Kihara v Republic

Court of Appeal, at Nakuru October, 1986

Nyarangi, Platt & Gachuhi JJA

Criminal Appeal No 54 of 1985

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

Evidence – dying declaration – how court must caution itself in convicting upon a dying declaration - whether corroboration of the dying declaration a necessity.

Assessors – opinion of – whether opinion binding on trial judge – need for judge to give reasons for disagreeing with assessors’ unanimous opinion.

Evidence - witnesses - number of witnesses - necessity of many witnesses - principle that it is the soundness of evidence and not the number of witnesses.

The appellant was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (cap 63). The facts of the case were that moments after the deceased and the appellant had fallen into an argument, one of the prosecution witnesses found the deceased lying on the ground and telling the appellant not to beat him anymore. Two other witnesses, one of whom included the deceased’s wife, testified that before his death the following morning, the deceased had told them of his being beaten by the appellant and of having been kicked in the stomach. A post-mortem report stated the cause of the deceased’s death to be internal haemorrhage due to raptured spleen caused by blunt force on the abdomen.

After trial, the appellant was convicted of the lesser offence of manslaughter and sentenced to imprisonment for eight years. On appeal, he argued that the prosecution had failed to call some witnesses, that the trial court had relied on a dying declaration to convict him and that the trial judge, by convicting him of manslaughter, had overruled the assessors’ unanimous opinion that he was not guilty of murder.

Held:

1. Even though there is no rule that a dying declaration must be corroborated, a court needs to caution itself that in order to obtain a conviction upon a dying declaration, it must be satisfactorily corroborated and particular caution must be exercised as to when the attack took place, the identification of the assailant and the weapon used.

2. Before a dying declaration is relied upon, it has to be shown that death is imminent and directly related to the incident.

3. Under section 322(2) of the Criminal Procedure Code (cap 75), a judge is not bound by the opinion of assessors but if he disagrees with their unanimous opinion, he should explain sufficiently the reasons for his disagreeing.

4. The prosecution had failed to prove the offence beyond reasonable doubt and it would therefore be unsafe to uphold the conviction.

5. The prosecution is not compelled to call as many witnesses as there could be as what matters is not the number of witnesses but the best sound evidence that can be given in court. It would have been pointless to call witnesses who did not know what had happened between the appellant and the deceased.

Appeal allowed.

Cases

1. R v Said s/o Abdulla, alias Saidi s/o Mangombe (1945) 12 EACA 67

2. R v Mgundulwa s/o Jalu & others (1946) 13 EACA 169

3. R v Ramazani bin Mirandu (1934) 1 EACA 107

4. R v Eligu s/o Odel & Epongu s/o Ewunyu (1943) 10 EACA 90

Texts

1. Roome, H.D. Ross, R.E. (Eds) (1927) Archbold: Pleading, Evidence and Practice in Criminal Cases London: Sweet & Maxwell 27th Edn 2914

2. Sarkar, S.C (1959) Law of Evidence Calcutta:Sarkar & Sons 10th Edn

Statutes

1. Penal Code (cap 63) sections 203,204

2. Criminal Procedure Code (cap 75) section 322(2)

Wainaina v Republic

Court of Appeal, at Nakuru September 24, 1986

Nyarangi, Platt & Gachuhi JJA

Criminal Appeal No 67 of 1986

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

Criminal Practice and Procedure – pleas – taking and recording of pleas – accused stating that charges were true - accused admitting the facts narrated by prosecution – whether appellant’s plea an unequivocal plea of guilty.

Sentence – severity of – appeal against – whether second appeal lies against severity of sentence – Criminal Procedure Code (cap 75) section 361(1)(a), (b).

The appellant was convicted in a magistrate’s court on seven counts of causing death by dangerous driving contrary to section 46 of the Traffic Act (cap 403) and one count of failing to comply with the conditions of Road Service Licence contrary to sections 8(1)(c) and 24 of Transport Licensing Act (cap 404). To the first seven charges, the appellant stated’“It was true. I caused death by dangerous driving” and to the remaining charge, “It was true I failed to comply with R.S. conditions”. The appellant also stated that he admitted all the facts narrated by the prosecution.

