Mwaniki v Republic

Court of Appeal, at Kisumu

August 14, 1989

Nyarangi, Gicheru & Kwach JJ A

Criminal Appeal No 62 of 1989

(Appeal from the judgment of the High Court at Kisumu, Omolo J, dated 4th May 1989 in High Court Criminal Appeal No 8 of 1989)

Evidence – confession – accused making a confession to a police sergeant – confession subsequently taken with account in convicting the accused – whether conviction proper – section 25 and 28 Evidence Act (cap 80) sections 25, 28.

The appellant, who was convicted of theft and forgery, in a magistrate’s court, lost his first appeal in the High Court. He filed this second appeal in the Court of Appeal.

His main contention was that the extra-judicial statement allegedly made by him admitting the charges could not be proved against him because they amounted to a confession which under the Evidence Act (cap 80) section 28(b) should have been made in the presence of a police officer of or above the rank of Inspector.

The state, however, contended that the statements were made in police custody under caution and they were not confessions.

Held:

1. The Statements made by the appellant taken together with other evidence, reasonably lead to an inference that the appellant had committed the offence.

2. Clearly, the statements amounted to a confession and that being the case, on the basis of section 28 (b) of the Evidence Act the material statements ought to have been excluded in the consideration whether or not the prosecution had proved its case beyond reasonable doubt.

3. There was no other evidence in support of the conviction of the appellant.

Appeal allowed.

Cases

No cases referred to.

Statutes

Evidence Act (cap 80) sections 25, 28(b)

Advocates

Mr Muhia for the Appellant

Mr M Bwonwonga, Principal State Counsel,for the Respondent

Osiwa v Republic

Court of Appeal, at Kisumu

 June 23, 1989

Masime JA, Gicheru & Kwach Ag JJ A

Criminal Appeal No 52 of 1989

(Appeal from a judgment of the High Court at Kisumu (Mukele, CA) dated 2nd November 1988 in Criminal Appeal No 86 of 1987)

Evidence – identification and recognition evidence – where such evidence the only evidence against accused person – how court should treat such evidence before basing conviction on it.

Criminal Practice and Procedure – alibi – accused person pleading an alibi – accused person not to be under burden to prove his alibi.

The appellant was convicted of the offence of robbery contrary to section 296 (1) of the Penal Code (cap 63) in a Magistrate’s Court and sentenced to four years’ imprisonment, four strokes of corporal punishment a five years post-jail term police supervision.

His first appeal to the High Court was dismissed and he filed this second appeal.

At his trial the appellant had set up an alibi defence and raised the issue of his identification.

The complainant testified that as he was riding his bicycle on the material day the appellant with others caused him to swerve into a ditch from where he heard the appellant shout to his colleagues to cut him with a panga. He managed to get up and ran away and as he was doing so he claimed he looked back and saw the appellant who he said he had seen him about seven times earlier.

No identification parade was called to identify the appellant after he was arrested some six months later.

Held:

1. Where the only evidence against an accused is, as here, evidence of identification or recognition, a trial court must examine such evidence carefully to be satisfied that the circumstances of the identification are favourable and free from possibility of error before it can safely make it the basis of a conviction.

2. The failure by the prosecution to call a convict whose statement had implicated the appellant and led to his arrest meant that the prosecution failed to link the appellant with the offence.

3. The trial magistrate had ignored the appellant’s defence of alibi and the High Court had erroneously shifted the burden of proving the alibi to the appellant. An accused person who pleads an alibi assumes no burden to prove it.

Appeal allowed.

Cases

1. Wamunga v Republic [1989] KLR 424

2. Republic v Caleb Nyaoke Chama Criminal Case No 80 of 1986

3. Leonard Aniseth v Republic [1963] EA 206

4. Ssentale v Uganda [1968] EA 365

Statutes

Penal Code (cap 63) section 296(1)

Nyadenga v Republic

Court of Appeal, at Kisumu

 June 22, 1989

Masime JA, Gicheru & Kwach Ag JJ A

Criminal Appeal No 84 of 1988

Criminal law - preparation to commit a felony - Penal Code (cap 63) section 308(1) - ingredients of the offence - how offence charged – accused found in possession of panga and rungu - charge not stating whether the weapons were “dangerous or offensive” - whether charge disclosed an offence - whether conviction proper.

