Shariff Salim & another v Malundu Kikava

Court of Appeal at Mombasa

October 13, 1989

Gachuhi, Gicheru & Kwach JJ A

Civil Appeal No 15 of 1989

(Appeal from the judgment and decree of the High Court at Mombasa, Bosire J,
in HCCC No 865 of 1983 dated 9th November 1987)

Negligence – contributory negligence – whether a party who suffers damage from his own negligence has a cause of action against the other negligent party – respondent involved in accident with appellant – respondent pleading guilty to careless riding – respondent subsequently suing the appellant for negligence – whether respondent’s suit disclosed a cause of action – Law Reform Act (cap 26) section 4(1)
Civil Practice and Procedure – interest – discretion of the court in awarding interest – how this discretion should be exercised – whether proper to grant interest on general damages from the date of filing suit –
failure by judge to give reasons for granting such interest – whether judge’s discretion properly exercised. Civil Procedure Act (cap 21) section 26(1) The respondent who was charged and convicted by the magistrates court of the offence of careless riding sued the appellants in the High Court seeking damages for injuries sustained as a result of the accident. The High Court (Bosire J) contributory negligence at 25% and 75% between the first appellant and the respondent respectively. The court awarded special and general damages and further ordered interest from the date of suit until payment in full. The appellants appealed against the decision of the High Court on grounds inter alia that the respondent having been convicted of the offence of careless riding had no reasonable cause of action against them and challenged the finding that the first appellant contributed to the accident.
The appellants further argued that the learned Judge erred in law in awarding interest on damages from the date of filing suit.

Held:
1. A Plaintiff who has suffered damage partly from his own negligence and partly from the negligence of any other person can bring an action for damages against that other person subject to apportionment of contributory negligence between them. This is allowed by section 4(1) of the Law Reform Act (cap 26).
2. Before the judge could make any proper adjudication on the issue of negligence he was bound to consider the evidence before him and make a finding as to which version he accepted as true. The judge had failed to make any finding in that regard.
3. The summary of facts left no room for only doubt that the accident was caused wholly by negligence on the part of the respondent. The finding by the judge that the first appellant was guilty of contributory negligence was made without any factual basis and was erroneous.
4. The award of interest on a decree for the payment of money for the period from the date of the suit to the date of the decree is a matter entirely within the discretion of the court but this discretion being a judicial one must be exercised judicially.
5. According to authorities, interest on general damages should be paid from the date of assessment which is the date of judgment. That is the earliest date when the defendant’s liability to pay does arise.
6. The judge had given no reason for ordering that interest, including interest on general damages, was to be paid from the date of filing the
suit. This lead to the conclusion the judge had wrongly exercised his
discretion to award interest.

Appeal allowed.

Cases
1. Robinson v Oluoch [1971] EA 376
2. Miraflores, The and Abadesa, The [1967] 1 All ER 672; [1967] 1Lloyd’s Rep 191; [1967] 1 AC 826; [1967] 2 WLR 806
3. Lata v Mbiyu [1965] EA 592
4. Mukisa Biscuit Manufacturing Company Ltd v West End DistributorsLtd (No 2) [1970] EA 469
5. Dipak Emporium v Bond’s Clothing [1973] EA 553

Statutes
1. Traffic Act (cap 403) section 87(1)
2. Evidence Act (cap 80) section 47A
3. Law Reform Act (cap 26) section 4(1)
4. Law Reform (Contributory Negligence) Act 1945 [UK] section 1
5. Civil Procedure Act (cap 21) section 26(1)

Advocates
Mr Khanna for the Appellant.

Kagiri v Republic

Court of Appeal, at Mombasa

 July 1989

Masime, Gicheru & Kwach JJA

Criminal Appeal No 18 of 1988

Criminal Practice and Procedure – charge – duplicity of charge – charge of obtaining money by false pretences relating to various sums of money obtained by different persons over a period of time - whether charge bad for duplicity.

Criminal Practice and Procedure – restitution – restitution not to be ordered where property in issue cannot be easily traced or restored - Criminal Procedure Code (cap 75) section 178(2)(ii).

The appellant was convicted by the subordinate court of the offence of obtaining money by false pretences contrary to section 313 of the Penal Code (cap 63).

The appellant and another were alleged to have opened an account with Bank of Credit and Commerce International where a forged cheque of Kshs 422,980 was paid and against which they drew several cheques drawing virtually all the money in the account.

However, an appeal to the High Court the conviction was quashed on the basis that no individual at the bank was alleged to have been deceived and the court substituted therefor a conviction for theft contrary to section 275 of the Penal Code. The conviction was however based on the omnibus figure of Kshs 421,000 being the total of several cheques drawn by the appellant and his accomplice on the account.

