REPUBLIC OF KENYA
Migot v Republic

Court of Appeal, at Kisumu  
December 3, 1991

Gachuhi, Cockar JJ A & Omolo Ag JA

Criminal Appeal No 67 of 1991

(Appeal from a Judgment of the High Court of Kenya at Kisumu (Khamoni J)

dated 14/6/1991 in Criminal Appeal No 162 of 1990)

Criminal Practice and Procedure – retrial – whether an order for retrial prejudicial to the appellant – section 200 (4) Criminal Procedure Code.

The appellant, whose trial was commenced by one magistrate but concluded by another under section 200 of the Criminal Procedure Code, was convicted of handling stolen property and jailed for six years. He appealed to the High Court which found that the last trial magistrate had contravened section 200 of the Criminal Procedure Code by failing to explain to the accused the import of the section. The learned judge thus proceeded to allow the appeal, quashed the conviction, set aside the sentence and ordered the release of the appellant. The Court further ordered the retrial of the appellant under section 204 of the Criminal Procedure Code.

The appellant lodged a second appeal on grounds inter alia that a retrial would prejudice him and that it would enable the prosecution to call further evidence .

Held:

1. Subsection 4 of section 200 of the Criminal Procedure Code empowers the High Court to order a re-trial

2. The appellants fear that a retrial would give the prosecution an opportunity to fill gaps left during the previous trial by calling further evidence could be countered during the retrial.

Appeal dismissed.

Cases

No cases referred to.

Statutes

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

2. Criminal Procedure Code (cap 75) section 200(4)

REPUBLIC OF KENYA
Andhiro v Republic

Court of Appeal, at Kisumu  
December 2, 1991

Masime, Cockar JJ A & Omolo Ag JA

Criminal Appeal No 80 of 1990

(Appeal from a sentence of the High Court of Kenya at Kisii (Patel J)

dated 8/11/89 in Criminal Case No 49 of 1989)

Criminal Practice and Procedure - plea of guilty - prosecution witholding cautionary statement containing exculpatory facts - whether proper.

Criminal Practice and Procedure - pauper brief - accused person facing murder charge not represented - whether proper.

The appellant, who was initially charged with the offence of murder, pleaded guilty to the lesser offence of manslaughter. He was convicted and sentenced to 12 years imprisonment.

Before his sentencing in the High Court, the appellant expressed his remorse and promised to rehabilitate himself and become a useful member of the society. The appellant did not have legal representation. In his cautionary statement the appellant had given which was not brought to the attention of the trial judge, the appellant had given reasons for killing the deceased. He claimed the deceased had abused him.

Held:

1. If the nature of the abuse had come to the attention of the judge then he would not have passed the sentence that he had imposed.

2. It is the practice of the Court that an accused facing a charge of murder be provided with free legal aid. In this case the appellant was not represented by an advocate and yet the judge proceeded to take a plea. That was not a practice to be encouragd and it can lead to an order for retrial.

Appeal allowed sentence reduced.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 205

Atogo v Agricultural Finance Corporation & another

Court of Appeal at Nakuru  

  October 23, 1991

Hancox CJ, Masime JA & Omolo Ag JA

Civil Appeal No 165 of 1989

(Appeal from the judgment of the High Court at Eldoret (Aganyanya J)

dated 11th August 1989 in Civil case No 163 of 1987)

Civil Practice and Procedure – execution - attachment of debtor’s property – attachment of goods in default of payment - attachment done by brokers wrongfully instructed by person not entitled to attach – attachment done on the wrong party – consequence of wrongful attachment.

Tort – conversion – wrongful taking of another’s goods – motor vehicle - log-book conclusive evidence of ownership.

Under the instructions of the respondents, Regent Auctioneers seized a Datsun Pick-up vehicle belonging to the appellant. According to evidence tendered one Hawala said to be the step-brother to the appellant was a loaner to the respondents who had defaulted on his loans. A loans officer sent to inspect the stock on the loanee’s farm identified certain assets including the appellant’s pick-up. The appellant contended that it was the said Hawala who was the respondent’s loanee and not himself. It was argued on behalf of the respondent that both Hawala and the appellant knew that there was an impending attachment against Hawala and had cancelled the arrangement that the vehicle nominally belonged to the appellant so as to frustrate it.

Held:

1. The respondents were not in law entitled to attach the appellant’s vehicle and they were wrongfully instructed by the broker to do so.

2. The wrongful taking of another person’s goods constitutes the tort of conversion.

3. It is actionable trespass to wrongfully set in motion the law so that the wrong goods are seized or the wrong person is arrested.

