Munguti v Republic

High Court, at Nairobi December 14, 1984

O'Kubasu J

Criminal Appeal No 1815 of 1984

(Appeal from the conviction of the Second Class District Magistrate’s court at Machakos, D Konya Esq and the sentence of the Senior Resident Magistrate at Machakos, L B Ouma Esq)

Criminal Practice and Procedure - plea - change of - accused convicted on plea of guilty - accused seeking to change plea to not guilty before sentencing - change of plea refused - whether refusal to allow change of plea proper.

The appellant was charged before a Second Class District Magistrate’s court with the offences of housebreaking and stealing from a dwelling house contrary to the Penal Code sections 304(1) and 279(b) respectively. When the appellant first appeared for plea-taking, he denied the charge but later, he stated that he wished to change his plea and admit to the charge. On a later day, the facts were narrated to the court and the appellant admitted them to be true and he was convicted. When the appellant was referred to a Senior Resident Magistrate for sentencing, he stated that he wished to change his plea to that of not guilty. The magistrate refused to allow the change of plea and sentenced the appellant. The appellant appealed.

Held:

1. An accused person is entitled to change his plea before sentencing.

2. It was an error by the sentencing magistrate to refuse to accept the appellant’s change of plea.

Cases

Adan v R [1973] EA 445

Statutes

Penal Code (cap 63) sections 279(b), 304(1)

Advocates

Miss LG Mbarire for Respondent

Kihungu v Republic

High Court, at Nairobi December 14, 1984

O’Kubasu J

Criminal Appeal No 1697 of 1983

(Appeal from the Senior Resident Magistrate’s Court at Kiambu, Omondi Tunya Esq)

Evidence - circumstantial evidence - whether such evidence alone is reliable - whether conviction is based on such evidence proper.

The appellant appealed against a sentence of imprisonment for 4 years for the offence of stealing by servant contrary to section 281 of the Penal Code (cap 75). He had been charged before a Senior Resident Magistrate’s court with the offence, the particulars of which were that he stole fuel from a tanker which he was to drive to Rwanda. The tanker was found at the escarpment without its fuel cargo and the appellant was arrested at his home three or so days later. He alleged the truck had an accident and he left the scene in shock and confusion. There was no evidence of spillage where the truck was found in a grove off the road or of the appellant having received any injury or treatment. On appeal, it was submitted for the appellant that there was no evidence that fuel had been loaded into the tanker and that the evidence against him was circumstantial.

Held:

1. Circumstantial evidence is very often the best evidence and it cannot be impugned merely on the ground that it is circumstantial.

2. There was sufficient evidence on record to convict the appellant and his defence was sufficiently considered and rejected.

3. The inculpatory facts were incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis other than the appellant’s guilt.

Appeal dismissed.

Cases

1. R v Taylor Weaver and Donovan (1928) 21 Cr App R 20

2. Tumuheire v Uganda [1967] EA 328

Statutes

Penal Code (cap 63) section 281

Advocates

Mr DM Kinyua for Appellant

Mr J Njongoro for Respondent

Mungai v Republic

Court of Appeal, at Nairobi December 13, 1984

Kneller, Hancox JJA & Nyarangi Ag JA

Criminal Appeal No 84 of 1984

(Appeal from the High Court at Nairobi, Porter J)

Criminal law – murder - offence of - contrary to - Penal Code (cap 63)section 17 - killing arising from use of force in defence of person or property - whether a sufficient factor in reducing offence to manslaughter.

Criminal law – manslaughter - offence of contrary to - Penal Code (cap 63) section 17 - reducing offence of murder to manslaughter – killing arising from use of force in defence of person or property - whether a sufficient factor to reduce offence of murder to manslaughter.

Evidence - hearsay evidence - dying declaration - admissibility of - appellant charged with murder - appellant alleging sudden and violent attack by deceased - statement of deceased to his brother that he had not fought with appellant - absence of other evidence by which to test evidence of appellant - whether statement of deceased admissible as a dying declaration - Evidence Act (cap 80) section 33(a).