The High Court dismissed the appellant’s appeal against his conviction but reduced the sentences. He appealed further to the Court of Appeal against his conviction and sentences contending that he had not unequivocally pleaded to the charges and that there was no evidence on which the trial and first appellate courts could base their findings.

Held:

1. By virtue of the Criminal Procedure Code (cap 75) section 361(1)(a), the Court of Appeal could not hear the second appeal against sentence as it was an appeal against severity of sentence, which was a matter of fact.

2. There was evidence that the charges were read out and the ingredients explained and then interpreted to the appellant and he must have understood the charges before he replied to them. There was no evidence that the appellant disputed the facts or sought to assert additional facts.

3. On all the evidence, the lower courts were entitled to make the findings which they arrived at.

Appeal dismissed.

Cases

1. Orweryo Missiani v Republic [1979] KLR 285

2. Atto v R [1975] EA 278

3. Adan v R [1973] EA 445

Statutes

1. Traffic Act (cap 403) section 46

2. Transport Licensing Act (cap 404) sections 8(1)(c), 24

3. Criminal Procedure Code (cap 75) section 361(1)(a), (b)

Advocates

Mr Mirugi Kariuki for the Appellants

Mr Etyang for the Republic

Editorial Note

Section 24 of the Transport Licensing Act was repealed by Act No 5 of 1971, Sch.

Njihia v Republic

Court of Appeal, at Nakuru September 23, 1986

Nyarangi, Platt & Gachuhi JJA

Criminal Appeal No 13 of 1986

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

Appeals – summary rejection of – under section 352(2) of the Criminal Procedure Code (cap 75) – matters court should consider before summarily rejecting appeal.

Evidence – identification parades – how identification parades should be conducted – lining of three suspects with eleven other persons in identification parade – whether such identification parade properly conducted - Police Force Standing Orders.

The appellant was tried, convicted and sentenced on a charge of robbery contrary to section 296(2) of the Penal Code (cap 63). His conviction was grounded on identification by the sole evidence of the complainant and secondly, on possession of a stolen car two days after it had been robbed.

Though the robbery had occurred in the night, the complainant stated that he had identified the appellant then and both at an identification parade in which the appellant and two other suspects had been lined with eleven other persons and in the court during the trial. The appellant’s first appeal was summarily rejected and he filed a second appeal in the Court of Appeal.

Held:

1. As the complainant was the sole identifying witness in circumstances in which proper identification was difficult, the trial court needed to warn itself of the danger of relying upon the identification evidence or to look for corroboration if possible. As no such warning was employed by the trial court, the evidence of identification was highly suspect.

2. The two thresholds in summary rejection of appeals under the Criminal Procedure Code (cap 75) section 353(2) are, first, to do with the nature of the petition ie, whether the appeal is on the ground that the conviction is against the weight of evidence or that the sentence is excessive, and the second threshold which depends upon the judge’s careful scrutiny of the record is whether a reasonable doubt is raised as to whether the conviction was right or that the sentence ought to be reduced.

3. Even if a petition of appeal complies with the first test, the second test is not complied with if the record discloses a serious question relating to the identity of the appellant.

4. The appellant’s appeal ought not to have been summarily rejected as it was the judge’s responsibility to ensure whether the issue of identity could raise a reasonable doubt as to whether the appellant’s conviction was right.

5. The identification parade conducted in this case was not proper because contrary to the ratio of one suspect to eight persons which is stipulated in the Police Force Standing Orders, three suspects had been lined with eleven others. This was mathematically too low a ratio to exclude the chance of random guesswork.

