In Re Al-Moody (A Debtor)

High Court, at Mombasa December 15, 1989

Githinji J

Bankruptcy Cause No 4 of 1989

Bankruptcy — presentation of a petition by debtor to evade committal order — not an abuse of court process — debtor entitled to use machinery of Bankruptcy as a shield.

This was debtor’s petition which pleaded that he was unable to pay his debts and requested that a receiving order in respect of his estate be made and that he be judged bankrupt.

Held:

1. The mere paper presentation of a petition by the debtor to evade a committal order is not an abuse of the process of the court.

2. A debtor is entitled to use the machinery of the Bankruptcy Act for his own purpose so as to shield himself from further liability to committal or other harassment.

3. There is a limit to a debtor’s immunity and if it appears as a fact that a debtor is on the habit of filing bankruptcy petitions to get rid of his liabilities so as to defraud the creditor, he ought not be protected by the Bankruptcy Act.

4. If a petition is proper and is not an abuse of the process of the court, it is imperative that the court should make a receiving order.

Petition Dismissed.

Cases

1. Re Betts Ex Parte Official Receiver [1901] 2 KB 39

2. Re a Debtor (No 17 of 1966) [1967] 1 All ER 668

3. Re Bond (1888) 21 QBD 17

Texts

Hailsham, Lord et al (Eds) (1973) Halsbury’s Laws of England London:

Butterworths 4th Edition Vol III p194 para 324

Statutes

1. Bankruptcy Act (cap 53) sections 81(1), 16, 16(1), 102

2. Bankruptcy Act 1869 [UK] section 8

Advocates

Mr Ogola for the Petitioner.

Masulal Maganlal Rawal v Maneklal Maganlal Rawal

High Court, at Mombasa November 22, 1989

Bosire J

Civil Case No 128 of 1962

Limitation of Actions – estoppel from pleading limitation instances – point in limine – nature of – object of limitation enactment – application to add legal representative filed out of time – powers of court in dealing with such application.

This was an application by the defendant for orders, inter alia, that the suit had, by the time the order by consent was made, abated or in the alternative the plaintiff was not the proper legal representative of the original plaintiff and therefore not entitled to continue with the suit. It was contended on behalf of the plaintiff that the defendant having earlier consented to substitution of the plaintiff he thereby waived his right to rely on limitation under O XXIII of the Civil Procedure Rules by dint of the provisions of section 39 (1)(b) of the Limitation of Actions Act.

Held:

1. It is a trite law that a point in limine must be one which when accepted avoids the necessity of the hearing of a matter pending determination.

2. By dint of O XXIII rules 3(2) Civil Procedure Act, at the expiry of 12 months after the death of a sole plaintiff in a suit, a vested right accrues to the defendant to rely on the defence of limitation if no application is brought to substitute the plaintiff.

3. The object of any limitation enactment is to prevent a plaintiff from prosecuting state claims on the one hand and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time.

4. Where an application to add legal representatives is filed after the period of limitation has expired, the court may either set aside the abatement by getting an application filed for the purpose and the substitute the legal representative, or in exceptional cases, even treat the application as one to set aside the abatement and pass necessary orders thereon.

5. Where such application is allowed without objection, the time will be deemed to have been extended and the legal representatives to have been properly brought on the record.

Application disallowed.

Cases

Mehta v Shah [1965] EA 321

Texts

Chitaley & Rao, AIR Commentaries on the Code of Civil Procedure 6^th Edn Vol III p 3424

Statutes

1. Civil Procedure Act (cap 21) section 3A

2. Civil Procedure Rules (cap 21 Sub Leg) order XXIII rules 3(1), (2), (5); 8

3. Limitation of Actions Act (cap 22) section 39(1)(b)

4. Civil Procedure Code [India]

Advocates

Mr S Gautama, Mr KM Pandya & Mr B Patel for the Plaintiff.

Mr Nagpal & Mr NM Doshi for the Defendant.