4. It is actionable to set in motion a process of attachment without observing rules of ordinary prudence by ascertaining the true identity and ownership of the property to do seized with out the necessity for proof of express malice.

5. A log-book is evidence of ownership of the motor vehicle to which it relates unless the contrary is proved and ordinary prudence would dictate that the log book should at least be inspected.

6. Special damages are those ascertainable and quantifiable at the date of an action.

Appeal allowed.

Cases

1. Simiyu v Sinino [1985] KLR 683; [1982-88] 1 KAR 630

2. Sure & 9 others v Gesare Nyamaiko [1982-88] 1 KAR 1145

4. Mariga v Musila [1984] KLR 251; [1982-88] 1 KAR 507

4. Shabani v City Council of Nairobi [1985] KLR 516; [1982-88] 1 KAR 681

Statutes

1. Agricultural Finance Corporation Act (cap 323) sections 14(3), 19

2. Traffic Act (cap 403)

3. Judicature Act (cap 8) section 6

REPUBLIC OF KENYA

Tanui & 4 others v Birech & 11 others

Court of Appeal, at Nairobi
October 17, 1991

Gachuhi, Cockar JJ A & Omolo Ag JA

Civil Application No NAI 107 of 1991

(Being an appeal from the Ruling of the High Court at Nairobi, Githinji J,

dated 24th May 1991 in Civil Case No 1338 of 1991)

Civil Practice and Procedure – injunction - application for an injunction pending appeal - matters the court will consider in such application.

Societies - churches, colleges and clubs - involvement of the courts in matters to do with the business of societies - circumstances and manner in which the courts may intervene in such matters - ecclesiastical law.

The applicants sought an injunction restraining the respondents from proceeding with elections to fill the canonically vacant post of Bishop for the See of Eldoret. They contended that the Diocesan Chancellor and the Electoral College had no jurisdiction to conduct the election by reason of article X of the Church’s constitution.

The High Court at the first instance granted the prayers sought ex-parte but discharged the same after an inter-partes hearing.

In the appeal against the High Court’s decision, the appellants argued that if the elections were allowed to go on, it would cause disunity in the entire church as, he alleged, the appellants represented a large number of lay church members.

Held:

1. The principles on which the court acts when considering an application for an injunction pending appeal are, first the appeal should not be frivolous and second, the court should ensure that the appeal if successful should not be nugatory.

2. While it is not the business of the High Court or the Court of Appeal to involve itself in the day to day running of institutions such as the church, colleges, clubs and so on, yet where it is shown that such an organization is conducting its affairs in a manner contrary to its constitution and to the detriment of its members, then the High Court and the Court of Appeal would not only be entitled to but under a duty to compel it, either by injunction or otherwise, to obey its constitution.

3. Even if the elections were to go on, the applicants would still have a remedy because they could still challenge the validity of the elections.

4. To grant the applicants the injunction they sought would be to paralyse the operations of the church and this the court ought not to do.

Application dismissed.

Cases

1. Muge, In Re [1991] KLR 51; [1988-1992] 2 KAR 205

2. Githunguri v Jimba Credit Corporation Ltd (No 2) [1988] KLR 838

3. Nyongesa & 4 others v Egerton University College [1990] KLR 692

4. Shitakha v Mwamodo & 4 others [1986] KLR 445; [1982-88] 1 KAR 965

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(b)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 2, 9

Advocates

Dr Khaminwa for the Applicants.

Civil Practice and Procedure – dismissal of suit for want of prosecution – whether court has power to set aside order dismissing suit for want of prosecution – order XVI rule 6 Civil Procedure Rules. Civil Practice and Procedure – leave to appeal – application to show presence of grounds which merit serious consideration.

Equity - equitable remedies - specific performance - matters the courts will consider in granting such remedy. Land Law - sale of land - rescission of an agreement for sale on account of the purchaser failing to complete the transaction on time - purchaser seeking specific performance - whether time was of the essence - whether both parties to blame for not completing the transaction - whether order of specific performance properly given.

Damages - general damages - claim for damages under the Fatal Accidents Act (cap 32) - father claiming damages for the death of six year old child - whether father entitled to such damages in the absence of evidence of any pecuniary contribution made by the deceased child to the father or the family. Damages - assessment of damages - general damages under the Fatal Accidents Act (cap 32) - father claiming damages for the death of a six year old child - principles the Court of Appeal will apply in considering whether to interfere with an award of damages by the High Court.

Evidence – dying declaration – evidential weight of a dying declaration - whether corroboration is necessary to support a conviction.