Maathai v Kenya Times Media Trust Ltd

High Court, at Nairobi

December 11, 1989

Dugdale J

Civil Case No 5403 of 1989

Locus Standi – capacity to sue–– plaintiff seeking to prevent defendant from carrying out construction of a high-rise building on a park–– plaintiff alleging breaches of government and local government laws–– plaintiff suing in her own capacity–– whether plaintiff has locus standi to file the suit.

Civil Practice and Procedure – representative suit–– suits on behalf of the public – only Attorney General entitled to bring such suits.

Civil Practice and Procedure – pleadings – striking out of pleadings –application to strike out plaint for not disclosing a cause of action –whether a party who has not been served with plaint can make such application – Civil Procedure Rules order VI rule 13

The plaintiff/applicant, who described herself as the Co-ordinator of the Green Belt Movement, filed an application seeking a temporary injunction to restrain the defendant from proceeding with the construction of a proposed multi-storey building on Uhuru Park in Nairobi until the determination of the substantive suit filed by her.

The defendant/respondent raised a preliminary objection and sought to have the plaint struck out on the grounds that it disclosed no cause of action and that the applicant had no locus standi for file the suit or the application.

The applicant raised objections to the hearing of the respondent’s preliminary objection. Her advocate argued that the respondent’s application was intended to prevent a fair hearing of the issues raised and was contrary to public policy, that the suit needed not disclose a cause of action since it was for seeking certain declarations and finally, that the respondent was acting prematurely since the plaint had not been served.

Held:

1. There was no merit in the three grounds of objection filed by the applicant against the preliminary objection raised by the respondent.

2. The plaint disclosed no cause of action against the defendant/respondent.

3. Only the Attorney-General can sue on behalf of the public. In any event, it was clear that the plaintiff was not bringing an action on behalf of anyone else.

4. The plaint did not allege that there was an actual or anticipated breach by the defendant of any rights, public or private, in relation to the plaintiff or even that the plaintiff had a right of action against the defendant.

5. The plaintiff’s strong views that it would have been preferable if the building never took place in the interest of many people who had not been directly consulted were personal and immaterial.

6. The plaintiff had no right of action against the defendant and therefore she had no locus standi.

Respondent’s preliminary objection allowed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Act (cap 21)

2. Civil Procedure Rules (cap 21 Sub Leg) order IV rules 1, 3(1), (3); order VI rules 1, 13, 13(1), (2); order VIA rule 1; order XVIII; order XXIX; order XXXV rule 1

3. Development and Use of Land (Planning) Regulation 1961 (cap 303 Sub Leg)

4. Constitution of Kenya

Advocates

O Ombaka, G Mirugi & M Nyaoga for the Plaintiff/Applicant

G Oraro for the Defendant/Respondent

Onkoba v Republic

High Court, at Nairobi

November 19, 1989

Porter & Mbaluto JJ

Criminal Appeal No 325 of 1989

(Appeal from original conviction and sentence of the Principal Magistrate’s Court at Nakuru (ICC Wambilyangah Esq) in Criminal Case No. 1649 of 1986)

Criminal Practice and Procedure – plea– plea of guilty – accused pleading guilty to a capital offence – steps the court should take in such a plea.

Criminal Practice and Procedure – plea – plea taking – charge and all its essential ingredients to be explained to the accused.

Constitutional Law – rights of an accused person – person who has been charged with a criminal offence to be informed of the nature of the offence – right to interpretation – accused entitled to assistance of an interpreter – Constitution section 72.

The appellant, who was charged with robbery with violence, was convicted and sentenced to death on his own plea of guilty.

The appellant had initially pleaded not guilty to the charge but on a subsequent appearance, he asked the trial court to read to him the charges afresh and he pleaded guilty. The trial magistrate cautioned the accused that the offence carried mandatory death penalty and asked for the facts of the case to the read to him but he maintained his plea. Consequently the trial magistrate sentenced him to death.

On appeal, the appellant claimed that he did not know what was going on in court and that he did not understand the language in which the proceedings were conducted.

The court record however showed that the trial magistrate had on three occasions pointed out to the appellant that the offence carried a mandatory sentence of death. On the last occasion, he reiterated his plea of guilty and added that he was prepared to be sentenced to death.

