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)

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)

Kihungi v Kihungi

Court of Appeal, at Nakuru

September 28, 1989

Nyarangi JA

Civil Application No 136 of 1989

(In an intended appeal from the judgment of the High Court at Nakuru, Tunoi J dated 25th January 1988 in Civil Suit No 90 of 1986)

Civil Practice and Procedure - extension of time - time to file appeal - case involving a land dispute - courts’ inclination to allow appeals in such matters.

Land Law - land disputes – appeals in such disputes – court generally inclined to allow extension of time to file appeal.

The applicant sought extension of time to file a notice of appeal out of time. The parties to the case were co-wives and the dispute concerned family land.

The applicant contended in the affidavit in support of the application that she instructed her advocate to lodge a notice of appeal within the prescribed time by the Court of Appeal Rules but the advocate did not do so.

Held:

1. It has become a basic concept of land disputes that unless there has been such delay as would make it clearly unreasonable and unjust to reopen the matter, an intending appellant should be allowed to institute an appeal.

2. When it is family land, the added advantage is that upon determination by the court peace and harmony in the family affected is restored.

3. It seemed unlikely that the respondent and her children would be denied justice. In the circumstances, the only matter for consideration was whether the delay in bringing the notice of motion was inordinate, inexcusable and unexplained.

4. The delay was not inordinate and this court accepted the explanation for the delay.

Application allowed.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 22(1), 54(1)(c), 76, 81

Advocates

Appellant unrepresented.

Mr Kagucia for the Respondent.

Ngugi v Kinyanjui and 3 others

Court of Appeal, at Nakuru

January 27, 1989

Gachuhi, Apaloo JJ A & Gicheru Ag JA

Civil Appeal No 1 of 1986

(Appeal from a ruling of the High Court at Nakuru, Omolo Ag J, in HCCC No 73 of 1984, dated 1st July 1985)

Civil Practice and Procedure – res judicata – issue of ownership of land determined by court in defendant’s/appellant’s favour – no appeal filed against decision – appellant filing fresh suit for eviction of respondents – respondents raising issue of ownership of the land – whether issue res judicata – whether reference of issue to arbitration proper.

The appellant had previously been sued by the respondents who claimed he held the suit land in trust for them. They there sought the court’s order that the appellant transfers the suit plot to the 1st respondent as it was the 1st respondent who had given money for its purchase.

The High Court (Kneller J) after hearing evidence dismissed the respondents’ suit. However, as the appellant did not make any counterclaim the matter rested there and there was no appeal against the judgment.

A dispute later arose between the appellant in which he was physically assaulted prompting him to move out of the suit land. The appellant however filed a suit seeking eviction of the respondents and an injunction restraining them from using the land.

When the matter came for hearing the trial judge did not hear it but referred it to arbitration by the Provincial Commissioner. The arbitratration recommended sub-division of the suit land which in effect nullified the previous order of Kneller J. The award was filed and was adopted by the High Court. The appellant appealed.

Held:
1. As the judgment of Kneller J had not been vacated, that judgment had fully and finally settled the question of the ownership of the suit land in the appellant’s favour.
2. Under the Civil Procedure Act (cap 21) section 7, the issue of ownership of the land was therefore res judicata since it had been decided between the parties and the same issue could not be tried again in a subsequent suit between the same parties.
3. Section 7 was a mandatory bar from any fresh trial of a concluded issue and a judge cannot competently get round that bar by obtaining the consent of the parties to an arbitration of the concluded issue.
4. The judge erred in law in entertaining the arbitrator’s award and making it an order of the court as in doing so, he purported to be deciding on matters which were res judicata.
5. The appellant was the beneficial owner of the suit land. He was therefore entitled to evict the respondents from it, to mesne profits and to an injunction restraining them from interferring with his quiet enjoyment of the land.

Appeal allowed.

Cases
No cases referred to.

Statutes
1. Civil Procedure Act (cap 21) section 7
2. Registered Land Act (cap 300) section 27

Rusweti v Republic

Court of Appeal, at Nakuru

 1989

Platt, Gachuhi & Apaloo JJ A

Criminal Appeal No 140 of 1988

Criminal Practice and Procedure - appeal - second appeal - court enjined to entertain issues of la wonly in such appeal - whether merely determining an issue of la win teh appellant’s favour sufficient to interfere with the verdict - Criminal procedure Code (cap 75) section 361(1).