Mwasi v Republic

High Court, at Mombasa

 November 17, 1989

Bosire & Githinji JJ

Miscellaneous Criminal Application No 64 of 1989

Sentencing – forfeiture – order of forfeiture of money recovered from accused person on suspicion of offence – circumstances in which forfeiture will be ordered.

Criminal Practice and Procedure – forfeiture of accused person’s property – application to restore forfeited property invoking Customs and Excise Act (cap 472) section 196 and Civil Procedure Act (cap 21) section 3A – whether application competent.

The applicants, who were initially convicted by magistrates court of the offence by stealing by persons employed in the public service contrary to section 280 of the PenalCode (cap 63), successfully appealed against their conviction. However the High Court declined to interfere with a forfeiture order of sums of money which were recovered from the appellants. They were nevertheless granted liberty to bring proper proceedings for the return the money to him.

The applicant brought the instant application in reliance on the Court’s direction. The application was purportedly brought under section 196 of the Customs and Excise Act (cap 472) and section 3A of the Civil Procedure Act (cap 21).

During the trial the applicant alleged that the money found in their possession was given to him by one Maulana who was their colleague at work and who was still at large. In their appeal, the applicants did not attack the forfeiture order.

Held:

1. None of the sections of law on which the application was grounded were relevant. Section 196 of the Customs and Excise Act dealt with forfeitures under the relevant Act and of goods which would ordinarily be liable to forfeiture under the act.

2. Section 3A of the Civil Procedure Act saves the inherent jurisdiction of the courts to make such orders as may be necessary in the exercise of its civil jurisdiction under that Act.

3. The Court in the instant matter was being asked to invoke its civil jurisdiction in proceedings of criminal nature. That was not procedurally correct. The application was fatally defective and incompetent.

4. The fact of an acquittal does not automatically entitle an accused person to the restoration to him of properties which were recovered from him on suspicion that they had been stolen.

5. Forfeiture is a penalty. However, it can only be treated as a penalty where the evidence clearly shows that the property forfeited belongs to the accused. This was not a proper case for ordering restoration without a proper investigation of the issue of ownership.

Application struck out.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 280

2. Customs and Excise Act (cap 472) section 196

3. Civil Procedure Act (cap 21) section 3A

4. Criminal Procedure Code (cap 75) section 354

Maina v Republic

High Court, at Mombasa

October 24, 1989

Bosire J

Criminal Appeal No 60 of 1989

(From original conviction and sentence of the Resident Magistrate’s Court at Voi N. O. Masara Esq Ag RM) in Criminal Case No 141 of 1989

Criminal Practice and Procedure – plea – accused person pleading guilty to the charge and facts in support thereof but making a statement exonerating himself in mitigation – whether court has power to change plea to not guilty – when court becomes functus officio.

Criminal Practice and Procedure – functus officio – point at which a criminal trial court becomes functus officio – convicted person negating his plea of guilty in his mitigation before sentencing – whether court had become functus officio – whether court could proceed to sentencing.

The appellant was convicted upon his own plea of guilty and fined Kshs 18,000 for the offence of being in possession of uncustomed goods contrary to section 185(d) (iii) of the Customs and Excise Act (cap 472). On appeal he contended that his plea of guilty was equivocal and that therefore the conviction was improper.

During the trial, the charge and every element of it had been explained to him and he had admitted it. The prosecution had adopted the particulars of the charge as the summary of facts in support of the charge which were re - read to the appellant which he admitted he understood and confirmed were true.

However in mitigation, the appellant had pleaded for mercy adding that he had bought the goods in issue in an open-air market.

The question on appeal therefore was whether the statement made in mitigation negated his plea of guilty.

Held:

1. The court must have judicial discretion to allow a change of plea before it has finally disposed of the case

2. Criminal Procedure Code (cap 75) lays down provisions and procedure to see that justice is done, and justice cannot be effected if a plea of guilty is entered as a result of ignorance or misunderstanding.

