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

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

Ibrahim Adan v Republic

High Court, at Nairobi November 25, 1983

O’Kubasu J

Criminal Appeals Nos 843 - 930 of 1983

Criminal Practice and Procedure - charge - contents of - charge of unlawful assembly - failure to include information on the species of the offence charged - effect of such failure - whether charge incurably defective for such failure.

Criminal law - unlawful assembly and riot - with intent to commit offence - how offence charged - failure to state the offence intended to be committed in charge - effect of such failure - Penal Code (cap 63) section 78.

The eighty eight appellants were charged with taking part in an unlawful assembly contrary to section 78 of the Penal Code (cap 63). The particulars of the charge, besides the date and area in which the alleged offence was committed, stated only that the appellants “jointly took part in unlawful assembly in that they were found taking part in unlawful meeting”. The appellants, who were convicted and sentenced, appealled against their convictions and sentences. It was submitted on their behalf that the charge was so brief as to disclose no offence and that the defect was fatal.

Held:

1. Where a person is charged with the offence of unlawful assembly, he is entitled to know what species of unlawful assembly he is charged with as he cannot adequately frame his defence if he is not informed of this. The accused person is entitled to have reasonable information of what he is alleged to have done: for instance whether it is alleged that he assembled in a group of idle and disorderly persons, or with the intention of committing assault upon passers-by on the highway, or riotous interference with vehicles or housebreaking or robbery, or rape, or whatever other intention the prosecution will seek to prove (Chandi Bin Khamis Mtumbatu v R [1961] EA 587).

2. The appellants were not informed of what offence the prosecution intended to prove and the charge was incurably defective and fatal to the conviction. Even the evidence on record did not disclose any offence in view of the clear explanation put forward by the appellants.

Appeal allowed.

Cases

Chandi Bin Khamis Mtumbatu v R [1961] EA 587

Statutes

Penal Code (cap 63) section 78(1)

Advocates

MCN Odero for Appellants

FH Nabutete for Respondent