Njoki v Republic

High Court at Nairobi

December 2, 1988

Mbito Ag J, Shah CA

Criminal Appeal No 687 of 1987

(Appeal from conviction and sentence of the Resident Magistrate’s Court at Kiambu, R K Mwangi Esq)

Minor – evidence of a minor–– child aged 12 years testifying as a complainant in criminal trial – whether complainant a child of tender years under the Evidence Act (cap 80) section 124 – whether complainant’s evidence requiring corroboration – meaning of child of tender years -Penal Code (cap 63) section 14(1).

The appellant was tried in a magistrate’s court, convicted and sentenced to imprisonment for two and a half years’ with 6 strokes of the cane for committing an unnatural offence contrary to section 162 of the Penal Code (cap 63).

The prosecution evidence involved the testimony of the complainant, a young boy aged 12 years, the evidence of a doctor regarding injuries and spermatozoa in the complainant’s anus and that of the complainant’s brother who testified that he had seen the appellant go in the direction of the complainant on the material day.

The Evidence Act (cap 80) section 124 provided that an accused person shall not be liable to be convicted on the uncorroborated evidence of a child of tender age.

Among the issues that the High Court had to consider on the appellant’s appeal was whether the complainant was a child of tender years whose evidence needed corroboration.

Held:

1. Within the meaning of section 124 of the Evidence Act (cap 80), a child of tender years seemed to be a child who is legally immature and incapable of being responsible for his own actions and they include children under the age of eight years who under section 14(1) of the Penal Code (cap 63) are not criminally responsible for any acts or omissions.

2. The Evidence Act (cap 80) section 124 only applied to children under the age of eight years upon whose uncorroborated evidence no conviction could be based.

3. The complainant in this case was aged 12 years. He was therefore not a child of tender years whose evidence required corroboration as a matter of law.

4. However, as the complainant was not over the age of 14 years, his evidence still needed corroboration as a matter of practice and the court had to caution itself of the dangers of convicting on the uncorroborated evidence of such a child before acting on such evidence.

5. The trial magistrate had found the complainant to be an intelligent child who knew why he should speak the truth and allowed him to take an oath. He was a truthful witness and his evidence was safe for basing a conviction even though it was uncorroborated in a material particular.

6. The appellant’s appeal had no merit and his sentence of two and a half years’ imprisonment was not manifestly excessive or harsh in the light of the offence.

Appeal dismissed.

Cases

No cases referred to.

Texts

Concise Oxford Dictionary (1979) Oxford: Oxford University Press

Statutes

1. Penal Code (cap 63) sections 14(1), 162

2. Children and Young Persons Act (cap 141)

3. Evidence Act (cap 80) section 124

Advocates

Appellant unrepresented.

P N Mugo, State Counsel, for the Respondent.

Imbusi Luvonga v Pamba Luvonga

Court of Appeal, at Kisumu

December 2, 1988

Nyarangi, Masime JJA & Kwach Ag JA

Civil Appeal No 90 of 1987

(Appeal from the High Court at Kakamega, Aganyanya J)

Appeal – appeals from the High Court to the Court of Appeal – High Court sitting in appeal from a decision made by Resident Magistrate’s court on appeal from a District Magistrate’s Court – whether appeal against the decision of the High Court to the Court of Appeal competent - Civil Procedure Act (cap 21) section 71A

The appellant was a defendant in a land case filed in the then Lurambi African Court. The case was taken over, heard and determined by a District Magistrate’s Court of the third class which found in favour of the appellant.

The respondent appealed against that decision to a Resident Magistrate’s Court, which upheld the decision of the District Magistrate and dismissed the appeal.

The issue for decision was whether an appeal lay against the decision of the High Court to the Court of Appeal.

Held:

1. The appeal to the High Court being an appeal from decree passed by the Resident Magistrate’s Court on an appeal on a point of law from a court of a District Magistrate of the third class, it was final by virtue of the Civil Procedure Act (cap 21) section 71A (1) and (2).

2. The appeal before the Court of Appeal was therefore incompetent.

Appeal struck out.

Cases

No cases referred to.

