Mwau v Republic

 Court of Appeal at Nyeri

May 26, 1984

Hancox JA , Chesoni & Nyarangi Ag JJA

 Criminal Appeal No 128 of 1983

(Appeal from the High Court at Nyeri, Patel J)

 Criminal Practice and Procedure – nolle prosequi – power to enter – whether powers vested therein on the Attorney General can be delegated – provisions of section 82 and 83 of the Criminal Procedure Code (cap 75).

Nolle Prosequi – powers of the Attorney General – to enter a nolle prosequi – whether those powers can be delegated - whether those powers can be exercised by a state counsel – whether section 82 (1) of the Criminal Procedure Code (cap 75) permitting delegation was inconsistent with the Constitution – provisions of section 26 and 26 (b) of the Constitution.

Reference – reference and appeals to the High Court - on interpretation of the Constitution - reference of substantial question of law – requirement that question has to be raised in proceedings – provisions of section 67 of the Constitution - whether question can be raised once a nolle prosequi has been entered.

Constitutional law - powers of the Attorney General - delegation of - powers of - provisions of section 26 and 26(b) of the Constitution.

The appellant was charged with two offences contrary to the Penal Code (cap 63). The appellant challenged the validity of the charges. Before the court ruled on the objection the Provincial State Counsel entered a nolle prosequi under section 82 of the Criminal Procedure Code. The appellant objected to the nolle prosequi on the ground that there was no power of delegation and requested the court to refer the question to the High Court for determination under section 67(1) of the Constitution.

Held:

1. The Attorney-General has the power to discontinue at any stage before judgment any criminal proceedings against any person.
2. The power to enter a nolle prosequi is vested in the Attorney-General to the exclusion of any other person or authority, however he can delegate those powers designated by section 26 of the Constitution.
3. The purpose of section 26 of the Constitution is not to ensure that only the Attorney-General in person can enter a nolle prosequi, but to prevent any future legislation from conferring the power on any other person of authority.
4. Section 82(1) of the Criminal Procedure Code (cap 75) is not inconsistent with the section 26 of the Constitution. This interpretation is clearly reflected in section 26(b) of the same Constitution which permits the withdrawal, with consent of the court, any criminal proceedings instituted by any other person or authority other than the Attorney General.
5. Where the Attorney General has entered a nolle prosequi the court has no choice but to act on the nolle prosequi and discharge the accused person.
6. Where a substantial question of law is raised, it should be referred to the High Court for determination under section 67(1) of the Constitution; in this case the reference cannot have been raised because by then a nolle prosequi had been entered hence there were no proceedings in existence to give foundation for such a reference or appeal.

Appeal dismissed.

Cases

1. Mwangombe and Another v Republic Miscellaneous Criminal Application No 79 of 1984 (unreported)
2. Njeru v Republic Criminal Appeal No 4 of 1979; [1979] KLR 162
3. Njau and Others v City Council of Nairobi Civil Appeal No 74 of 1982; [1983] KLR 625
4. Gouriet v Union of Post Office Workers [1977] 3 All ER 70; [1978] AC 435

Texts

1. Shorter Oxford English Dictionary Oxford:Oxford University Press
2. James, J.S. Stroud’s Judicial Dictionary of English Words and Phrases London:Sweet & Maxwell

Statutes

1. Trespass Act (cap 294) section 3 (1)
2. Police Act (cap 84) section 60(1)
3. Criminal Procedure Code (cap 75) sections 82(1), 83, 89 (5), 132, 347(1)
4. Constitution of Kenya sections 26(1), (3), (3)(b), (5), (6); 67(1), (4); 74(1); 84

Advocates

1. Mr Wambeu for the Appellant

Mwaura v Republic

Court of Appeal, at Nyeri May 21, 1984

Hancox JA, Chesoni & Nyarangi Ag JJA

Criminal Appeal No 142 of 1983

(Appeal from the High Court at Nyeri, Patel J)

Criminal law - theft - offence of - contrary to - Penal Code (cap 63) s 278A - ingredients of the offence - meaning of theft - accused taking possession of property believing to be his - whether act of accused constituted theft - things that prosecution has to prove in the offence of theft.

The appellant, who had been charged with the theft of a lorry belonging to one Kiiru (the complainant), was acquitted ostensibly under s 204 of the Criminal Procedure Code (cap 75). The complainant said that the complaint was withdrawn so that the appellant could compensate him by transferring to him a certain other lorry. The complainant, however, admitted that the complaint had been withdrawn unconditionally and that there had been no record in the proceedings that he had been given the other lorry as compensation, which it was not disputed belonged to the appellant. After the complaint had been withdrawn, the complainant had taken the lorry allegedly offered as compensation to a police station for custody, from where the appellant had taken it back, alleging that it belonged to him and had been taken to the police station without his consent. The appellant was charged again with theft, convicted and sentenced. His first appeal to the High Court was dismissed and he filed a second appeal.

Held:

1. A person who takes possession of property which he really believes to be his own does not take it fraudulently, however unfounded his claim may be and for a person to be said to steal a thing, he must take it fraudulently and without claim of right. The appellant believed the lorry to be his and he had documents to support his claim.

2. Where a person accused of stealing property reasonably claims the property to be his, even if he is mistaken, he must be acquitted.

3. The prosecution had failed to prove ownership of the property by the complainant or that the taking of the property by the appellant was fraudulent and without claim of right; there was therefore no proof of ownership or theft and the conviction was unsupportable.

Appeal allowed.

Cases

Ngavana v Republic [1972] EA 559

Texts

Mitchell, S.G. et al., (Eds) (1979) Archbold: Criminal Pleading, Evidence and Practice 1979, London: Sweet & Maxwell 40th Edn p 52

Statutes

1. Penal Code (cap 63) section 278A

2. Criminal Procedure Code (cap 75) section 204