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

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

Ole Naeni v Republic

High Court, at Nairobi December 10, 1984

Aluoch J

Criminal Appeal No 1402 of 1984

(Appeal from the Second Class District Magistrate’s Court

at Kajiado, GK Mutai Esq)

Criminal Practice and Procedure – charge – defective charge – charge based on wrong provision of law – provision of law not a penalty provision – whether conviction under such charge proper – whether defect in charge curable – Animal and Diseases Rules rule 29(1) – Criminal Procedure Code (cap 75) sections 364(1), 382.

Criminal Practice and Procedure - revisionary jurisdiction of High Court – when exercised – where accused convicted on defective charge – charge based on wrong provision of law – defect occasioning injustice – defect incurable – only one accused appealing – whether proper case for revision - Criminal Procedure Code (cap 75) section 364(1).

The appellant, together with four other persons, was charged in a magistrate’s court with what was stated to be the offence of “[m]oving Animals without a permit, contrary to rule 29(1) of the Animal and Disease Rules, cap 364, Laws of Kenya”. The appellant and his co-accused were all convicted and sentenced to fines and an order was made for the forfeiture to the Government of 33 head of cattle to the Government. The appellant appealed.

Held

1. The rule under which the appellant was charged did not provide a penalty and was the proper provision.

2. The appellant suffered a miscarriage of justice in being convicted under the wrong provision.

3. The miscarriage of justice suffered by the appellant could not be cured under section 382 of the Criminal Procedure Code (cap 75) as the offence charged was not similar to that which was anticipated under the Animal Diseases Rules of the Animal Diseases Act (cap 364).

4. The proviso to section 382 of the Criminal Procedure Code did not apply in this case because the accused persons had not been represented in the lower court and could not have been expected to know that they were charged under a wrong section in order for them to raise an objection at the trial.

5. The Court would exercise its reversionary powers under section 364(1) of the Criminal Procedure Code in ordering the acquittal and release of the appellant and his co-accused.

Appeal allowed.

Cases

Uganda v Keneri Opidi [1965] EA 614

Statutes

1. Animal Diseases Act (cap 364)

2. Animal Diseases Rules (cap 364 Sub Leg) rule 29(1)

3. Criminal Procedure Code (cap 75) sections 364(1), 382

Advocates

Mr MN Mbaya for Appellant

Mr AK Nyairo for Respondent

Kanini Farm Limited v Commissioner of Lands

High Court, at Nairobi November 29, 1984

Nyarangi J

Land Acquisition Act Appeal No 1 of 1981

Compulsory acquisition - of land – by government – under the Land Acquisition Act (cap 295) – compensation upon acquisition – assessment of adequate compensation – basis of value – where land was originally agricultural – application for change of user made – change of user approved before acquisition - whether compensation should be based on value of residential property as opposed to agricultural property – factors to be considered when assessing the value.

Compulsory acquisition – of land – by government – payment of compensation – proper recipients of compensation – factors to be considered when assessing value – whether speculative value should be taken into account.

The appellants’ land was compulsorily acquired by the government under the Land Acquisition Act (cap 295). The appellant challenged the compensation awarded on the grounds that it valued the property as agricultural land when there had been a change of user to residential and that some of the recipients of compensation were trespassers of the land among other issues.

Held:

1. A person whose land is acquired is entitled to prompt payment of full compensation as a result of the acquisition as provided for under section 75 (1) (c) of the Constitution and section 8 of the Land Acquisition Act (cap 295).

2. When land is compulsorily acquired under the Land Acquisition Act an inquiry to determine the persons interested in the land, the value of the land and the compensation to be paid must be held as required by section 9 (3) of the Act.

3. Market value as a basis for assessing compensation is the price which a willing seller might be expected to obtain from a willing purchaser, the purchaser may be a speculator but a reasonable one.

4. The changes of user of the suit land, from agricultural to a residential character was approved before the acquisition, therefore it was fair and just that the property should be treated as residential in assessing compensation.

5. In determining the amount of compensation which ought to be paid the court should take into account comparable sales and awards on other acquisition of land of similar character.

6. The burden is on the appellant challenging the adequacy of the compensation to prove that the award of compensation is wrong.

Appeal allowed, award increased accordingly.

Cases

1. Many v The Collector Under Indian Land Acquisition Act [1957] EA 125

2. New Munyu Sisal Estates Ltd v Attorney-General [1972] EA 88

3. Collector v Heptulla [1968] EA 555

4. Collector v Kassam Shivji Bhimji [1959] EA 1063

Statutes

1. Land Acquisition Act (cap 295) sections 8; 9(1),(3); 20

2. Constitution of Kenya section 75(1)(c)

3. Indian Acquisititon Act 1894

4. Schedule to the Land Acquisition Act rules 2,3