Murube & another v Republic

Court of Appeal, at Nairobi December 22, 1986

Nyarangi, Platt & Apaloo JJA

Criminal Appeal No 159 of 1984

(Appeal from the High Court at Kisumu, Schofield J)

Evidence – identification evidence - identification by a single witness – how court should treat such evidence – whether such evidence sufficient to sustain conviction.

The appellants were tried and convicted in the High Court for the offence of murder. The conviction was based largely on the evidence of a single witness who informed the court that the appellants had been in a gang of persons who attacked her family in the night and killed her mother. The witness testified that she was able to recognize the appellants on account of their voices and the artificial light used during the attack.

In their appeal against their conviction, the appellants argued, among other things, that the circumstances of the material night did not favour a proper identification.

Held:

1. Though a fact may be proved by the testimony of a single witness, there remains the need to test with the greatest care the identification evidence of such a witness especially when it is shown that the conditions favouring a correct identification were difficult.

2. In the evaluation of the evidence of the identifying witness, the Court was to ensure beyond all reasonable doubt that the witness was honest and unmistaken about her identification of the appellants.

3. The witness’ evidence of identification by recognition left no doubt in the Court’s mind that she had recognized the appellants among the persons who murdered the deceased.

4. The appellants had been convicted on cogent evidence.

Appeal dismissed

Cases

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

2. Dinkerrai Ramkrishan Pandya v R [1957] EA 336

3. Karanja (Kariuki) v Republic [1986] KLR 190

4. Mwangi, Robert Muthee & another v R Criminal Appeal No 121 of 1984 (unreported)

5. Roria v Republic [1967] EA 583

6. R v Turnbull [1976] 3 All ER 549; [1977] QB 224

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr Osoro for the Appellants

Mr Murgor for the Respondent

Maina & 3 others v Republic

Court of Appeal at Nairobi November 25, 1986

Platt, Gachuhi & Apaloo JJA

Criminal Appeals Nos 8 & 19 of 1986 (Consolidated)

(Appeals from the High Court at Nairobi, Owuor & Schofield JJ)

Criminal law – preparation to commit a felony – offence of – essential ingredients of – appellants carrying weapons while walking in a public place – whether such evidence sufficient to establish offence.

Evidence – recent possession – doctrine of – gun stolen in robbery – appellant found in possession of stolen gun two and a half months later – whether such evidence sufficient to prove charge of robbery.

Evidence – hearsay evidence – inadmissibility of – police tipped by informant about robbery plan - appellants arrested with weapons in area mentioned by informant – appellants charged with preparing to commit felony – informant not called to testify – appellants convicted – whether evidence on informant hearsay evidence – whether conviction proper.

Following an ambush laid by the police in an area where they had received information that an offence was going to be committed, the 1st appellant was found with a live pistol in a brief case and the other three with simis tucked in their trousers.

The appellants were arrested and jointly charged in a magistrate’s court with one count each of the offences of robbery, preparing to commit a felony and being in possession of a firearm and ammunition without a firearm and ammunition certificates respectively. It was the prosecution’s case that all the appellants had been in possession of the pistol and ammunition and they had been the persons who had committed a robbery at a certain factory about two and a half months previously during which the pistol was stolen.

Three prosecution witnesses, who were police officers, testified that the arrest of the appellants had been arranged after the police had learnt from an informant of a plan to rob a house near the place where the arrests were made. The alleged informant, however, was never called to testify at the trial.

The appellants were convicted on all the charges and sentenced. On appeal to the High Court, the convictions of the 1st appellant were sustained and with regard to the 2nd, 3rd and 4th appellants, the only conviction upheld against them was for preparing to commit a felony, for which the court passed on them the mandatory minimum sentences of 10 years. The appellants appealed to the Court of Appeal against their convictions and sentences.

Held:

1. In order for the conviction of the appellant for the offence of robbery to be sustained, the court had to ask itself whether the evidence led would justify a conclusion that he was one of the persons who had committed the robbery at the factory and such evidence must reach the degree of certainty required to sustain a conviction in a criminal trial.

2. The time lapse of two and a half-months between the date of the theft of the pistol at the factory and the discovery of it on the appellant was so much that it would be unreasonable to hold that the mere possession of the pistol was sufficient to found a conclusion that the appellant participated in the robbery at the factory under the doctrine of recent possession.

3. The 1st appellant’s convictions for being in possession of a firearm and ammunition without ammunition and licence certificates respectively were proper on the evidence and there were no good grounds for interfering with those convictions.

4. In order to sustain a conviction on a charge of preparing to commit a felony, it must be shown that the appellants were armed with a dangerous or offensive weapon and that the circumstances must indicate that they were so armed with the intention of committing a felony.