Held:

1. It is very desirable that a trial judge on being offered a plea which he construes as a plea of guilty to a capital offence, should not only satisfy himself that the plea is an unequivocal plea but should satisfy himself and record that the accused understands the elements which constitute the offence and understands that the penalty is death.

2. When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language but if that is not possible then in a language which he can speak and understand.

3. A person who has been charged with a criminal offence shall be informed as soon as reasonably practicable in a language which he understands the nature of the offence charged. This provision relates to what shall be done by the police in the police station.

4. When conducting an appeal the court is bound by the record before it. It must appear from the record that tthe appellant understood what was being said in the court below.

5. The appellant’s plea was unequivocal and the trial magistrate had acted with great caution in accepting it. There was no basis for interfering with his decision.

Appeal dismissed.

Cases

1. Wanjiru v Republic [1975] EA 5

2. Lusiti v Republic [1977] KLR 143

3. Adan v Republic [1973] EA 445

4. Olel v Republic [1989] KLR 444

5. R v Ibrahim bin Saleh (1921 – 28) 1 TLR 69

6.Mangwera s/o Msakazi v Republic (1951) EACA 150

7. Chacha s/o Wamburu v R (1953) 20 EACA 339

8. Tomasi Mufumu v R (1950) EA 625

Texts

Rossen and Stratton, Digest of East African Criminal Case Law.

Statutes

1. Penal Code (cap 63) section 296(2)

2. Criminal Procedure Code (cap 75) sections 207 (1),(2); 382

3. Constitution of Kenya section 77(2)

Company Law-company-suing and being sued-person who has powers to bring or defend any action or proceeding on behalf of a company against which a winding up order has been made-where advocate not appointed by official receiver of a company against which a winding up order had been made brought application to court on behalf of the company-validity of application-Companies Act (cap 486) sections 228, 241 (1) (a), 241 (1) (c).

Ali v Republic

High Court, at Nairobi

October 2, 1989

Porter J

Criminal Appeal No 1152 of 1988

(Appeal from original conviction and sentence in Criminal Case No 2107 of 1987 of the Second Class District Magistrate’s Court at Makadara)

Criminal Practice and Procedure – accused charged with subjecting a tenant to annoyance but section quoted incorrect – whether conviction can be sustained – section 30 Rent Restriction Act (Cap 296).

Held:

Section 30 under which the appellant is charged does not create an offence.

The result therefore is that the error in the charge is uncurable.

Appeal allowed.

Cases

1. Uganda v Opidi [1965] EA 614

2. Sabur v R [1958] EA 126

Statutes

Rent Restriction Act (cap 296) sections 29, 30

[Ruling] Company Law winding up cause-company going into receivership- ground that it is just  and equitable that the Company be wound up-power of the court to appoint the Official Receiver to be the provisional liquidator at any time after the presentment of a winding up petition and before the making of a winding up order-injunction against receiver appointed on the grounds that he is conducting the matter in a manner detrimental to the applicant-effect of-whether the applicant made out a prima facie case that the affairs of the Company were being conducted in a manner oppressive to him-Companies Act Section 211

Kinyanjui & 2 others v Republic

High Court, at Nairobi

 August 11, 1989

Porter & Aluoch JJ

Criminal Appeals Nos 976 & 977 of 1986 (Consolidated)

(Appeal from an original conviction and sentence of the Resident Magistrate’s Court at Nyeri on 14th July, 1986 in Criminal Case No 227 of 1984)

Evidence – evidence of a child of tender years – voire dire – magistrate conducting voire dire but failing to record it – whether voire dire is admissible.

Evidence – identification evidence – identification by a single witness –

need for court to test such evidence – matters the court should consider.

Evidence – finger print evidence – finger print of the accused person found on a public vehicle with no evidence of how long it had been there – evidence that the motor vehicle was used in a robbery – whether fingerprint evidence reliable.

Evidence –extra judicial statement – admissibility of statement made by accused person.

The appellants were convicted of robbery with violence and sentenced to death as authorized by law.

They appealed against conviction and sentence contending that the extrajudicial statements made by one of the accused in which he purportedly confessed to having committed the robbery together with his co-accused had been obtained through torture and coercion.