Statutes

Civil Procedure Code (cap 21) section 71A(1), (2)

Elijah Shamalla Benjamin Momo v Gerry Chibeu

Court of Appeal, at Kisumu

December 1, 1988

Nyarangi, Masime JJA & Kwach Ag JA

Civil Appeal No 169 of 1986

(Appeal from a judgment of the High Court at Kakamega, Aganyanya J)

Land law – controlled transaction – sale of agricultural land – party applying for consent of land control board more than six months after the transaction – whether application valid –Land Control Act (cap 302) sections 6, 8, 9.

The respondent entered into an agreement to sell a piece of agricultural land to the appellant. The respondent later reneged on his commitment to this sale by entering into another sale agreement for the same land to a third party. The appellant lodged a caution against the title and took possession of the land.

The respondent filed a plaint seeking the removal of the caution and for the eviction of the appellant in which the latter gave evidence that the original agreement had been signed on February 6, 1982 and the consent forms had been sent to the District Officer on 4th February, 1983.

The High Court held that the parties had entered into a controlled transaction which required the consent of the Land Control Board and that as no consent had been obtained, the agreement was void.

The appellant appealed.

Held:

1. Since the purported application for consent was submitted long after the expiry of a period of six months and was made without seeking an order from the High Court for extension of time as required by the Land Control Act (cap 302), there was no valid application pending before the Board.

2. It followed that the agreement for sale was void for all purposes for lack of consent under section 6 of the Land Control Act.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Land Control Act (cap 302) sections 2; 6, 6(1)(a); 8, 8(1); 9, 9(2); 11; 13

Advocates

Mr Kagucia for the Appellant

Mr Azangalala for the Respondent

Joseph Muthusi & 2 others v William Gathogo & 2 others

High Court, at Nairobi November 28, 1988

Mbito J

Civil Case No 3432 of 1988

Trade Union – Trade Union rule- whether court can interfere with decisions made by majority of members according to the rules - court not to involve itself in day to day running of a union.

Injunctions - interlocutory injunctions - principles on which injunctions are granted - the principles in the case of Giella v Cassman Brown - extension and manifestation of the principles.

The plaintiffs filed a suit against the defendants and concurrently therewith sought an injunction restraining them from conducting elections of a Trade Union known as Kenya Engineering Workers Union until the determination of the suit.

The suit was occasioned by a letter written by the Union’s General Secretary informing Emco Steel Works Ltd that there would be a meeting of the Union members working for the said company at which shop stewards would be checked to represent the workers within the company in the Union.

The plaintiff disputed the validity of the notice convening the meeting alleging that the meeting would be in contravention of the Union rules. They alleged that the plaintiffs who had since been elected to represent the workers in the industry were unlikely to attend the meeting which would be to the detriment of workers.

Held:

1. The Union has its own rules, the observance of which can be enforced by a majority of the membership insisting on their observance. If wrong decisions are made then the members must be deemed to have so agreed where the rules permit the majority to make decisions.

2. In such cases it would be futile for the court to interfere where the irregularity is a breach of a regulation which can be regularized by a majority of the membership and does not affect a member’s membership directly.

3. It would be futile for the court to involve itself in the day to day running of a union such as the current one which has its own rules governing itself.

4. Although it cannot be said that the principles of granting injunctions have been settled it can however be stated that in Kenya the principles have been broadly indicated in the case of Giella v Cassman Brown.

5. Recent decisions appear to have modified the requirement regarding the existence of a triable issue. They also stress the need for maintenance of status quo rather than monetary compensation.

Application dismissed.

Cases

1. Giella v Cassman Brown & Co Ltd [1973] EA 358

2. Otieno v Ougo & another (No 2) [1987] KLR 400

3. Gheewala, Maheschandra Shamjibhai v Aruna B Gheewala & others Civil Application No NAI 27 of 1986

Statutes

Trade Unions Act (cap 233)

Advocates

Mr Geda for Applicants

Mr Jaffer for Respondents

Jopley Constantine Oyieng v Republic

Court of Appeal, at Nairobi

November 24, 1988

Nyarangi, Platt & Apaloo JJA

Criminal Appeal No 45 of 1988

(Appeal from an Order of the High Court at Nairobi, Aragon J)

Constitutional Law – references on the interpretation of the Constitution – references to the High Court under section 67(1) of the Constitution –procedure for making such reference–– party denied leave to make institute a private prosecution by a subordinate court – party filing application for interpretation of his constitutional rights in the High Court – whether application competent – whether application raising any issue for interpretation of the Constitution.

