apppellant’s appeal would succeed.

4. According to section 169(1) of the Criminal Procedure Code (cap 75) every judgment must contain, in the case of a conviction, the points for determination, the decision thereon and the reasons for the decision.

5. The failure by the court to give reasons for rejecting the defence as false or look at the evidence as a whole was improper.

6. Section 169(2) of the Criminal Procedure Code requires that in the case of a conviction, the judgment must specify the offence, the section of the Penal Code or other law under which the accused is convicted.

The omission to comply with section 169(2) in this case occasioned an injustice which could not be cured under section 382 of the Criminal Procedure Code.

Appeal allowed.

Cases

1. R v Cherop Kinei (1936) 3 EACA 124

2. Okale Okethi and Others v Republic [1965] EA 555

Statutes

1. Criminal Procedure Code (cap 75) sections 169(1), (2); 382

2. Penal Code (cap 63) sections 144 (1), 296(1)

Mwau v Principal Immigration Officer

High Court, at Nairobi

December 8, 1983

Simpson CJ, Sachdeva & Gachuhi JJ

Miscellaneous Civil Case No 299 of 1983

Judicial Review – mandamus – order of – against executive officers of government – when order will not be issued – where officer is an inferior or ministerial officer bound by orders of a competent authority – where officer is not persona designata – whether such officer may be compelled to do something which is his duty in that capacity.

Immigration law – passport – definition of – issue and withdrawal of passport – whether a prerogative of the President – Principal Immigration Officer withdrawing passport without giving reasons-whether Officer under statutory or legal duty to issue and return passports – whether mandamus may issue to compel Officer to return passport – Immigration Act (cap 172) section 10(2).

President – prerogatives of – issue, withdrawal and return of passports – whether a prerogative of the President – whether mandamus may issue to compel Principal Immigration Officer to return withdrawn passport - Immigration Act (cap 172) section 10(2).

Passports - see Immigration law.

The applicant, a citizen of Kenya by birth and the bearer of a Kenyan passport, on February 25, 1983 had his passport withdrawn by the Assistant Immigration Officer who was acting on behalf of the respondent. When the applicant wrote to the respondent demanding the return of his passport in order for him to leave Kenya on a business trip, the respondent replied to him that the reasons for the withdrawal of his passport were well-known to him and that the passport would remain withdrawn until further notice.

The applicant, after obtaining leave to do so, filed an application for an order of mandamus to direct the respondent to return his passport.

Held:

1. In Kenya, a passport is a document issued in the name of the President on the responsibility of a Passport Officer to a named individual intended to be presented to the governments of foreign nations and to be used for the individual’s protection as a Kenyan citizen in foreign countries, and it depends for its validity upon the fact that the Government in an official document vouches the respectability of the person named, it is not a document issued for the purpose of enabling a citizen to leave or enter Kenya although in practice it coincidentally fulfils that function.  

2. In the absence of any statutory provision regulating the issue of passports, the issue and withdrawal of passports is the prerogative of the President. It is a matter entirely within the discretion of the Minister subject to the directions of the President and being purely in the exercise of the Presidential prerogative, it is not subject to judicial review.

3. The order of mandamus will not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority, to compel him to do something which is part of his duty in that capacity. The courts are reluctant to issue a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted.

4. There is no statutory or legal duty laid upon the Principal Immigration Officer as persona designate to issue or return passports and in the performance of such non-statutory functions, he acts in accordance with instructions of the Minister under section 10(2) of the Immigration Act (cap 172). An order of mandamus does not therefore lie to compel him to return the applicant’s passport.

Application for mandamus refused.

Cases

1. Shah v Attorney-General of Uganda (No 3) 1976 EA 543

2. Rex v Brailsford & Another (1905) 2 KBD 730

3. Republic v Director General of East African Railways Corporation ex parte Kaggwa 1977 KLR 194

Texts

1. De Smith, S.A. Constitutional and Administrative Law

2. De Smith, S.A. et al (1968) Judicial Review of Administrative Action 2nd Edn p 462

3. Hailsham, Lord et al. (Eds) (1975) Halsbury’s Laws of England London: Butterworths 4th Edn p 127

4. Pram’s Law of Writs in India, England and America 2nd Edn p 385

Statutes

1. Constitution of Kenya section 81(1), (3)

2. Immigration Act (cap 172)

Advocates

Mwau v Principal Immigration Officer

High Court, at Nairobi

December 8, 1983

Simpson CJ, Sachdeva & Gachuhi JJ

Miscellaneous Civil Case No 299 of 1983

Judicial Review – mandamus – order of – against executive officers of government – when order will not be issued – where officer is an inferior or ministerial officer bound by orders of a competent authority – where officer is not persona designata – whether such officer may be compelled to do something which is his duty in that capacity.

