Evidence – secondary evidence – notice to produce a document – Evidence Act (cap 80) section 69 – to whom such notice is given – when such notice can be dispensed with – party who does not have power over the document or who is outside of the process of c

Harun Miruka v Jared Otieno Abok & another

High Court, at Kisumu July 24, 1990

Omolo J

Civil Case No 191 of 1985

Civil Practice and Procedure – setting aside ex parte judgment – application to set aside made under section 3A of the Civil Procedure Act – when section 3A may be invoked – court’s discretion to set aside an ex parte judgment – manner in which the discretion should be exercised - order IXA rule 10 and order IXB rule 8 of the Civil Procedure Rules.

Civil Practice and Procedure - judgment in default – when judgment can be entered by default – whether service of summons is an initiating process for purposes of a default judgment – effect of no service on a judgment by default.

Civil Practice and Procedure - service – service of summons – where service of summons is disputed – presumption of service – party on whom burden to show return of service is incorrect lies – proof of service by the process server – applicable principles - whether affidavit of process server sufficient evidence.

Evidence – affidavit evidence – affidavit of a process server as proof of regularity of proceedings – where service of summons is not disputed – whether the affidavit evidence is sufficient evidence – where service is disputed – whether the process server should give oral evidence in court.

The plaintiff sued the defendants claiming general damages arising out of a traffic accident involving a vehicle owed by the 1st defendant but driven by the 2nd defendant.

Summonses were issued against both defendants asking them to enter appearance. The 2nd defendant entered appearance. The process server filed a return of service averring that he had served the 1st defendant who refused to sign the summons. The 1st defendant did not enter appearance and neither of them filed a defence.

Interlocutory judgment was entered for the plaintiff and he was awarded damages in the sum of shs 228,500/-. The defendants applied to have the judgment set aside under section 3A of the Civil Procedure Act and various rules under the Civil Procedure Rules.

The 2nd defendant contended that after entering appearance, the plaintiff assured him that the suit would not go on. The 1st defendant argued that he was never served with summons as alleged by the process server and that he had settled the matter with the plaintiff.

Held:

1. Section 3A of the Civil Procedure Act (cp 21) provides for the exercise of the court’s inherent powers to do justice. It only comes into play where the rules of the Civil Procedure Act are silent.

2. The defendants’ prayers in this case were all provided for in various sections of the Civil Procedure Rules and thus there was really no reason for the court to do anything under section 3A of the Civil Procedure Act.

3. Under order 9A and 10 and order 9B rule 8 of the Civil Procedure Rules, the court’s discretion to set aside an ex parte judgment is wide and unfettered but all the same that discretion must be exercised according to law and in conformity with common sense.

4. The wide discretion of the court given by order 9A rule 10 and order 9B rule 8 is to be exercised to ensure that justice is done between the parties taking into account the merits of their respective cases.

5. Judgment by default can only be entered if there has been an initiating process concerning which the defendant is in default.

6. In a civil suit an initiating process is the service of summons upon a defendant. If there is no service then ex debito justitiae the judgment by default must be set aside.

7. Where service is disputed, there is a qualified presumption in favour of the process server. The burden lies on the party questioning the service, to show that the return is incorrect.

8. An affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings.

9. If the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross-examination given to those who deny the service.

10. The process server in this case stated in both his return of service and in his oral evidence in court that he had served the 1st defendant with summons.

11. From all the circumstances of this case, the court could see nothing to warrant the holding that the qualified presumption in favour of the process server had been rebutted by the 1st defendant.

Application dismissed.

Cases

1. Mbogo v Shah [1968] EA 93

2. Patel v EA Cargo Handling Services Ltd [1974] EA 75

3. Chemwolo & another v Kubende [1986] KLR 492

4. Baiywo v Bach [1987] KLR 89

5. Kimani v McConnel [1966] EA 547

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) orer IXA rules 6, 10, 11; order IXB rules 1, 1(1), 8; order XXI rule 22

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

Advocates

Mr Otieno for the Defendants/ Applicants.