Criminal Practice and Procedure – charge – whether duplicity in a charge per se sufficient ground to allow an appeal.

Criminal Law – causing disturbance likely to cause a breach of the peace – whether the act must take place in a public place in order to constitute an offence – Penal Code (cap 63) sections 94, 95.

The appellant was tried and convicted of the offence causing a disturbance likely to cause breach of the peace and fined Kshs 2,000 or six months imprisonment in default. His appeal to the High Court was dismissed with High Court affirming the trial court’s verdict.

The appellant contested the conviction a second time by filing a second appeal on what he contended were grounds of law.

His argument was that although the charge conformed with the relevant section of the Penal Code (cap 63), the particulars of the charge were at variance with the charge and that no offence was committed as the Act did not take place with public place.

Held:

1. As this was a second appeal, the Court was expressly enjoined by section 361(1) of the Criminal Procedure Code (cap 75) to entertain an appeal on a matter of law and not on a matter of fact.

2. Even if the question of law can be determinated in favour of the appellant, this could not result ipso facto in the interference with the verdict. Such error must occasion a substantial miscarriage of justice.

3. While section 94 of the Penal Code (cap 63) makes conduct a punishable offence only if committed in public place, section 95 is silent on this. It is a reasonable inference that the requirement of a public place was deliberately omitted to make the act punishable whenever it was committed.

4. Even if a charge was bad for duplicity an appeal should be dismissed if no injustice was done to the appellants. The appellant failed to show that a miscarriage of justice had happened.

5. There was no suggestion that the variance between the charge as laid and the particulars in any way misled the appellant. He knew the charge he faced and his evidence was directed at meeting it.

Appeal dismissed.

Cases

1. R v Ndarama [1958] EA 294

2. R v Thompson 9 Cr App R 252

3. R v Robertson (1936) 25 Cr App R 208

Statutes

1. Penal Code (cap 63) sections 4, 94, 95(1)(b)

2. Criminal Procedure Code (cap 75) section 361(1)

3. Penal Decree [ZANZIBAR] section 173(d)

Wasiembo v Republic

Court of Appeal, at Nakuru

 March 21, 1980

Law, Miller & Potter JJ A

Criminal Appeal No 48 of 1979

(Appeal from a Judgment of the High Court at Nakuru (Nyarangi J) in Criminal Appeal No 404 of 1978 dated 13th March 1979)

Criminal Practice and Procedure – charge – accused charged with handling stolen property without stating the manner in which he allegedly handled the property – whether charge defective.

Criminal Law – handling stolen property – how offence charged – whether omission to state manner of handling fatal to subsequent conviction – Penal Code (cap 63) section 322 (2).

Criminal Law – handling stolen property – accused buying a record player without accompanying certificate or license – whether the circumstances amount to dishonesty – section 322(2) of the Penal Code.

The appellant was convicted in a Resident Magistrate’s Court for dishonestly handling certain property contrary to section 322(2) of the Penal Code. His first appeal to the High Court was summarily dismissed.

On this second appeal it was submitted by his counsel that the charge on the basis of which he was convicted was defective as it did not disclose the manner in which he handled the stolen item as required by section 322(1) of the Penal Code.

The evidence at the trial court showed the appellant had bought a record player at Kshs 300 from somebody who he lent his bicycle to go and collect it and who subsequently admitted to having stolen it.

Evidence was led in court that a record player at that time would go for Ksh 650 if bought by hire purchase which obviously included a substantial element by way of interest.

No evidence was however led as to the condition of the record player and how much it was sold for in the open market.

The prosecution however submitted that the fact that the appellant had bought the record player at a low value and without any accompanying certificates or licence pointed out to dishonesty on his part.

Held:

1. The charge was defective in that it did not specify the manner of the alleged handling as required by section 322(1) of the Penal Code.

2. No failure of justice was occasioned by the defects, as the evidence adduced by the prosecution made it clear that what was alleged against the appellant was that he dishonestly received the goods.

3. There is doubt in all circumstances whether the appellant was proved to have acted dishonestly when he received the record player and also whether he must have known or had reason to believe it to have been stolen.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 322(1), (2)

2. Criminal Procedure Code (cap 75) sections 352(1), 352(2), 382

Advocates

Mr S M Otieno for the Appellant

Mr Shilenje, Senior State Counsel, for the Respondent