The appellant sought leave from a Chief Magistrate’s Court to institute a private prosecution. The Court declined to grant leave and the appellant brought an application in the High Court under sections 67 and 84 of the Constitution.

The High Court, upon a brief hearing on a preliminary objection raised by the State, observed that the wrong procedure had been followed and dismissed the application.

The appellant appealed to the Court of Appeal arguing that the High Court had not heard him on the substantive application and that the judge had erred in his conclusion that the application was incompetent.

Held:

1. The reference of an issue for the interpretation of the Constitution to the High Court under section 67(1) of the Constitution is made by the subordinate court in which the party applies for such reference; such reference is not made by the party himself.

2. In this case, there was no matter before the Chief Magistrate as to the interpretation of the Constitution and for that reason, section 67 of the Constitution did not apply.

3. The subordinate court having not made a reference to the High Court, there could not be anything in the Constitution identified for interpretation.

4. Under section 26 of the Constitution, only the Attorney-General has the right to institute criminal proceedings and no similar right is extended to a private individual. Section 26(3) contemplates prosecutions by authorised parties in respect of which the Attorney-General may act as provided in the subsection.

5. The appellant had therefore failed bring himself within the provisions of sections 70 to 83 (inclusive) of the Constitution so as to entitled him to apply for redress to the High Court under section 84 of the Constitution. His application to the High Court was therefore incompetent.

6. Even if the matter before the High Court had been competent as being an application under section 67(1) of the Constitution, there would be no appeal as no right o f appeal has been given. A right of appeal can only be conferred by statute.

Appeal struck out.

Cases

No cases referred to.

Statutes

1. Constitution of Kenya sections 26, 26(3), 67, 67(1), 70-83, 84,

2. Criminal Procedure Code (cap 75) sections 88(1), 89(5)

Ahmed & 3 others v Magugu

High Court, at Nairobi November 17, 1988

Akiwumi J

Civil Case No 2632 of 1988

Civil Practice and Procedure – summary judgment - leave to defend – court to grant leave to defend unless the defence is bogus.

Civil Practice and Procedure – affidavit evidence – where there are many disputed issues – whether such issues can be resolved by affidavit evidence.

The plaintiff sought summary judgment against the defendant in the sum of Kshs 9,500,000/= which he claimed was the balance of the purchase price due from the defendant for the purchase of 85% of the shares in Kamiti Tanners (Kenya) Limited owned by the plaintiff.

The agreement for sale stated that the defendant had made a down payment of Kshs 2,500,000 the receipt of which the plaintiff acknowledged hence the defendant contended that the claim for Kshs 9,500,000 was incorrect.

The defendant further showed in his affidavit that upon execution of the agreement for sale of shares he was credited with the sum of Kshs 1,490,000 being the value of certain vehicles which did not to form part of the assets of Kamiti Tanners.

Held:

1. The general rule is that unconditional leave to defend should be given unless there is reasonable ground for holding that the defence put forward is bogus.

2. The various payments which the defendant claims he made are issues that cannot be resolved on the affidavit evidence.

3. There were triable issues disclosed in this case which had to go for trial.

Application refused.

Cases

1. Kenya Properties Ltd v Abhay Kumar Sharma Civil Appeal No 76 of 1983

2. Jones v Stone [1894] AC 122

3. Giciem Construction Company v Amalgamated Trades & Services [1983] KLR 156; [1982-88] 1 KAR 309

4. Camille v Merali [1966] EA 411

5. City Printing Works (Kenya) Ltd v Bailey [1977] KLR 85

6. Gupta v Continental Builders Ltd [1978] KLR 83

Statutes

No statutes referred.