Kamenju Muraya v Republic

Court of Appeal, at Nakuru

December 4, 1989

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 11 of 1989

Criminal law – stealing from a locked motor vehicle by opening by means of a key or other instrument – whether breaking window glass in order to open the vehicle amounts to opening by key or other instrument – Penal Code )cap 63) section 279 (g) - whether charge proper - whether lesser offence of theft disclosed.

The appellant was charged and convicted of the offence of stealing from a locked motor vehicle contrary to section 179 (g) of the Penal Code (cap 63).

The particulars of the offence however did not allege that in order to commit the offence the appellant opened the locked motor vehicle by means of a key or other instrument.

Instead they alleged that in order to commit the said offence he opened the motor vehicle in question by breaking the window glass.

The entire proceedings in the trial court concerned themselves with the appellant having broken into the motor vehicle in issue.

In convicting the accused the trial magistrate observed that he was convinced beyond any reasonable doubt that the accused broke into the vehicle of the complainant.

The High Court, on appeal, upheld the trial court’s conviction.

Held:

1. To open a locked motor vehicle by means of a key or other instrument requires the unlocking of the lock of such motor vehicle. Breaking any part of such motor vehicle in order to open it is not the same thing as opening it by means of a key or other instrument.

2. Breaking into the motor vehicle mentioned was not an ingredient of the offence with which the appellant was charged.

3. The aggravating circumstances of the theft under section 279 (g) for which the appellant was charged was the opening of the locked motor vehicle by means of a key or other instrument in order to commit that offence. This circumstance was neither charged nor proved against the appellant in the court of the first instance and his conviction could not be sustained.

4. Theft is a common factor to teh offences defined in sections 279(g) and 275 of the Penal Code. Section 279(g) however has the additional aggravating circumstances contained therein. The lesser offence of theft under section 275 had been established in this case but the aggravating circumstances necessary for an offence under section 279(g) had not been established.

Appeal allowed, appellant’s conviction substituted with a conviction for theft under the Penal Code section 275.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 275. 279(g)

2. Criminal Procedure Code (cap 75) sections 179(1), 361(4)

Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd

Court of Appeal, at Mombasa

November 17, 1989

Nyarangi, Masime & Kwach JJ A

Civil Appeal No 50 of 1989

(Appeal from an order of the High Court at Mombasa, Bosire J, in Admiralty Cause No 29 of 1988 dated 28th February, 1989)

Admiralty Law – admirality jurisdiction of the High Court Kenya – circumstances in which the jurisdiction can be invoked – Judicature Act (Cap 8), section 4 – Supreme Court Act, 1981 sections 20, 21.

Admiralty Law – goods supplied to a third party stored in a vessel –whether vessel owner incurs liability for the price of the goods – Supreme Court Act, 1981 sections 20, 21.

Injunction – ex-parte injunction – duty of applicant to make full and frank disclosure of material facts – consequence of non-disclosure of facts.

Caltex Oil, the respondent to this appeal, issued a writ in rem against the motor vessel Lilian S endorsed with a claim for Kshs 6,110,434/55 alleged to be due and owing from the owners of the motor vessel (the appellants).

The claim allegedly arose on account of a quantity of gas oil, fuel and bunkers supplied by Caltex. The writ was accompanied by a statement of claim and an affidavit to lead a warrant for the arrest of the vessel.

In the Bunker Delivery Report (BDR) a company called Southern Oil Supply Company (SOSCO) was named as the local agents for the owners of the ship and a copy of an invoice was directed to SOSCO and duly acknowledged by them as customers.

There was a contract whereby the respondent agreed to supply and SOSCO agreed to buy 550 metric tones of fuel oil and pursuant to that contract the respondent delivered 5, 478.55 metric tones of fuel oil on board the Lilian S as requested by SOSCO as a base for storing the fuel pending the sale and supply to other vessels. On the basis of these facts the ship was on the ex-parte application of Caltex ordered to be arrested.