He appealed against the conviction contending that the conviction was based on a duplex charge. The court further ordered for restitution of the stolen money. It however transpired that several transactions have occurred and the money changed several hands.

Held:

1. The charge of obtaining false pretences related to a sum of money representing the total of various monies withdrawn from the bank by different persons on six different occassions. The various sums of cash should have been charged in seperate counts. The omnibus charge was duplex, fatally defective and it could not be sustained.

2. The conviction for theft substituted by the superior based on Kshs 421,000 was equally be duplex, defective and not supportable.

3. It had been established that the appellant was involved in the fraud. This court would quash his conviction for theft of Kshs 421,000 and substitute therefor a conviction of theft contrary to section 275 of the Penal Code of the sum of Kshs 180,000 on 16th September, 1983.

4. Under the Criminal Procedure Code (cap 75) section 178(2)(ii), an order of restitution should be made where the very property stolen or the proceeds of its disposition are traceable and can be easily restored to the complainant. This was not a proper case for ordering restitution.

5. In the circumstances of this appeal various transactions had occurred in relation to the stolen negotiable instrument and issues of liability for the complainant’s loss may require to be sorted out between various parties in a civil suit.

Appeal allowed in part.

Cases

Makupe v Republic [1989] KLR 523

Statutes

1. Penal Code (cap 62) sections 275, 313

2. Criminal Procedure Code (cap 75) sections 177, 178

Makupe v Republic

Court of Appeal, at Mombasa

July 18, 1984

Kneller JA, Chesoni & Nyarangi Ag JJ A

Criminal Appeal No 98 of 1983

(Appeal from a Judgment of the High Court at Mombasa, Aragon J, dated 5th August 1983, in Criminal Appeal No 312 of 1983)

Criminal Practice and Procedure - charge - form of charge – obtaining by false pretences – how offence charged - Criminal Procedure Code section 137 .

Criminal Practice and Procedure – retrial – circumstances in which a retrial may be ordered - whether proper to order retrial where conviction is vitiated by a defect in the charge.

The appellant was convicted of the offence of obtaining by false pretences contrary to section 313 of the Penal Code (cap 63).

His appeal to the High Court was allowed on the grounds that the charge was a duplex. However, the High Court ordered a retrial.

The appellant therefore appealed to the Court of Appeal arguing that duplicity of a charge is under section 382 of the Criminal Procedure Code (cap 75) incurable and so fundamental a mistake that a retrial cannot be ordered.

Held:

1. Obtaining by false pretence includes obtaining with intent to defraud with false pretences. It is not one of the offences for which it is sufficient to specify the gross amont of property in respect of which the offence is alleged to have been committed or the dates between which it is alleged to have been committed without specifying particular times or exact dates.

2. The various items should have been separate counts as the appellant might have wished to plead guilty or not guilty to everything humped together in one count.

3. In general a retrial will be ordered when the original trial was illegal or defective. It will not be ordered where the conviction is set aside because of insufficient evidence.

4. Even where a conviction is vitiated by a mistake of the trial court for which the proecution is to blame, it does not necessarily follow that a retrial should be ordered.

5. Each case must depend on its particular facts and circumstances and the order should only be made where interest of justice requires it and it should not be ordered where it is likely to cause an injustice to the accused person.

6. If the order of retrial was allowed to stand, the prosecution would be able to elad evidence at he retrial to remedy the paucity of its evidence and to fill up gaps. It would therefore be unfair to the appellant to require him to stand trial again.

Appeal allowed.

Cases

1. Rex v Sowedi Kauta Tanywamugwabi (1933) 15 KLR 105

2. Rex v Odda Tore & another (1934) 1 EACA 114

3. Mongella s/o Ngui v Rex (1934) 1 EACA 152

4. Rex v Ngidipe & others (1939) 6 EACA 118

5. Cherere s/o Gukuli v Reginam (1955) 22 EACA 478

6. Kamunan Bulegeya v Republic (1935) 2 EACA 122

7. Dossani v R (1946) 14 EACA 150

8. Kija s/o Sagida v R (1947) 14 EACA 118

9. Rex v Suke d/o Samwe (1947) 14 EACA 134

10. Rex v Dinu s/o Sombi & others (1947) 14 EACA 136

11. Sumar v Republic [1964] EA 481

12. Fatehali Manji v R [1966] EA 343

13. Salim Muhsin v Salim Bin Mohamed & 4 others (1950) 17 EACA 128

Statutes

1. Penal Code (cap 63) sections 312, 313

2. Criminal Procedure Code (cap 75) sections 137, 150, 212, 345(3), 382

3. Exchange Control Act (cap 113)

Advocates

Mr Kitonga for the Appellant.