Criminal Practice and Procedure - charge - form of charge - omission of an ingredient of the offence in the charge - whether such charge discloses an offence whether a conviction based on such charge can stand.

The appellant was tried and convicted of the offence of preparation to commit a felony contrary to section 308(1) of the Penal Code (cap 63).

He was alleged to have been found in possession of a panga and a rungu at night with intention to commit a felony. The particulary of the charge however did not specify whether the panga and rungu were dangerous or offensive weapons.

Held:

1. An accused person commits the offence of preparation to commit a felony under section 308(1) of the Penal Code (cap 63) if he is found, first, to be armed with a dangerous offensive weapon, and secondly, in circumstances indicating that he was so armed with the intention of committing a felony.

2. These ingredients of the offence under section 308 (1) of the Penal Code must be specified. Any omission of any one of these ingredients will render the charge for such offence defective to the extent that it discloses no offence.

3. If such charge is not sufficiently amended, on appeal, a conviction thereon will be quashed.

4. The words “dangerous or offensive weapon” contemplates the weapon being used to cause peril or intended for or used in attack.

5. A panga and a rungu are not per se dangerous weapons but can be used to inflict injuries on people. The failure to indicate in the particulars of the offence that the panga and rungu were either dangerous or offensive weapons amounted to an omission of one of the ingredients of the offence.

6. The omission of that ingredient plus the failure to lead evidence to show that those weapons were either dangerous or offensive made the charge totally defective. The charge disclosed an offenec and the conviction arising from it could not stand.

Appeal allowed.

Cases

Matu s/o Gichimu v Republic [1951] EACA 311

Statutes

Penal Code (cap 63) section 308(1)

Wamunga v Republic

Court of Appeal, at Kisumu

 June 22, 1989

Masime JA, Gicheru & Kwach Ag JJ A

Criminal Appeal No 20 of 1989

(Appeal from the judgment of High Court at Kisumu, Mukele CA, dated 15 June 1988 in High Court Criminal Case No 561 of 1986)

Evidence – identification – complainant claiming to have identified the appellant under torch light –whether such identification sufficient.

Evidence – recognition – recognition more reliable than identification.

Evidence - identification – appellant allegedly identified as one of the attackers and reported to the police- whether arrest five days later made his identification unrealiable.

The appellant and five others were arrested and charged with nine counts of robbery. At the conclusion of the trial all but one of the accused were convicted.

All the five appealed to the High Court and two of the appeals were allowed and the other three including the appellant’s were partially dismissed.

The appellant appealed to the Court of Appeal on the dismissed counts contending that the evidence on which he was convicted was unreliable.

He argued that the offence having taken place at night and the only available form of lighting being torches his identification as one of the assailants was unreliable.

Besides, despite the fact that the complainant and some of the prosecution witnesses alleged that the appellant was a neighbour and a report of his involvement in the robbery was made to the authorities, he was not arrested until some five days later.

Held:

1. Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.

2. Recognition may be more reliable than identification of a stranger but mistakes in recognition of close relatives and friends are sometimes made.

3. The robbery in the present case was committed at night and the only form of lighting were torches carried and flashed by the robbers, all the victims were woken up from sleep in their respective houses.

4. If the appellant had been seen among the robbers and reported as alleged it is not unlikely that he would have remained at large for another five days before being arrested.

5. The identification evidence upon which the appellant’s conviction on counts 1 and 2 was based had not been shown to have been free from the possibility of error. There was therefore no evidence upon which that conviction could be supervised.

Appeal allowed.

Cases

1. R v Turnbull & others [1976] 3 All ER 549; [1976] 3 WLR 445; [1977]

QB 224; (1976) 63 Cr App R 132

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

Statutes

Penal Code (cap 63) section 296(1)

Editorial Note

Penal Code section 296(1) deleted in part by act no 5 of 2003.