The appellants being aggrieved applied for the setting aside of the ex-parte order. They contended that the owners of the motor vessel Lilian S,namely sea Guardian Company S.A of Panama, were not persons liable to the plaintiffs in an action in personam and that the persons who would in the circumstances of this care be liable in an action in personam to the plaintiff was SOSCO who were not the owners of the said motor vessel.

It was therefore submitted that as the gas fuel and bunker were not for use by the vessel, the court had no jurisdiction to entertain the application.

The trial court however declined to set aside the ex-parte order holding that from the facts averred an inference could be drawn that the gas oil and fuel was probably for use on the vessel.

Held:

1. Pursuant to section 4 of the Judicature Act (cap 8) of the admiralty jurisdiction of the High Court is exercised in accordance with the same procedure as in the High Court in England. That procedure is contained in the English Supreme Court Act, 1981 and more specifically in sections 20 and 21.

2. In order to maintain an action under section 20 (2) (m) of the 1981 Act, it is necessary to demonstrate a sufficiently direct connection between the agreement relied on and the operation of the ship.

3. The motor vessel was utilized as a base for storing the fuel oil before it was sold to other vessels. There was therefore no reasonably direct connection between the storage of the fuel oil and the operation and maintenance of the vessel.

4. Section 20 (20 (m) of the 1981 Act was not satisfied and so the claim did not fall under section 21(4). The High Court therefore did not have admiralty jurisdiction.

5. A question jurisdiction may be raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court.

6. It is axiomatic that in ex-parte proceedings there should be full and frank disclosure to the court of facts known to the applicant.

7. Failure to make disclosure may result in the discharge of any order made upon ex-parte application.

Appeal allowed.

Cases

1. River Rima, The [1987] 3 All ER 1, CA; (1988) 2 LG Rep 193, HL

2. I Congreso del Partido [1983] 1 AC 244; [1981] 3 WLR 328, HL; [1978] 1 QB 500; [1981] 2 All ER 1064

3. Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co & others [1985] AC 255; [1985] 1 All ER 129; [1985] 2WLR 74, HL

4. Evpo Agnic, The [1988] 1 WLR 1090; [1988] 3 All ER 810

5. Brink’s-MAT Ltd v Elcombe & others [1988] 3 All ER 188; [1988] 1WLR 1350 CA

6. “Abidin Daver”, The [1984] 1 Lloyd’s Rep 339; [1984] AC 398; [1984]2 WLR 196, HL

7. Schwarz & Co (Grain) v St Elefterio [1957] 1 Lloyds Rep 283; [1957]2 All ER 374; [1957] 2 WLR 935

8. Moschanthy, The [1971] 1 Lloyd’s Rep 37

9. Gulf Venture, The [1984] 2 Lloyd’s Rep 455

10. Andria, The [1984] QB 477; [1984] 1 All ER 1126; [1984] 2 WLR 570, CA

11. River Jimini, The (29 June 1984, unreported) Rotterdam District Ct

12. Reg v Kensington Income Tax Commissioners ex parte Princess Edmond de Polignac [1917] 1 KB 486 CA

13. Lloyd’s Bowmaker Ltd v Britannia Arrow Holdings PLC (Lavens Third Party) [1988] 3 All ER 178

Texts

1. Saunders, JB (1969) Words and Phrases Legally Defined London: Butterworths 2nd Edn Vol 3 p 113

2. Institute of Chartered Shipbrokers Staff, Shipbrokers Manual LLP Incorporated Vol I page 90 para 3

Statutes

1. Supreme Court Act 1981 [UK] sections 20, 20(1)(a), 20(2)(a-s), 21(4), 21(4)(b)

2. Rules of the Supreme Court 1988 [UK] order 7 rules 5, 5(4), 5(5), 5(9); para 9; order 75 para 75/1/3; order 12 rule 8

3. Administration of Justice Act 1956 [UK] section 3(4)

4. Judicature Act (cap 8) section 4

Advocates

Mr Inamdar for the Appellant.

Mr Satchu for the Respondent.