5. Though the appellants had been armed with offensive weapons, the failure to call the police informant to testify meant that the evidence narrated to the trial court that the informant had advised the police that a robbery was about to be committed was inadmissible because it was hearsay evidence which ought to have been rejected by the court.

6. As the Court was in no position to say whether the trial magistrate would still have come to the conclusion that the appellants were armed with the intention of committing a felony if he had excluded the hearsay evidence, it would be unsafe to allow the conviction for that offence to stand.

7. (Obiter) Had the police not acted precipitately but waited and actually saw the appellants attempt to enter the house which it was alleged they intended to commit a robbery, the Court may well have come to the conclusion that the appellants intended to commit a felony.

Appeals allowed.

Cases

1. R v Loughlin 35 Cr App R 69; 95 SJ 316

2. Njunga v Republic [1965] EA 773

Statutes

1. Penal Code (cap 63) section 295

2. Firearms Act (cap 114)

3. Evidence Act (cap 80) section 175

Advocates

Mr Khaminwa for the 3rd Appellant

Mr Z Gathaara, State Counsel, for the Respondent

1st, 2nd and 4th Appellants appearing in person

Mairi v Ngonyoro “B” & another

Court of Appeal, at Nairobi November 18, 1986

Nyarangi, Platt & Gachuhi JJA

Civil Appeal No 117 of 1984

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

Arbitration – reference to arbitration by court order – contents of order - whether order should contain all or some matters in dispute – whether proper for a court to omit some matters in dispute to arbitration – meaning of “any matter” in reference to arbitration - Civil Procedure Rules order XLV.

Arbitration – filing of arbitration award out of time – failure to seek extension of time - effect of – Civil Procedure Rules order XLV rule 8.

The High Court dismissed an application by the appellant in which he had sought orders that an arbitrator’s award filed in the court be set aside and that the suit be fixed for hearing in the normal way. The main issue in the appellant’s appeal against that decision was whether the consent order by which the High Court referred the dispute to arbitration on three stated issues complied with order XLV rule 1 of the Civil Procedure Rules.

Held:

1. The term “any matter in difference between the parties to a suit” in rule 1 of Order XLV of the Civil Procedure Rules refers to all disputed matters in the pleadings. Therefore, an application to the court for an order of reference and the order of reference to arbitration should encompass all the matters in dispute and not only issues stated by the consent order.

2. To restrict a reference to arbitration by selecting a number of issues and thereby omitting or running the risk of omitting some matters in difference amounts to non-compliance with rule 3(1) of Order XLV.

3. After a reference to arbitration by an order of the court, the court could not hear the matter or any part thereof during the currency or pendency of arbitration.

4. As the arbitration award had been filed out of time and nothing had been done under Order XLV rule 8 to extend the time for the making of the award, the award filed was a nullity.

Appeal allowed.

Cases

1. Nyangau v Nyakwara [1986] KLR 712; (1982-88) 1 KAR 805

2. Cleophas Wasike v Mucha Swala Civil Appeal No 6 of 1983; [1984] KLR 591

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XLV rules 1; 3(1), (2); 5(1),(2); 7(1). (2); 8(1), (2); 11; 12; 13; 14; 15; 17

Jivraj Shah v Republic

Court of Appeal, at Nairobi November 12, 1986

Nyarangi, Gachuhi & Apaloo JJA

Criminal Application No NAI 18 of 1986

(Application for bail pending appeal in an intended appeal from a judgment of the High Court at Nairobi, Amin & Aluoch JJ)

Bail – bail pending appeal – application for – matters the court will consider in such an application -Court of Appeal Rules rule 5(2)(a) - where issues of law to be raised at appeal exist.

The applicant, whose first appeal against conviction and sentence was dismissed by the High Court, brought a motion in the Court of Appeal under rule 5(2)(a) of the Court of Appeal Rules seeking to be admitted to bail pending the hearing and determination of his appeal.

Held:

1. The principal consideration in an application for bail pending appeal is, the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interests of justice to grant bail.

2. If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist.

3. The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.

4. The circumstances in which the presiding judge became a complainant against the applicant raised a serious question as to whether justice could be said to have been done and seen to have been done.

5. The issue of law to be argued on appeal as to whether there was a “taking” within the meaning of section 268 of the Penal Code (cap 63) was substantial.

6. This was a proper case for the Court to exercise its discretion in the applicant’s favour and admit him to bail.

Application allowed.

Cases

1. Somo v Republic [1972] EA 476

2. Karanja (Kariuki) v Republic [1986] KLR 190

Texts

Mitchell, S.G. et al (Eds) (1982) Archbold: Pleading, Evidence and Practice in Criminal Cases London: Sweet & Maxwell 41st Edn p 783 paras 7-86

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(a)

2. Penal Code (cap 63) section 268

Advocates

Mr B Chunga for the Respondent