6. Whether the appellant’s possession of the car led to the conclusion that he was one of the persons in the car on the day that it was stolen depended on whether he was properly identified in that car. As there was no certainty in the identification evidence, this was not a case in which it could be said that the charge was proved beyond reasonable doubt.

Appeal allowed.

Cases

1. Abdallah bin Wendo v R (1953) 20 EACA 166

2. Roria v Republic [1967] EA 583

Statutes

1. Penal Code (cap 63) section 296(2)

2. Criminal Procedure Code (cap 75) section 352(2)

3. Evidence Act (cap 80) section 57(1)

David Stephen Gatune v The Headmaster, Nairobi Technical High School & another

Court of Appeal at Nakuru

April 16, 1986

Hancox, Nyarangi JJA & Platt Ag JA

Civil Appeal No 79 of 1982

(Appeal from an Order of the High Court at Nakuru, Mead J)

Limitation of Actions – statute-barred claims – meaning of “disability” from filing suit in time under the Limitation of Actions Act (cap 22) section 22 - appellant suffering injury in the course of employment and undergoing prolonged treatment – medical certificate of total visual incapacity issued six years after injury – appellant entering into negotiations for compensation with Attorney-General – negotiations failing – appellant denied leave to file suit out of time – whether appellant had been under a disability preventing him from filing suit in time.

Estoppel - equitable estoppel - whether estoppel a defence to a claim of Limitation of Actions - party failing to file suit for personal injuries in time due to negotiations with the Attorney-General – negotiations unsuccessful - whether Attorney General estopped from pleading that party’s suit was time-barred - whether the negotiations were a “disability” under the Limitation of Actions Act (cap 22).

The appellant was a secondary school teacher employed by the government’s Department of Education whose work involved the handling of poisonous chemicals. In may 1970, he was taken ill while performing experiments in the school library.

He received extensive medical treatment culminating in his flight to the U.S.S.R where he was treated and held to have suffered permanent incapacity of his eyesight. A certificate to that effect was issued and dated 6th August, 1976.

On 23rd October, 1981, the appellant filed an application in the High Court under the Limitation of Actions Act (cap 22) and the Civil Procedure Act (cap 21) seeking leave to file a case against his school’s headmaster and the Attorney-General, the respondents, and for the period of limitation in filing that suit to be extended. The court dismissed the application.

The appellant appealed against the decision. His argument was that between 1973 and 1974, he had been hoping that his eyesight would be cured by the treatment he was receiving and the facts relating to the permanent loss of eyesight had come to his knowledge after the threeyear period of limitation. He had immediately entered into negotiations with the office of the Attorney-General and that if it hadn’t been for the delay in obtaining his medical certificate and for the protracted negotiations, he would have filed his action in time.

The respondents did not file a replying affidavit but counsel opposed the appeal stating that the appellant was eight years out of time and he should have sued by August 1979 since had all along known that he had a claim for negligence.

Held:

(Platt Ag JA dissenting):

1. The appellant had established that he obtained the medical report stating that he had suffered one hundred percent loss of eyesight in 1977.

2. This meant that the appellant had had knowledge of the material fact of the nature of the personal injury, which facts were at all times outside his knowledge, in 1977.

3. As the appellant did not give the month or date in 1977 when he was informed of the contents of the medical report as he should have done, this Court would take the earliest possible time, namely 2nd January, which would be the first day on which offices open. That was the date on which time began to run.

4. The appellant had established that he commenced negotiations with the Attorney-General’s office soon after he had knowledge of the extent of his injury and that by 16th October, 1981, the negotiations had not borne fruit.

5. The Attorney-General occupies a crucial role in litigation and protracted negotiations with him for payment of damages are taken seriously. A reasonable lay claimant would feel that by negotiating with him, the Attorney-General had invited him to delay court proceedings and that he would not be prejudiced by the delay.

6. There was a delay of ten months which appeared to have been due to negotiations. The Attorney-General should have informed the appellant before 2nd January, 1980 that it was in his interests to file an action within time and that by doing so, he would not be prejudicing negotiations out of court.

