Ngumi v Republic

Court Of Appeal, at Nakuru

February 20, 1987

Kneller JA, Platt & Gachuhi Ag JJA

Criminal Appeal 168 of 1985

Criminal Law- Robbery with violence contrary to section 295(2) of the Penal Code – evidence – inconsistency in identification.

The appellant was convicted of robbery unit violence contrary to section 296(2) o the Penal Code.

His first appeal to the High Court was dismissed and conviction confirmed. It transpired during the trial at the subordinate court that the whilst the complainant in an unofficial identification identified the complainant she did not tell her neighbour on the night of the robbery when she reported the incident to him.

Held:

1. The trial court ought to have recalled the complainant to explain why she did not complain to her neighbour who gave the shelter that night.

2. Failure by prosecution witness to give details of alleged description of the appellant was important evidence of inconsistency in the witness identification or recognition of an accused.

Appeal allowed.

Timsales Limited v Up & Down Saw Mills (Kenya) Limited

Court of Appeal, at Nakuru

November 6, 1985

Madan Ag CJ, Kneller & Hancox JJA

Civil Appeal No 46 of 1984

(Appeal from the High Court at Nakuru, Masime J)

Damages – mitigation of – damages for loss of use of machine – machine borrowed by appellant from respondent returned after two years in poor working condition – respondent hiring replacement machine – whether act of respondent sufficient - mitigation of damages – whether respondent should have purchased new machine within reasonable time – whether two years a reasonable time - whether respondent entitled to damages calculated until date of return of machine.

Tort – detinue – damages for – assessment of damages – loss of use of machine - machine borrowed by appellant from respondent returned after two years in poor working condition – respondent not purchasing replacement machine within reasonable time – whether respondent entitled to damages calculated until date of return of machine.

About one month after the respondent lent a portable cross-cut saw to the appellant, the respondent declined to take it back until the appellant had repaired the damage that had occurred to it while it was in the appellant’s use. In addition, the respondent claimed Shs 30 per day for loss of user of the saw. The appellant, however, returned the saw about two years later.

The respondent sued for the return of the saw in good working condition, damages and interest. The trial judge, in giving judgment in favour of the respondent, found, among other things, that in the circumstances, the respondent had been right in hiring an alternative machine to keep its business running and also in order to mitigate damages. Judgment was entered for the respondent for damages at the rate of Shs 30 per day from the day following the borrowing of the saw until the day of its return, the return of the saw in working condition or its replacement with a new saw and interest on the sum awarded. The appellant appealed.

Held:

1. The trial judge’s findings that the appellant had borrowed the machine while it was in good working condition, that he had failed to take reasonable care of it and that he had promised to repair it were all findings of fact supported by evidence.
2. The trial judge erred in saying that since the respondent expected the machine to be returned within a reasonable time, there was no obligation on its part to mitigate its losses by purchasing another machine.
3. The respondent ought to have mitigated the damage by purchasing another machine within a reasonable time during which he could expect the appellant to return the machine. Such reasonable time would be ninety days.
4. The period of more than two years allowed by the trial judge as the period in which the respondent could envisage the return of its machine and therefore not purchase a replacement was unreasonably long and therefore wrong. Consequently, it was wrong and exaggerated to award damages up to the time of the return of the machine by the appellant.

Appeal allowed on quantum of damages.

Cases

No cases referred to.

Statutes

No statutes referred.

Criminal Practice and Procedure – appeals - summary rejection of High Court – criminal law – recent possession of stolen property.

Criminal law - robbery with violence contrary to section 296(1) of the Penal Code. Evidence – identification – what constitutes proper identification.

Mwangi s/o Wachira v Republic

Court of Appeal, at Nakuru

 September 24, 1985

Madan, Kneller & Nyarangi JJA

 Criminal Appeal No 157 of 1984

 (Appeal from the High Court at Nakuru, Masime J)

Criminal law – conveying suspected stolen property - contrary to section 333 of the Penal Code – criminal law – being in possession of cannabis sativa (Bhang) not under medical preparation – meaning of possession – section 4 of the Penal Code (cap 63).

Criminal Practice and Procedure - hearing witnesses – refusal by magistrate to hear a witness - duty of magistrate.

The appellant was tried and convicted by subordinate court on two counts one of which was being in possession of cannabis sativa not under medical preparation and conveying suspected stolen property contrary to section 333 of the Penal Code (cap 63). His first appeal to the High Court was dismissed hence the second appeal to the Court of Appeal. The grounds of his appeal were that he was denied an opportunity to call witnesses, that there were inconsistencies int he prosecution evidence and that the prosecution did not prove its case beyond reasonable doubt among others.

Held:

1. There was nothing about the possession to suggest the appellant was conveying the property or that any of it could reasonably be suspected of having been stolen or unlawfully obtained.
2. The account which the appellant offered under oath more than sufficed as possibly a reasonable explanation and it was a misdirection on the part of the trial court and the High Court to hold that the appellant explanation of how he came by the same was unmeritorious.
3. There was no evidence that the appellant kept or hid the bhang in the roof so as to make it his possession. It was incumbent upon the prosecution to demonstrate by evidence that the appellant could reasonably be deemed to be in possession in terms of section 4 of the Penal Code .
4. (Obiter) Refusal by the magistrate to allow the prosecutor to call his third witness denied the appellant an opportunity to ask him questions.
5. (Obiter) The appellant not being represented by an advocate all important witnesses for the prosecution aught to have been called at the trial.

Appeal allowed.

Cases

1. R v Fulabhai Patel & Another (1946) 12 EACA 179

Statutes

1. Penal Code (cap 63) sections 4, 333
2. Criminal Procedure Code (cap 75) section 26

Advocates

1. Mr Etyang, Principal State Counsel, for Republic