Ruben & 9 others v Nderito & another

Court of Appeal at Nairobi

November 9, 1989

Nyarangi, Gicheru & Kwach JJ A

Civil Application No NAI 182 of 1989

Civil Practice and Procedure – stay of execution - by Court of Appeal - Court of Appeal Rules rule 5(2)(b) - principles by which the court is guided - nature of the Court’s jurisdiction under that rule - application for stay not to be treated as an appeal from the decision of the High Court.

The applicants who unsuccessfully sought an injunction against the respondents in the High Court, filed the present application in the Court of Appeal.

They sought a stay of the order dismissing their application and to restrain the respondents from turning their plot, which was located in the same neighbourhood as them, from residential to commercial use, pending the hearing and determination of their intended appeal.

The applicant’s contention was that developments to plots in the neighbourhood of Rossyln Estate were restricted to residential use only.

They relied on a restrictive covenant which formed part of conditions of purchase of property in the area.

The respondent however contended that the covenant was outdated and was intended to create and preserve a European colony or ghetto.

Held:

1. In dealing with applications under rule 5(2)(b) of the Court of Appeal Rules the Court of Appeal exercises original jurisdiction.

2. Once the applicant is properly before the court, the court has jurisdiction to grant an injunction or make an order for a stay on such terms as the court may think just.

3. This exercise does not constitute an appeal from the trial judge’s discretion to the Court of Appeal.

4. In such an application, the applicant must show that the intended appeal is not frivolous, or, he must satisfy the court that he has an arguable appeal. Secondly, it must be shown that the appeal, if successful, would be rendered nugatory.

5. It had been shown that the appeal raised a serious question for submission to the Court of Appeal and there was a very real possibility of the appeal beign rendered nugatory if the reliefes sought by the plaintiffs are not granted.

6. The Court would not require the applicants to give an undertaking in damages. They were exercising their undoubted right of appeal and that right was not to be fettered by the imposition of such a draconian measure.

Application allowed.

Cases

Githunguri v Jimba Credit Corporation Ltd [1988] KLR 83

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 5(2)(b); 74

2. Civil Procedure Rules (cap 21 Sub Leg)

Advocates

Mr Ibrahim for the Defendants.

Makala Mailu Mumende v Nyali Golf & Country Club

Court of Appeal, at Mombasa  

 November 7, 1989

Gachuhi, Nyarangi & Gicheru JJ A

Civil Appeal No 16 of 1989

(An appeal from the Judgment of the High Court at Mombasa, Bosire J, dated 24th November 1988 in Civil Case No 43 of 1988)

Employment Law – duty of employer – duty to make conditions of work for employee safe – failure of employer to provide safe working conditions - liability of employer for damage suffered by employee.

The defendant at the material time had employed the plaintiff as a guard. On employment the plaintiff had been issued with a rungu, a torch and whistle. He had not been provided with a helmet although his trade union had earlier suggested that the plaintiff and his workers be provided with helmets. In the course of his employment with the defendant and while guarding a bar at the Nyali Golf Club he was attacked by a gang of thugs and seriously injured.

Held:

1. It is an implied term of employment that an employer will make the conditions of employment to his employee absolutely safe and will not expose his employees to any danger to avoid any negligence but will not be responsible of the employee’s own negligence in execution of such employment.

2. The employer was aware of the danger that the employee was subjected to and it failed to do what was required of it and for that reason it was negligent.

3. Just because an employee accepts to do a job which happens to be inherently dangerous is no warrant or excuse for the employer to neglect to carry out his side of the bargain and ensure the existence of minimum reasonable measures of protection.

4. In measuring the degree of care one must balance the risk against the measures necessary to eliminate the risk.

Appeal allowed.