Charles Mondo Olweno v Republic

High Court, at Kisumu July 12, 1990

Khamoni J

Criminal Appeal No 305 of 1990

(From original conviction and sentence in Criminal case No 1161 of 1988 of the Resident Magistrate’s Court at Siaya, A Anambo Esq RM)

Evidence – identification evidence - identification by a single witness – tests to be applied before the court may admit such evidence.

The appellant was convicted and sentenced on a charge of robbery based on identification by a single witness. The witness claimed to have used a torch to enable him to see the appellant, whom he had never seen before.

He did not immediately tell anyone that he had identified the appellant and did not lead to the arrest of the appellant. Although the witness claimed before the trial magistrate that he identified the appellant at the police station, there was no evidence of an identification parade having been conducted by the police.

The appellant appealed against his conviction and sentence.

Held:

1. Where the only evidence of identification of an accused person is given by a single witness, the court should scrutinize that evidence under two different tests:

a) The first test should be whether the conditions under which the single witness claims to have identified the accused person were such that there was positive identification.

b) The second test to which the evidence of a single witness should be subjected to is whether it could be relied upon, without any other evidence, to sustain a conviction.

2. From the court’s evaluation of the evidence of the single witness in this case, it did not pass the two tests or any of them.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1)

Advocates

Mrs Muinde for the Republic.

Kamau Muchiri v Republic

High Court, at Kisumu April 2, 1990

Khamoni Ag J

Criminal Appeal No 34 of 1990

Criminal Practice and Procedure – charge – procedure in charging an accused person – manner in which an accused person’s plea should be taken – where the charge is defective but the particulars of the offence are stated clearly – whether such a charge is curable under section 382 of the Criminal Procedure Code – what a magistrate needs to satisfy before assuming jurisdiction to try a case for which an accused is charged.

Criminal Practice and Procedure - forfeiture of goods – procedure for forfeiture of goods – lack of provisions for forfeiture under the National Cereals and Produce Board Act – effect of having no provisions on forfeiture under the Act – procedure for forfeiture under section 389A of the Criminal Procedure Code – when such procedure is to be followed.

Plea - plea taking - plea taken on a defective charge.

The appellants had been charged and convicted for transporting maize contrary to the National Cereals and Produced Board Act and its regulations.

The appellants contended that the facts did not support the offence charged hence the conviction was not proper. The plea was also alleged to have been equivocal. Although they purported to plead guilty, the charge was defective in that it did not disclose the enabling provisions of the National Cereals and Produce Board Act. The charge also referred to a non-existent Regulation 173 making it impossible for the appellants to know what type of offence they were faced with. The appellants argued further that the order for forfeiture of 90 bags of maize made by the trial magistrate was not supported by law. Neither the National Cereals and Produce Board Act nor the Regulations made under it contained provisions for such forfeiture.

The state submitted in reply that the charge clearly disclosed to the appellants that the offence they were facing was transporting maize without a permit and any mistake in the charge was therefore curable. It was further argued that the magistrate properly made the order of forfeiture as the owner of the lorry carrying the maize did not claim it.

Held:

1. When a person is charged:

a) the charge and the particulars should be read out to him and the magistrate should explain to the accused person all the essential ingredients of the offence charged;

b) if the accused admits all the essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty;

c) the magistrate should next ask the prosecutor to state the facts of the alleged offence and when the statement is complete should give the accused an opportunity to dispute or explain the facts or add any relevant facts;

d) if the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to the sentence.

2. Although the charge in this case was itself not framed carefully particulars of that offence were stated fully and clearly without any mistake which could bring a confusion in the mind of the appellant. The mistakes present were curable under section 382 of the Criminal Procedure Code.

3. It is the primary duty of a magistrate to satisfy himself that the section of the Penal Code or any other law, under which an accused is charged is correct before assuming jurisdiction to try the case.

4. The National Cereals and Produce Board Act and its Regulations have no provisions for forfeiture and this is unlike the repealed Maize Marketing Act which provided for forfeiture under section 43.