Although the 2nd accused complained of having been tortured, the trial magistrate, while noting the complaint, still held that the extra judicial statement was too long and detailed to have been invented by anyone.

In recording the evidence the trial magistrate noted that a voire dire was conducted in respect of a child of tender age but the contents of the voire dire had not been recorded. The prosecution further led evidence on the finding of the 3rd appellant’s fingerprints on the vehicle allegedly used during the robbery. However no evidence was adduced as to how long the finger prints had been on the vehicle.

Held:

1. A Voire dire examination of a child of tender age should be recorded so that on appeal the ability of the witness and his understanding may be clear for all to see.

2. There was no evidence to show how long a fingerprint can be expected to remain on a public vehicle. The best that the fingerprint evidence could show for the prosecution was consistency with their case, even where there was no explanation from the accused as to how the fingerprints got there.

3. The contents of a statement are not relevant in deciding whether a statement is voluntary or not. Considering, among other things, the lack of credibility of the police officer who was accused of mistreating the 3rd appellant, his statement should not have been admitted in evidence.

4. A fact may be proved by the evidence of a single witness but there is need for testing with great care the evidence of a single witness respecting identification, especially when conditions favouring a correct identification are difficult.

5. There was no evidence on which the 3rd appellant’s conviction could be sustained.

3rd Appellant’s appeal allowed, 1st and 2nd Appellants’ appeals dismissed.

Cases

1. Ongwenyo v Republic Criminal Appeal No 173 of 1986

2. Kamau v Republic [1975] EA 139

3. Abdalla bin Wendo v Reginam (1953) 20 EACA 166

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

5. Rupublic v Reuben Taabu and Others High Court Criminal Appeal

Nos 480, 208 and 209 of 1978

Statutes

1. Penal Code (cap 63) section 296(2)

2. Criminal Procedure Code (cap 75) section 37

Advocates

1st Appellant in person

Mr Muigai for the 2nd Appellant

Kimani v Republic

High Court, at Nairobi

July 19, 1989

Porter J

Criminal Appeal No 1028 of 1987

Landlord and Tenant – protected tenancy – landlord issuing notice of termination on grounds other than contained in the Rent Restriction Act (cap 296) Act – whether notice valid – Rent Restriction Act section 14(1).

Landlord and Tenant – protected tenancy – landlord having sold premises – whether such landlord has capacity to issue termination notice.

Criminal Practice and Procedure – charge – form of charge – charge citing the wrong section of statute – whether defect in charge curable – Criminal Procedure Code (cap 75) section 382.

The appellant was convicted of willfully subjecting a tenant to annoyance with intent to compel the tenant to vacate premises contrary to section 30 of Rent Restriction Act (cap 296).

The issue throughout the trial and on the appeal was whether there was a landlord–tenancy relationship between the appellant and the complainant at the time of commission of the offence.

The property in issue had been bought by the appellant from a Mrs Munah who after completion of the sale issued a notice to the complainant requiring him to vacate and also indicating he could negotiate new rent with the appellant.

It was contended by the prosecution that the purported notice did not comply with section 14(1) of Rent Restriction Act as it did not give as a reason for termination the grounds set out thereunder. Besides, having sold the premises, the former landlord could not validly thereafter issue a notice of termination.

The trial magistrate found that there was a landlord–tenant relationship between the complainant and the appellant and therefore his act of removing the complainant’s furniture from the premises constituted an offence under the Act.

Held:

1. Possession may not be by a landlord recovered unless the notice given is given for one of the reasons set out in one of the subsections of section 14(1) of the Rent Restriction Act (cap 296).

2. The notice in question did not specify the ground upon which possession was required.

3. It could not be said that Mrs Munah required possession on any of the grounds set out in section 14 as she had already sold the property.

4. Therefore the appellant had no right to attempt to obtain possession.

5. The offence should have been charged under section 29 of the Act. The trial magistrate ought to have noticed that the charge was laid under the wrong section but no injustice arose from that. The defect would be cured under section 382 of the Criminal Procedure Code (cap 75).

Cases

No cases referred to.

Statutes

1. Rent Restriction Act (cap 296) sections 2(1), 14(1), 29, 30

2. Criminal Procedure Code (cap 75) section 382