Evans Moses Saeta v Republic

Court of Appeal, at Nakuru December 23, 1992

Masime, Gicheru & Kwach, JJ A

Criminal Appeal No 67 of 1992

(An Appeal from a judgment of the High Court of Kenya at Nakuru (Tanui, J) dated the 24th day of October, 1991 in HCCr A No 248 of 1991)

Criminal law – demanding with menaces – essential ingredients of.

Criminal law – demanding with menaces – appellant asking for money to end purported arrest for unlawful logging – whether such conduct amounts to demanding with menaces.

The appellant was convicted of demanding Kshs 1000 with menaces contrary to section 302 of the Penal Code and sentenced to 18 months imprisonment.

The appellant who was an Administration Police Corporal arrested the complainant allegedly for logging without permit. When the permit was finally availed to him he claimed the permit should have indicated the size and not the acreage of trees to be felled. He therefore detained the complainant’s power saw and axe and asked to be given Kshs 1000/= to end the matter.

His appeal to the High Court on conviction and sentence was dismissed in its entirety. On second appeal he contended that there was no proof that he demanded Kshs 1,000/= from the complainant with menaces.

Held:

1. A demand with menaces need not be express. The demeanor of an accused person together with the circumstances of a particular case culminating with the victim’s understanding that a demand was being made upon him and that that demand was accompanied with menaces so that his balance of mind was upset would amount to a demand with menaces.

2. The list of the menaces is the answer to the question whether the menaces were if proved, likely to operate on or affect the mind of a person of ordinary firm courage and character by placing such person in the position revealed by the facts of the particular case.

3. Placing the complainant in the facts outlined and his reactions to the circumstances appertaining thereto, the Court cannot say with certainty that the appellant’s importunity for money from him amounted to a demand nor that it operated upon his mind so as to affect his balance and thereby acceded to it unwillingly.

Appeal allowed.

Cases

1. Rex v Falabhai Jethabhai & another (1946) 13 EACA 179

2. R v Thomas James Collister & Warhurst (1955) 39 Cr App Rep 100

3. Regina v Clear [1968] 1 QB 690; [1968] 1 All ER 74

Statutes

Penal Code (cap 63) section 302

Mwancha v Republic

Court of Appeal, at Nakuru December 23, 1992

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 26 of 1992

(Appeal from a judgment of the High Court of Kenya at Eldoret (Aganyanya, J) dated 15/11/91 in HCCRC No 8 of 1991

Criminal Law – self-defence – law relating to self-defence - considerations Court should take into account when accused pleads self-defence.

Evidence – accused plea of self-defence not having been disproved by the prosecution but Court nevertheless convicting him of manslaughter – validity of conviction.

The appellant appealed against his conviction for manslaughter contending that the said conviction was wrong as the evidence on record demonstrated a clear case of self-defence; and that the sentence of 4 years imprisonment was excessive in the circumstances of the case.

The brief facts were that at about 7.30 pm on 16th July, 1990 the appellant received a report originating from Kapsabet police divisional radio room to the effect that motor vehicle registration No KUV 944, Subaru, white in colour had been stolen in Kakamega area and was said to be heading towards Nandi area. In it were some armed men. The appellant was required to put up a road block to check on this vehicle. At about 8.00 pm, the appellant together with Corporal Harun Cheruiyot (PW15) booked out on patrol duties around Lessos trading centre. They did not trace this vehicle. The two police officers therefore returned to Lessos Police Station, where they booked themselves in and went to sleep.

Meanwhile, on the same day and at about the same time, the deceased who was travelling to Nairobi from Kakamega in his official motor vehicle registration No KYL 895, Nissan Sunny and was accompanied by his girlfriend together with her three weeks old child and two other persons decided to stop at Lessos trading centre for the night after the vehicle aforementioned broke down near the said trading centre

Once the appellant was booked in his room, he went into the nearby Salama bar where he and some of his friends drank beer until about 11.00 pm then moved to the next bar where they continued drinking. At about mid-night, the lights in the bar were put off as that was the closing time for the day’s business. The deceased and his friend had not at the time finished drinking the beer they had. He therefore asked the bar attendant why the lights were put off while they were still drinking. PW8 intervened and told the deceased and his companion to leave the bar as the legitimate time for drinking beer in the bar was over. He also refused the deceased’s request to be allowed to complete drinking his beer. In the meantime, the bar watchman, came into the bar flashing his torch with a view to ejecting the deceased and his friend out of the bar. As he did so, the deceased pulled out a pistol and pointed it at him. He then went out of the bar. Thereafter, the deceased who was dressed in a Kaunda suit left the bar together with his friend and at the verandah of the adjacent Salama bar where there was electric light he pulled out his pistol and dared PW3, PW7, and PW8 to say what you were saying while inside the bar to which PW8 responded by raising up his hands and said: “old man, go and sleep we have no problem with you.”

The trio however worried by the kind of person the deceased was decided to report to Lessos Police Station that there was somebody at Cheptungey bar and lodging who was armed with a pistol. On making this report, they were given three police officers who were in uniform. Two of the police officers were each armed with a G3 military rifle while the third police officer was armed with a “rungu” and returned to Cheptungey Bar & Lodging where they were led to the deceased’s room.