5. The failure to include provisions on forfeiture in the National Cereals and Produce Board Act means that no forfeiture should be ordered unless there are provisions in the Criminal Procedure Code in section 289A.

6. Section 389A of the Criminal Procedure Code deals with the procedure for forfeiture only. This procedure is to be followed where a written law authorises forfeiture and not otherwise.

7. In the circumstances of this case, section 24(f) of the Penal Code does not provide a way out when the provisions of the National Cereals and

Produced Board Act are silent.

8. However well-intentioned the act of the trial magistrate may have been in undertaking the forfeiture proceedings in this matter, he had no legal basis for doing so and to order forfeiture of the maize was therefore wrong.

Order of forfeiture set aside. Appeal dismissed.

Cases

1. Adan v Republic [1973] EA 445

2. Sabur v R [1958] EA 126

3. Avone v Uganda [1969] EA 129

4. Uganda v Opidi [1965] EA 614

Statutes

1. National Cereals and Produce Board (Movement of Maize, Wheat and Scheduled Agricultural Produce) Regulations 1987 (cap 338 Sub Leg) rule 3(1)

2. Criminal Procedure Code (cap 175) sections 326, 347, 360, 382, 389A

3. Penal Code (cap 63) section 24(f)

4. Criminal Procedure Code [Uganda] section 347

Advocates

Mr Olago-Aluoch for the Appellants.

Mrs Muindi for the Respondent.

Jonathan Mungai Wainaina v Republic

High Court, at Kisumu March 20, 1990

Omolo J

Miscellaneous Criminal Application No 9 of 1990

Criminal Practice and Procedure – bail – bail pending trial – application for bail – where an accused person pleads not guilty to all charges – whether the court is entitled to take into account circumstances out of which the charges arose.

The applicant was charged with various offences apparently arising out of circumstances surrounding the death of a Minister in the Kenyan Government. He pleaded not guilty to all of them. In refusing an application for bail, the resident magistrate took into consideration circumstances out of which the charges had arisen.

The applicant appealed against the refusal.

Held:

1. In an application for bail, magistrates are entitled to take into account the circumstances out of which the charges arose and weigh them in deciding whether or not the applicant should be granted bail.

2. The magistrate in this case did so and refused the applicant bail. Looking at all the circumstances, the magistrate was right.

Application dismissed.

Cases

No cases referred to.

Statutes

Criminal Procedure Code (cap 75) section 123(3)

Advocates

Mr Aluoch for the Applicant.

Oremo v Republic

High Court, at Kisumu February 16, 1990

Omolo J

Criminal Appeal No 270 of 1989

(From original conviction and sentence in Criminal Case No 1254 of 1989 of the Resident Magistrate’s Court at Siaya, Alex Anambo Esq RM)

Criminal Practice and Procedure – charge – defective charge – where an accused person is charged with non-existent offence - whether an accused person must have knowledge of possession, on a charge of possession of bhang – where an accused utters “It is true” to the charge – whether such utterance is a plea of guilty.

Plea - plea of guilty - where accused utters “It is true” to the charge - whether such utterance is a plea of guilty.

The appellant was convicted on his own plea of guilty for transporting cannabis sativa contrary to section 11 of the Dangerous Drugs Act and being in possession of cannabis sativa contrary to section 10 of the same Act.

As regards the second count, the appellant was recorded to have responded by saying “It is true” whereupon the magistrate entered a plea of guilty. The appellant appealed against both counts.

Held:

1. There is clearly no offence called transporting cannabis sativa under section 11 of the Dangerous Drugs Act. The appellant in this case was therefore charged with a non-existent offence.

2. Possession of bhang must involve knowledge that the bhang is there. If the appellant told the magistrate he was not aware what he was carrying was bhang, then he was obviously pleading not guilty.

3. The sentence “It is true” does not really amount to a plea of guilty. The appellant in this case went on to tell the magistrate he was not aware that what was being carried in the vehicle was bhang.

Appeal allowed.

Cases

No cases referred to.

Statutes

Dangerous Drugs Act (cap 245) sections 10(e), 11, 18(2)(a)