3. A magistrate’s court becomes functus officio when the court disposes of a case by verdict of not guilty or by passing sentence or making some order finally disposing of the case.

4. It then followed that if the words of the appellant did amount to a negation of his plea of guilty, the trial magistrate could not validly proceed to sentence.

5. The words of the appellant that he bought the shoes from an open market did not per se show the shoes were not uncustomed to his knowledge and that he was an innocent purchaser.

Appeal on conviction dismissed.

Cases

Kamundi v Republic [1973] EA 540

Statutes

1. Customs and Excise Act (cap 472)sections 185(d)(iii); 196(c)

2. Criminal Procedure Code (cap 75) section 348

Advocates

Mr Gakuhi for the Appellant.

Mr Metho for the Republic.

Malingi Katana Malingi v Republic

High Court, at Mombasa

October 13, 1989

Bosire J

Criminal Appeal No 364 of 1989

Evidence – doctrine of recent possession – foundation and meaning of the doctrine – nature of the presumption raised by the doctrine – shift of burden of proof – duty of accused person to rebut presumption – Evidence Act (cap 80) section 119

Evidence – finding of a court – finding based on the credibility of witnesses – circumstances in which an appellate court will interfere with such a finding.

The appellant was convicted of the offence theft of stock and sentenced to twenty months imprisonment.

His conviction was based on his alleged possession of one goat a few hours after it had been stolen from the owner.

The appellant appealed against his conviction and sentence contending that the evidence was at variance with particulars of the offence and that the doctrine of recent possession was improperly invoked.

Held:

1.The doctrine of recent possession is one of fact and it arises under section 119 of the Evidence Act (cap 80).

2.With respect to the offence of theft or handling, recent possession raises a presumption of fact that the one in possession is either the thief or guilty receiver.

3. By application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about.

4. The accused can only be asked to explain his possession after the prosecution has proved certain basic facts.

5. The doctrine being a presumption of fact is a rebultable presumption.

The accused person is called to offer an explanation in rebultal which if he fails to do an inference is drawn that he either stole it or was a guilty receiver.

6. A finding based on the credibility of witnesses can only be assailed by an appellate court where it is clear that no reasonable tribunal could make such a finding or the finding is clearly wrong.

Appeal dismissed.

Cases

1. Rex v Hassani s/o Mohamed (1948) 15 EACA 121

2. Jethwa & Another v R [1969] EA 459

3. R v Oyier [1985] KLR 353

Statutes

1. Penal Code (cap 63) section 278

2. Evidence Act (cap 80) section 119

Advocates

Mr Wahome for the Appellant

Mr Metho, Principal State Counsel, for the Respondent.

Peter Mwan’gombe Mwakima & 3 others v Republic

High Court, at Mombasa

 October 13, 1989

Bosire J

Criminal Appeals No 41, 42, 43 & 44 of 1989 (Consolidated)

(Appeals from conviction and sentence of the Resident Magistrate’s Court at Voi (N O Masara, Esq) in Criminal Case No 736 of 1988)

Criminal Law – possession of unauthorized measuring instrument – presumption of use for trade purposes – onus on the possessor to prove contrary – Weights and Measurements Act section 29 – how burden of proof discharged – standard of proof applied.

Evidence – burden of proof – in criminal cases – instances in which the law places the burden on the accused person – how burden of proof is discharged – standard of proof in such instances – whether proof beyond reasonable doubt or proof on a balance of probabilities - Weights and Measures Act section 29.

The appellants in this consolidated appeal were separately charged with the offence of having in their possession for use for trade purposes a weighing instrument not authorised by the Weights and Measures Act.

They were convicted and sentenced to pay Kshs 10,000 or nine months in prison in default.

During the trial, it was conceded by the prosecution that the offending instruments were not in use, were of a capacity of 50 and 90 Kilogrammes respectively and that the shop owners were not present during the seizure.

The accused persons’ explanation for the presence of the offending instruments was that they were for internal accounting used mainly to weigh bulk meat bought by the butcher from the slaughter house.