Ako v Special District Commissioner Kisumu & another

Court of Appeal at Kisumu

June 19, 1989

Nyarangi, Gachuhi JJ A & Kwach Ag JA

Civil Appeal No 27 of 1989

(Appeal from the Ruling of the High Court at Kisumu, Omolo J, in High Court Miscellaneous Application No 56 of 1986 dated 30th March 1986)

Judicial review – leave to apply for certiorari – time within which application for leave should be made – Law Reform Act (cap 26) section 9(3) – whether time bar absolute – whether time can be extended under the Civil Procedure Rules.

Civil Practice and Procedure – extension of time – judicial review proceedings – application for leave to apply for certiorari – time for bringing such application prescribed by the Law Reform Act (cap 26) section 9(3) – whether the time bar is absolute – whether the time can be extended under the Civil Procedure Rules order XLIX rule 5.

The issue before the court was whether the time prescribed by the Law Reform Act (cap 26) for bringing an application for leave to apply for an order of certiori.

Held:

1. It is plain that under sub-section (3) of section 9 of the Law Reform Act (cap 26) leave shall not be granted unless application for leave is made inside six months after date of judgment.

2. The prohibition is statutory and absolute and is not therefore challengeable under procedural provisions of the Civil Procedure Rules, more specifically order 49 rule 5 which makes provision for the enlargement of time.

Application refused.

Cases

Mahaja v Khutwalo [1983] KLR 553

Statutes

1. Law Reform Act (cap 26) section 9(3)

2. Civil Procedure Rules (cap 21 Sub Leg) order XLIX rule 5

3. Rules of the Supreme Court [UK]

Advocates

Mr Oketch for the Appellant.

Yalwala v Indumuli & another

Court of Appeal, at Kisumu

March 14, 1989

Nyarangi, Masime JJ A & Gicheru Ag JA

Civil Appeal No 69 of 1987

(Appeal from the judgment of the High Court at Kakamega, Aganyanya J, in HCCA No 90 of 1985, dated 31st July 1986)

Civil Practice and Procedure – Service of Court Process – service of summons to enter appearance – personal service best mode of service.  service on an adult member of the family – circumstances in which such service will be allowed – duty of process server to endeavour to find the defendant – Civil Procedure Rules order V rule 9, 12.

The plaintiff sued the defendant claiming that the defendant had fraudulently converted a contract in his name thus making him the only person contractually entitled to receive proceeds of the sale of sugar– cane which they had jointly planted.

The defendant neither entered any appearance nor filed a defence in time and as a result interlocutory judgment was entered followed by a formal proof and a judgment after the proof.

The defendant applied for the setting aside of the ex-parte judgment contending that summons to enter appearance was given to his son who did not hand it to him.

The trial court was not persuaded by the defendant’s contention and neither was the High Court on first appeal. The matter came before the Court of Appeal.

Held:

1. Service of process is so crucial a matter in litigation that courts must encourage the best service i.e personal service.

2. Before a process server can be heard to say that personal service was not practicable, he must make more than one attempt to effect such service for where service is made on an adult member of the defendant family who is residing with him, such service is valid only where there is reasonable ground to believe that such a defendant cannot be found.

3. Service on an adult member of the family of the defendant who is residing with him should take account of which member of the family would ensure that the summons reach the defendant in time.

4. A married adult male child would have his own house within the defendant’s homestead and in those circumstances he may not be reasonably expected to meet his defendant father as often or as easily as Order 5 rule 12 of the Civil Procedure Rules appears to suggest.

5. There was no evidence that the process server in this case ever tried to find the defendant and it was therefore not open to the process server to conclude that thte defendant could not be found.

6. There was no valid service of summons to enter appearance and therefore the ex parte proceedings must be rendered null and void ab initio.

Appeal allowed.

Cases

Waweru v Kiromo [1969] EA 172

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order V rules 6(1), 9(1), 12

Advocates

Mr Wasuna for the Appellants.