Immigration law – passport – definition of – issue and withdrawal of passport – whether a prerogative of the President – Principal Immigration Officer withdrawing passport without giving reasons-whether Officer under statutory or legal duty to issue and return passports – whether mandamus may issue to compel Officer to return passport – Immigration Act (cap 172) section 10(2).

President – prerogatives of – issue, withdrawal and return of passports – whether a prerogative of the President – whether mandamus may issue to compel Principal Immigration Officer to return withdrawn passport - Immigration Act (cap 172) section 10(2).

Passports - see Immigration law.

The applicant, a citizen of Kenya by birth and the bearer of a Kenyan passport, on February 25, 1983 had his passport withdrawn by the Assistant Immigration Officer who was acting on behalf of the respondent. When the applicant wrote to the respondent demanding the return of his passport in order for him to leave Kenya on a business trip, the respondent replied to him that the reasons for the withdrawal of his passport were well-known to him and that the passport would remain withdrawn until further notice.

The applicant, after obtaining leave to do so, filed an application for an order of mandamus to direct the respondent to return his passport.

Held:

1. In Kenya, a passport is a document issued in the name of the President on the responsibility of a Passport Officer to a named individual intended to be presented to the governments of foreign nations and to be used for the individual’s protection as a Kenyan citizen in foreign countries, and it depends for its validity upon the fact that the Government in an official document vouches the respectability of the person named, it is not a document issued for the purpose of enabling a citizen to leave or enter Kenya although in practice it coincidentally fulfils that function.  

2. In the absence of any statutory provision regulating the issue of passports, the issue and withdrawal of passports is the prerogative of the President. It is a matter entirely within the discretion of the Minister subject to the directions of the President and being purely in the exercise of the Presidential prerogative, it is not subject to judicial review.

3. The order of mandamus will not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority, to compel him to do something which is part of his duty in that capacity. The courts are reluctant to issue a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted.

4. There is no statutory or legal duty laid upon the Principal Immigration Officer as persona designate to issue or return passports and in the performance of such non-statutory functions, he acts in accordance with instructions of the Minister under section 10(2) of the Immigration Act (cap 172). An order of mandamus does not therefore lie to compel him to return the applicant’s passport.

Application for mandamus refused.

Cases

1. Shah v Attorney-General of Uganda (No 3) 1976 EA 543

2. Rex v Brailsford & Another (1905) 2 KBD 730

3. Republic v Director General of East African Railways Corporation ex parte Kaggwa 1977 KLR 194

Texts

1. De Smith, S.A. Constitutional and Administrative Law

2. De Smith, S.A. et al (1968) Judicial Review of Administrative Action 2nd Edn p 462

3. Hailsham, Lord et al. (Eds) (1975) Halsbury’s Laws of England London: Butterworths 4th Edn p 127

4. Pram’s Law of Writs in India, England and America 2nd Edn p 385

Statutes

1. Constitution of Kenya section 81(1), (3)

2. Immigration Act (cap 172)

Advocates

Mr. Kinyanjui, with Mr. Wambeu for the applicant

Rotich v Republic

Court of Appeal, at Kisumu December 6, 1983

Hancox JA, Chesoni & Platt Ag JJA

Criminal Appeal No 126 of 1983

Appeal - second appeal - matters with which a court is concerned in such appeal- whether severity of sentence a matter of law - whether court has jurisdiction to enter into the question of sentence on second appeal.

Pleas - change of plea - plea of guilty - statement of accused in mitigation that he committed the offence under influence of alcohol – whether accused's statement could detract from unequivocal nature of plea - interpretation of such a plea.

Sentencing - legality of sentence - for offence of stock theft - sentence not stated to include hard labour - sentence including order for police supervision - appellant a first offender - whether sentence containing an error of law - proper sentence.

The appellant was convicted of the offence of stealing after he had admitted the facts stated by the prosecutor and he was sentenced to seven years' imprisonment, corporal punishment and a five-year reporting order. The appellant's appeal to the High Court was dismissed and he appealed to the Court of Appeal stating, inter alia, that he had committed the offence while under the influence of alcohol.

Held:

1. Under section 361(1) of the Criminal Procedure Code (cap 75) an appeal lies to the Court of Appeal on a matter of law, and severity of sentence is therein stated not to be a matter of law and the court therefore had no jurisdiction to enter into the question of sentence.

2. The appellant had validly pleaded guilty to the offence and even though he said he had committed it while under the influence of alcohol that did not detract from the unequivocal nature of the plea.

3. The appellant's sentence contained an error of law in that it was not expressed to have been imprisonment with hard labour as required by section 278 of the Penal Code (cap 63).

4. Another error on the sentence was that it made the appellant liable to a police supervision order whereas he was a first offender.

Appeal dismissed.

Cases

Nashom Marenya v Republic Criminal Appeal 23 of 1982 (unreported)

Statutes

1. Criminal Procedure Code (cap 75) section 361(1)

2. Penal Code (cap 63) section 278