The trial magistrate ignored the explanation and construed the provisions of Section 29 strictly as placing the burden of proof beyond reasonable doubt on the appellants. The magistrate did not consider the appellants’ explanation to see if it rebutted the legal presumption of guilt.

Held:

1. Section 29 of the Weights and Measures Act places the burden on an accused found in possession to explain that the instrument he is found with is not for trade.

2. Where the law places a burden on an accused to prove, it has never been, unless the law clearly says so, as high as always is on the prosecution to prove a criminal charge beyond any reasonable doubt.

3. The trial magistrate erred in holding that the duty placed on the accused by the section was to explain beyond reasonable doubt that the instrument was not for use in trade.

4. The possession raised a presumption and the duty of the accused was to rebut the presumption by demonstrating on a balance of probabilities that the instrument was not for use for trade purposes.

Appeal allowed.

Cases

No cases referred to.

Statutes

Weights and Measures Act (No 18 of 1987) sections 20, 29, 63

Elkata v Republic

High Court, at Mombasa October 6, 1989

Githinji J

Criminal Appeal No 161 of 1988

(From original conviction and sentence of the Resident Magistrate’s Court, MM Muya, Esq, RM in Criminal Case No 16 of 1988)

Criminal Practice and Procedure – confession – recording of a confession - language in which such statements should be recorded – where an accused person complains that he did not understand the language used – courts’ attitude towards such complaints.

The appellant was convicted of stock theft by the Resident Magistrate’s court. The prosecution relied on a confession made to the police and recorded in English. According to the Police Officer who took the confession, the appellant made the statement in Kiswahili which he (the appellant) understood very well.

The appellant, however, gave evidence in cross-examination in a trial within a trial that he was unable to understand Kiswahili and that though the statement was read to him, he understood very few words.

Held:

1. Statements made by an accused person must be recorded in the language he speaks.

2. Courts do not take lightly the complaint by an accused person that he did not understand the language used.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 278

Mwero v Republic

High Court, at Mombasa

October 1989

Bosire J

Criminal Appeal No 55 of 1988

(Appeal from the original conviction and sentence of the Resident Magistrate’s Court at Mombasa, (I. Indeche Esq SRM) in Criminal Case No 1027 of 1987 )

Evidence – recognition–– where assailants known to witness – where conditions exist to minimize ease of identification.

Criminal Practice and Procedure – charges – joinder of charges - suspect charged with robbery - suspect also charged with additional independent counts of asault with respect to the same transaction - whether chage proper.

The appellant and his co-accused had been charged, tried and convicted on three counts, i.e. robbery, causing grievous harm and assault. The appellant was sentenced to concurrent prison terms, corporal punishment and thereafter police supervision for 5 years. All three complainants testified that they recognised their attackers who were well known to them. The appellant adduced evidence of factors inhibiting identification such as the fact that the alleged offences was committed at night time under poor light.

Held:

1. Ample evidence existed of factors which facilitated correct identification of the appellant. The complainants knew their attackers well and were together for some time during the course of the attack. The complainants therefore had ample time to study the attackers coupled with the fact that an argument ensued between the appellant and one of his witnesses.

2. The appellant and his co-accused were improperly additionally charged with two assault counts as separate and independent counts. The mens rea in the acts of assault is for the offence of robbery and if the assault counts are treated independent of the robbery count, the accused was likely to be exposed to double jeopardy.

3. There is no requirement that where the force applied in a robbery affects more than one person, then assault of the second and subsequent persons should be made the subject matter of seperate counts. If anything, the assault counts could be charged in the alternative.

4. Although the appellant had been improperly charged with the two counts of assualt seperately, his convictions in them would be affirmed because they were lesser cognate offences to the offence of robbery.