7. Having not done so and therefore having caused the appellant to continue with the negotiations, the appellant was not to be penalized and the Attorney-General was barred from setting up the provisions of the Limitation of Actions Act (cap 22).

8. Although the appellant was aware of the injury to his eyes from the 21st May, 1973, that knowledge alone did not in the circumstances of this case constitute material facts relating to the cause of action. On the evidence, he had been under a disability up the time when he knew of the contents of the medical report. He could reasonably be said to have been under equal disability when he negotiated with the Attorney- General.

Appeal allowed.

Cases

1. Pritam Kaur v S Russel & Sons Ltd [1973] 1 All ER 617

2. Board of Trade v Gayzer, Iruine Feo [1927] AC 610

3. Davis v Ministry of Defence The Times 7th August 1985

4. Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 122; [1981] 1 All ER

923

Texts

1. Hailsham, Lord et al (Eds) (1973-87) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XXVIII

2. Maudsley, R., Hansbury, JM (1985) Modern Equity London: Stevens & Sons 12th Edn pp 859, 860

Statutes

1. Limitation of Actions Act (cap 22) sections 22; 27(1), (2), (3); 28(1), (2); 30; 30(1)(b); 30(2),(3); 39

2. Civil Procedure Rules (cap 21 Sub Leg) order L rule 1

3. Civil Procedure Act (cap 21) section 63(2)

Advocates

Kariuki for the Appllent

Etyang, Principal State Counsel, for the Respondents

Nyambane v Republic

Court of Appeal, at Nakuru March 25, 1986

Hancox, Nyarangi JJA & Platt Ag JA

Criminal Appeal No 150 of 1985

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

Criminal law – obtaining by false pretences – contrary to section–313 of the Penal Code (cap 63) – ingredients of the offence – nature of false representation – distinction between false representation of existing fact and mere promise or statement of future intention.

Appeal – second appeal – where there are concurrent findings of fact of two lower courts – second appellate court not to unduly disturb such findings.

The appellant was charged under section 313 of the Penal Code (cap 63) with obtaining money from the complainant by falsely pretending that he was in a position to buy him a motor vehicle at a cheap price. The trial court found that the appellant had received money from the complainant under an agreement to obtain a vehicle for him but the appellant had failed to do so and it was discovered that the appellant had a vehicle of a make similar to the one contemplated in their agreement. The court convicted the appellant and ordered that the vehicle be transferred to the complainant. The High Court rejected the appellant’s first appeal.

On second appeal, it was submitted for the appellant that the transaction with the complainant which spread over several days involved a mere promise, a statement of future intention and therefore did not amount to a false pretence as to an existing fact as provided in section 312 of the Penal code.

Held:

1. By telling the complainant that he had a friend who was selling a car cheaply and promising to bring its owner and arrange the sale of it to the complainant, the appellant was representing that he had the power and means to obtain the car for the complainant at the stated price. This was a false pretence as to an existing fact which the appellant made in order to obtain the money and though the events occurred over several days, they were all one transaction.

2. Both the trial magistrate and the High Court judge on first appeal were right to find on the complainant’s evidence that the money was paid to the appellant and in the absence of any compelling reasons, this Court would not disturb those concurrent findings of fact.

3. As there was no evidence that the vehicle which was produced as an exhibit was the one which was being contemplated by the appellant and that the money paid over by the complainant was used by the appellant to purchase it, the rival claims to the vehicle did not fall within the jurisdiction of this court and should be the subject of civil proceedings.

Appeal dismissed.