Cases

1. Harris v Brights Asphalt Contractors Ltd [1953] 1 QB 617; [1953] 1 All ER 395; [1953] 1 WLR 341

2. Smith v Baker & Sons [1891] AC 325; [1891-4] All ER Rep 69; LJ QB 683; 65 LT 467

3. Wilsons and Clyde Coal Co Ltd v English [1938] AC 57; 101 SJ 670; [1937] 3 All ER 628

4. Watt v Hertfordshire County Council [1954] 2 All ER 368; [1954] 1 WLR 835; 98 SJ 372; 104 LJ 503

Texts

Hailsham, Lord et al (eds) (1976) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XVI

Statutes

Judicature Act (cap 8) section 3(2)

John Stelen Ole Mwenda v Republic

Court of Appeal at Nakuru

November 4, 1989

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 51 of 1988

(Appeal from a judgment of the High Court at Nakuru (Tunoi J) in High Court Criminal Appeal No 232 of 1986 dated 17th July, 1987)

Evidence – identification evidence – how court should treat such evidence before basing a conviction on it – dock identification – identification ofaccused in court – no previous identification parade conducted – whether accused’s identification sufficient to support conviction.

The appellant and three others were convicted of robbery contrary to section 296 (2) of the Penal Code (cap 65). They were alleged to have robbed the driver of a bus and his passenger on the night of October 24, 1984 at Elementaita Junction on the Nairobi – Nakuru road.

The appellant, whose appeal to the High Court was dismissed, appealed to the Court of Appeal raising the issue of his identification as one of the robbers. He had previously raised this issue both at the trial court and the High Court claiming that the prosecution witnesses were made to see him in the cells prior to testifying against him. Further the police did not conduct any identification parade prior to court appearance.

Held:

1. Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused, special need for caution before convicting in reliance on the correctness of the identification is necessary.

2. Recognition might be more reliable than identification of a stranger but even then the courts should remind itself that mistakes in recognition of close relatives and friends have been made sometimes.

3. The practice of inviting a witness to identify a defendant for the first time when the defendant is in the dock is undesireable. Here the appellant complained that prosecution witnesses were made to see him before they continued their testimony in the course of trial.

4. The witnesses who were allegedly made to see the appellant had not previously identified him at an identification parade and no sufficient evidence was given to show why no parade was held.

5. The identification evidence was tainted and the appellant’s conviction was unsafe.

Appeal allowed.

Cases

1. Republic v Cartwright (1914) 10 Cr Appeal R 219

2. R v Turnbull & others [1976] 3 All ER 549; [1976] 3 WLR 445; [1977] QB 224; (1976) 63 Cr App R 132

Statutes

Penal Code (cap 63) section 296(2)

Peter Mburu Kangethe v Republic

Court of Appeal, at Nairobi

 November 3, 1989

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 74 of 1989

(Appeal from a conviction and sentence of the High Court at Nairobi, Osiemo J, dated 5th September 1988 in Criminal Case No 29 of 1988)

Criminal Practice and Procedure – plea - accused persons pleading guilty to a charge while facts do not support the offence charged – whether subsequent conviction proper.

Criminal Practice and Procedure – statement of facts – prosecution tendering post-mortem report as part of statement of facts of the offence without reading contents to the accused– whether proper.

The accused was initially charged with the offence of murder which he denied and was remanded in custody. He however later on through his counsel informed the court that he intended to plead guiltly to a lesser charge of manslaughter.

Although the court record itself did not contain the new charge the court recorded that the charge had been read and explained to the accused which he admitted.

The statements of facts however merely stated that the accused who had been previously quarrelling with his wife later on in the night asked for help to take his wife to hospital as she had been injured.

The court however observed that neither stated that the accused fought with the deceased nor that the accused who had inflicted the injuries.

The post mortem report was produced as part of the statement of facts read to the accused.

Held:

1. The statement of facts as narrated to the court and admitted by the appellant to be correct, did not disclose and could not support a conviction for the offence of manslaughter.

2. As the facts did not disclose the offence charged the judge should have declined to enter a conviction for manslaughter.

3. The practice of putting in the post mortem report as part of the statement of facts narrated to the court by the prosecutor is to be discouraged.

4. The prosecution should obtain therefrom all the relevant facts and incorporate them in the statement of facts.

Appeal allowed.

Cases

Wachira, Daniel Karanja v Republic Criminal Appeal No 181 of 1988

Statutes

Penal Code (cap 63) section 204