5. The intent of both accused was not to rob.

Conviction for robbery quashed and substituted with conviction for common assault.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 29(1); 234, 250, 251, 296(1)

2. Criminal Procedure Code (cap 75) sections 135, 139

Abdulsalam Alimohamed & 2 others v Ali Kawil

High Court, at Mombasa September 8, 1989

Githinji J

Civil Case No 104 of 1989

Civil Practice and Procedure – contempt of court – disobedience of a court’s order of a stay - whether an application for contempt can be made orally by way of Notice to show cause – Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rule 9.

The plaintiff who obtained summary judgment against the defendant demolished the suit premises despite the fact that the court had granted a stay of execution in favour of the defendant.

The defendant’s counsel therefore applied for notice to issue against the plaintiff to show cause why he should not be committed for contempt of court. The application was however opposed by the plaintiff’s counsel who argued that the order could not be granted without a formal application.

Held:

1. Order XXXIX rule 9 of the Civil Procedure Rules provides that applications in cases of disobedience of injunctions shall be made by summons in chambers

2. There is no provision in order XXI of Civil Procedure Rules empowering the court to issue a Notice to show cause why a person in breach of an order should not be committed to prison.

3. Whether an order for committal is being sought to aid the applicant or the authority of the court sufficient evidence must be put before the court and the procedure of a notice to show cause is incapable of being a just and effective instrument.

Application dismissed.

Cases

1. Mandavia (GR) v Singh [1962] EA 730

2. Laroya v Mityana Staple Cotton Co Ltd [1958] EA 194

3. Gupta Sea Tours Ltd v South Coast Hotels Ltd & another Mombasa High Court Civil Case No 364 of 1988

4. Jennison v Baker [1972] 1 All ER 997; [1972] 2 WLR 429; [1972] 2 QB 52; (1971) 115 SJ 930

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXI; order XXI rule 35; order XXXIV rule 2; order XXXIX rule 9

2. Rules of the Supreme Court [UK] order 52 srule 4, 5

3. Judicature Act (cap 8) section 5(1)

Advocates

Mr Asige for the Defendant.

Mr Satchu for the Plaintiff.

Republic v Mukawa & 2 others

High Court, at Mombasa

September 1989

Bosire J

Criminal Case No 24 of 1988

Evidence – contradictory evidence of a witness – how court should treatsuch evidence – whether a witness who gives such evidence is wholly unreliable.

Evidence – identification evidence – evidence of a single witness – how court should treat such evidence – need for corroboration of such evidence.

The accused persons were a father and his two sons and they were charged with murder contrary to section 204 of the Penal Code (cap 63).

They were alleged to have murdered one Abdalla shortly after he had had illicit sexual intercourse with Sofia, who was a wife to another son of the 3rd accused.

The prosecution’s evidence was principally based on the identification evidence of Sofia.

However, Sofia had given contradictory versions of the circumstances of Abdalla’s death both to the police investigators and to the court.

The appellants appealed against their convictions.

Held:

1. A witness may be believed in one aspect and yet disbelieved in another. Though there may be contradictions in the testimony, the court may believe the witness in some other material particular.

2. It did not therefore follow that since PW2 contradicted herself in some particulars then she was wholly an unreliable witness. Her evidence was to be considered in the light of the existing circumstances and together with the other evidence.

3. The prosecution’s case was substantially based of evidence of identification at night by a single witness. Where such is the case, the evidence must be tested with the greatest care.

4.The court would not act on PW2’s evidence per se to found a conviction. Corroborative evidence was necessary and there was no other independent evidence connecting or tending to connect the accused persons to the offence.

5. The reports which an identifying witness first gives to the police is significant in testing the identification of the accused by the witness in subsequent legal proceedings.

Cases

1. Kartar Singh Bharaj & another v Republic (1953) 20 EACA 134

2. Abdallah bin Wendo & another v Reginam (1953) 20 EACA 166

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

4. Republic v Mohamed Bin Allvi (1942) 9 EACA 72

Statutes

Penal Code (cap 63) section 204

Advocates

Mr Metho for the Republic.

Mr Wahome for the 1st Accused.

Mr Swaleh for the 2nd Accused.

Mr Obonyo for the 3rd Accused.