Cases

1. Salum (Hassan) v Republic [1964] EA 126

2. R v Dent [1955] 2 All ER 806

3. R v Bates & Pugh (1848) 3 Cox’s Criminal Cases 201 at 809

4. Gitonga, Joseph Mwatha v R Criminal Appeal No 14 of 1984 (unreported)

5. Omboko v Republic [1983] KLR 191

Statutes

1. Penal Code (cap 63) sections 271, 311, 312, 313

2. Larceny Act 1916 [UK] section 32

3. Theft Act 1968 [UK]

4. Criminal Procedure Code (cap 75) section 178(1)

5. Sale of Goods Act (cap 31) section 25(1)

Advocates

Mr Otumba for the Appellant

Mr Etyang for the Respondent

Yego v Tuiya & another

Court of Appeal, at Nakuru February 21, 1986

Hancox, Nyarangi JJA & Platt Ag JA

Civil Appeal No 73 of 1985

(Appeal from a ruling of the High Court at Eldoret, VV Patel J)

Injunctions – temporary injunction - application for – under the Civil Procedure Rules order XXXIX rule 1 – whether proper for court to issue mandatory orders on such application - applicant seeking preservation of status quo – where status quo is not ascertained - court ordering eviction of registered owner from land – whether such order proper

The appellant, who was registered as the owner of a certain piece of land, filed a suit in the High Court for the eviction of the respondents from the land who he claimed had trespassed upon it. In her defence and counterclaim, the 1st respondent asserted her entitlement to the land averring that the appellant’s registration as owner was false.

The respondents applied for a temporary injunction restraining the appellant from ploughing, fencing or taking possession of the land and the judge ordered the appellant to deliver up vacant possession of it. The appellant appealed against the decision of the High Court.

Held:

1. The order of the judge requiring the appellant to deliver up vacant possession of the land exceeded the terms of the respondents’ application, and under the Civil Procedure Rules order XXXIX rule 1, this was not a proper thing to do.

2. The injunction sought by the respondents could not finally determine the dispute as it was only intended to preserve the status quo. It was therefore wrong for the judge to make a mandatory order as it may have the effect of finally disposing of the suit.

3. Since there was no sufficient evidence to show what the status quo was, the best course would be to set aside the order of eviction and to remit the matter to the High Court for further evidence to be given.

Appeal allowed, case remitted to the High Court.

Cases

1. Preston Luck (1884) 27 Ch D 497

2. Attorney-General v Birmingham, Tame and Rea Drainage Board (1881) 17 Ch D 685

3. Thompson v Park [1944] 2 All ER 477; KB 408

Statutes

1. Registered Land Act (cap 300) section 143(1)

2. Cviil Procedure Rules (cap 21 Sub leg) order XXXIX rule 1

Advocates

Mr Sheth for the Appellant

Mr Tanui for the Respondent

Marie & 3 others v Republic

Court of Appeal, at Nakuru February 18, 1986

Nyarangi JA, Platt & Gachuhi Ag JJA

Criminal Appeal No 69 of 1985

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

Evidence – identification by a single witness – how court should treat such evidence - requirement that court should warn itself of the danger of convicting on the evidence of a single witness.

The appellants were convicted and sentenced for the offence of robbery under section 296(1) of the Penal Code (cap 63). Their convictions were based largely on the evidence of identification by single witnesses.

The appellants’ first appeals to the High Court were dismissed and they appealed to the Court of Appeal arguing, among other things, that both the trial court and High Court had erred in finding that they had been adequately identified.

Held:

1. Subject to certain well known exceptions, a fact may be proved by a single witness but this rule does not lessen the necessity for testing very carefully the evidence of a single witness especially when there is evidence that the conditions favouring a correct identification are difficult.

2. Neither the trial court nor the first appellate court had warned itself of the danger of relying on the evidence of identification by a single witness.

3. The error not to subject the evidence of identification of the single witness to scrutiny was fatal.

Appeals allowed.

Cases

1. R v HM Kala (1941) 8 EACA 66

2. Thuo, Moses & another v R Criminal Appeal No 145 of 1985 (unreported)

3. Mwangi v Republic [1984] KLR 595

4. Githinji v R [1970] EA 231

Statutes

Penal Code (cap 63) sections 296(1), (2)