The appellant was charged with murder and after his trial, he was found guilty of the lesser offence of manslaughter on the basis of excessive use of force in defence of a person and on the basis also of provocation. He was sentenced to twenty-one months’ imprisonment. At the trial, there had been no evidence to set against the testimony of the appellant and one Christine, who it was alleged had been attacked by the deceased and who the appellant had been endeavouring to protect, as to what had happened save that the deceased had while in hospital made a statement to his brother in which he emphasized that he had not fought with the appellant. The appellant had shot the deceased in the thigh and the police had left him bleeding and unattended for about 45 minutes before taking him to hospital where, again, there was delay in administering a blood transfusion. The deceased died the following day and the cause of death was certified to be cardiac and respiratory failure due to irreversible shock brought on by excessive bleeding due to bullet wounds. The appellant appealed against his conviction.

Held

1. It is a doctrine recognised in East Africa that the excessive use of force in the defence of the person or property, whether or not there is an element of provocation present, may be sufficient for the court to regard the offence not as murder but as manslaughter-R v Ngolaile s/o Lenjaro (1951) 18 EACA 164; R v Shaushi (1951) 18 EACA 198.

2. While there is no rule that excessive force in defence of the person will in all cases lead to a verdict of manslaughter, there are nevertheless instances where that result is a proper one in the circumstances and on the facts of the case being considered-Palmer v Reginam [1971] 1 All ER 1077.

3. The deceased’s statement to his brother in which he emphasized that he had not fought with the appellant was admissible under the Evidence Act (cap 80) section 33(a) as a dying declaration. Nevertheless, the evidence of the appellant and Christine showed that the deceased had attacked both of them.

4. In a moment of unexpected anguish such as, as it was in this case, the sudden and violent attack by one person on another, a person in the situation of the appellant is not in law required to weigh to a nicety the exact measure of the action which it is necessary to take to deter the attack on that other person. The appellant’s actions had not been unreasonable or excessive in the circumstances with which he was faced.

5. The appellant, though not being regularly married to the person who had been attacked, was entitled in law to take reasonable measures to prevent danger to her life and, moreover, he was entitled under the Penal Code section 392 to act to prevent the commission of a felony which was occurring in his presence.

6. (Obiter) A court should select the assessors and should take care not to appear to confirm rather than to select assessors. The trial judge having carried out an inquiry as to the suitability of the persons to be summoned to serve as assessors had not selected the assessors as provided under the Criminal Procedure Code (cap 75) section 297 but had recorded that the assessors “chose themselves”, which was an error.

Appeal allowed.

Cases

1. Ilapala s/o Ibrahim v Reginam (1953) 20 EACA 300

2. Selemani s/o Ussi v Republic [1963] EA 442

3. Palmer v Reginam [1971] 1 All ER 1077

4. Rex v Ngoilale s/o Lenjaro (1951) 18 EACA 164

5. Julius Matendechere s/o Masakho v Reginam (1956) 23 EACA 443

6. The King v Biggin [1920] 14 CAR 87; 1 KB 213; [1918-19] AER 501

7. R v McInnes [1971] 3 All ER 295

8. R v Rose [1984] 15 Cox CC 540; [1982] 2 All ER 536

9. R v Shaushi s/o Miya (1951) 18 EACA 1981

10. Hau s/o Akonaay v R (1954) 21 EACA 276

11. R v Chisam [1963] 47 Cr App R 130

12. R v Duffy [19667] 1 All ER 62

13. Kaluma v Republic [1968] EA 349

14. R v Shannon The Times 19th April, 1980; [1980] Crim LR 438

15. George Karanja Mwangi v Republic Criminal Appeal No 132 of 1983; [1983] KLR 522

16. Kalume wa Tuku alias Saidi v Regina (1954) 21 EACA 201

Texts

1. Butler, T.R.F., Mitchell S.G., (Eds) et al. (1973) Archbold: Criminal Pleading, Evidence and Practice, London: Sweet & Maxwell 38th Edn

2. Hailsham, Lord, et al, (Ed), (1976) Halsbury’s Laws of England, London: Butterworths, 4th Edn para 1179

Statutes

1. Penal Code (cap 63) sections 17, 207, 208, 208(1), 213(a), 241, 244, 392

2. Evidence Act (cap 80) section 33(a)

3. Criminal Procedure Code (cap 75) sections 297, 382

Advocates

Mr BN Georgiadis for Appellant

Mr B Chunga for the Republic

Muniu v Itotia

High Court, at Nairobi December 11, 1984

Cockar J

Civil Application No 1654 of 1984

Family law - husband and wife - ownership of property – husband registered proprietor of premises - husband obtaining charge over premises - exercise of statutory power of sale by chargee over premises - wife’s claim of entitlement to half share of the premises held in trust by husband - whether wife’s occupation of and development of suit premises entitling her to claim of ownership and stoppage sale.

Mortgages and Charges - land - charge - chargee’s statutory power of sale - exercise of - land charged by husband without knowledge of wife - exercise of statutory power of sale by chargee - chargor’s wife claiming entitlement to part of the land held in trust by chargor - whether wife’s

occupation of and development of suit premises entitling her to claim of ownership and stoppage of sale-whether chargee was under obligation to inform chargor’s wife of creation of charge.

The first defendant was registered as the sole proprietor of the suit premises, against the title to which a charge in favour of the second defendants, a finance company, was registered to secure a loan of Kshs. 150,000 advanced by the second defendant to the first defendant. Owing to a failure in the repayment of the loan, the second defendant gave notice of demand the default of which led it to seek to exercise its statutory power of sale by auction of the suit premises.

On the day before the advertised date of sale, the plaintiff, who was the wife of the first defendant, applied ex parte by way of originating summons for a declaration that the first defendant held a half share of the suit premises in trust for her. On the same day, the plaintiff obtained, by way of chamber summons, an ex parte injunction restraining the second defendant from proceeding with the sale.

The chamber summons application came up for hearing inter partes. The plaintiff supported her claim of ownership of half share of the suit premises with an affidavit stating, among other things, that she had contributed half the purchase price but it had been agreed that the suit premises would be registered only in the name of the first defendant, her husband; that she had since been in occupation of the premises; that she had personally developed the premises; that she had no knowledge of the charge over the premises and she had not consented to it and, finally, the second defendant had not made any enquiries about her occupation of the suit premises.

Held:

1. The plaintiff’s bare allegation in the affidavit of co-ownership of the suit premises was unacceptable as prima facie evidence of that claim and there was no evidence given to support it. There was no document such as a salary slip or a savings account abstract to lend credibility to the allegation that the plaintiff had contributed half of the purchase price.

2. The plaintiff’s occupation, her work and labour in the alleged developments were as a result of her being a member of the first defendant’s family. An occupation of such a nature did not give rise to ownership over her husband’s (the first defendant’s) property.

3. Under normal circumstances, it is reasonable for a lender to presume that only members of the family of the registered owner would be residing and working on the property involved in the transaction and if the courts were to start paying heed to such considerations which have no legal basis then the right of a registered owner to raise a loan on the security of his immovable property would be undermined.

4. As the second defendant had ascertained the first defendant’s ownership of the premises and that it was free from encumbrances, obtained the consent of the Land Control Board to the transaction and otherwise complied with the requirements of the Registered Land Act (cap 300), was under no obligation to inform any other party of the intended advance of the loan under the charge.

5. The plaintiff’s chamber summons application was completely devoid of merit.

Plaintiff’s application dismissed.

Cases

No cases referred to.

Statutes

1. Registered Land Act (cap 300)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2

Kipng'etich v Republic

Court of Appeal, at Nairobi

 December 10, 1984

Chesoni Ag JA

Criminal Application No NAI 17 of 1984

(Appeal from the High Court at Nairobi, O’Kubasu J)

Appeal - extension of time - to file appeal - application for - litigant taking necessary steps to instruct advocate - failure of advocate to file appeal in time - litigant instructing another advocate - application for extension of time made after 3 months - whether litigant entitled to extension of time.

The applicant, whose appeal was dismissed by the High Court, filed an application three months later asking the Court of Appeal for an extension of time within which to file a notice of appeal. In her affidavit in support of the applicant’s application, his wife deponed that she had instructed an advocate about a month after the dismissal of the appeal by the High Court but she later discovered that that advocate had taken no action in filing and prosecuting the appeal. She further stated that she instructed another firm of advocates who had filed the application for extension of time.

Held:

1. It had been satisfied that the applicant had taken the necessary steps to prosecute his appeal but she was let down by his former advocate.
2. The delay in filing the appeal was not inordinate and as the matter involved the liberty of a subject, the court would exercise its discretion in favour of the applicant.

 Application allowed.

Cases

No cases referred to.

Statutes

No statute referred to.

Advocates

1. Mr. Odero for Applicant
2. Miss Mbarire for Respondent