Outside that room the appellant knocked at the door which was locked from inside and identified himself and his colleagues as police officers. He told the deceased to open the door but the deceased said that he would not do so as he had committed no offence. The appellant continued knocking at this door while at the same time he was telling the deceased that he and his companions were police officers. Electric light was switched on in the room but the deceased did not open the door. Eventually, the appellant told the deceased that if he did not open the door he would break it. He then kicked the door four times in an attempt to break it open. Suddenly the door was opened and the deceased confronted the appellant pointing a pistol to him. According to the appellant, with this confrontation, he tried to dodge and found no way of escape. Immediately thereafter, it all became dark to him and impulsively he fired his loaded G3 military rifle. The deceased staggered backwards towards the bed he had been sleeping on dropping the pistol on the floor of the room and then sat on the said bed with his back leaning against the wall of that room. He died shortly afterwards as a result of a penetrating gunshot wound on the lower part of the right side of the abdominal cavity.

Held:

1. Where the issue is one of self-defence, it is desirable and indeed necessary to remind oneself that the state of mind of the accused, that is, his view of the danger threatening him at the time of the incident, is material.

2. The test of reasonableness is not, to put it at its lowest, a purely objective one. What is reasonable, judged from the viewpoint of an outsider looking at a situation quite dispassionately and the viewpoint of the accused himself with the intellectual capabilities of which he may in fact be possessed and with all the emotional strains and stresses to which at the moment of unexpected anguish he may be subjected to, is what would amount to his having done what he honestly and instinctively thought was necessary.

3. The appellant’s plea of self-defence was not disproved by the prosecution and his plea that he had committed no unlawful act starkly remained to be resolved.

Appeal allowed.

Cases

1. R v Whyte [1987] 3 All ER 416; 85 Cr App R 283

2. James Russel Shannon v R (1980) 71 Cr App R 192

3. Regina v Lobell [1957] 1 QB 547; [1957] 1 All ER 734; [1957] 2 WLR 524

4. R v Alan Abraham (1973) 57 Cr App R 799

5. R v Wheeler (1967) 52 Cr App R 28

Statutes

Penal Code (cap 63) section 205

Samwel Godfrey Otili v Republic

High Court, at Kisumu December 18, 1992

Mango J

Criminal Appeal No 55 of 1991

(From original conviction and sentence in Criminal Case No 120 of 1991  of the Principal Magistrate’s Court at Kisumu

Evidence – corroboration – child’s evidence – whether a child’s evidence needs corroboration before it can form the basis for a conviction.

Evidence – corroboration – sexual offences – whether corroboration is required in sexual offences.

Evidence – corroboration – sexual offences – where there is no corroboration – need for a magistrate to warn himself of the danger of acting on uncorroborated testimony – consequence of the failure of the Court to warn itself.

The appellant was charged and convicted in the lower court with defilement of a girl under fourteen years of age contrary to section 145(1) of the Penal Code. He was convicted and sentenced to 51/2 years imprisonment. He appealed against conviction on the grounds that the complainants evidence was not corroborated.

Held:

1. The unsworn evidence of a child needs corroboration, before a conviction can be founded on it. This being a sexual offence, corroboration was required both as to the act of defilement and the identity of the accused.

2. In sexual offences generally like rape, the trial magistrate should warn himself of the danger of acting on the uncorroborated testimony of the complainant. Having done so, he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If there is no such warning a conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.

3. As a matter of practice, the Court should always warn itself of the danger of convicting on uncorroborated evidence of a child.

Appeal allowed.

Cases

1. Chila v R [1967] EA 722

2. Maganga Msigara v R [1965] EA 471

Statutes

Penal Code (cap 63) section 145(1)

Advocates

Menezes for the Appellant

Karanja for the Respondent

[Ruling] – BANKRUPTCY LAW – discharge – application for discharge – where the application has not been brought on a manner prescribed by law – effect of – factors the court considers in such applications – validity of order

Charles Mutinda Kavemba v Republic

Court of Appeal, at Nairobi December 16, 1992

Masime, Gicheru & Muli JJ A

Criminal Appeal No 44 of 1992

(Appeal from a judgment of the High Court of Kenya at Nairobi  (Justice DC Porter) dated the 27th day of June, 1991 in the  High Court Criminal Appeal No 863 of 1990)

Criminal law - possession- criminal possession - essential elements of possession.

Criminal law-possession-key to a room containing heroin found in appellant’s hotel room-whether appellant can be deemed to be in possession of the room containing heroin.

The appellant’s first appeal having been dismissed by the High Court, filed a second appeal to the Court of Appeal against his conviction and sentence for the offence of being in possession of diacetylmorphine commonly known as “heroin” contrary to rule 9 of the Dangerous Drugs Rules as read with section 14 (1) (c) of the Dangerous Drugs Act, cap 245 Laws of Kenya and punishable under section 18(2) of the Act.

The brief facts were that on 9th March 1989, acting on information or a tip off, Chief Inspector Charles Mulandi (PW5) in the company of Corporal Samuel Kipgentich (PW1) and other police officers proceeded to Keekorock road where in an office, they met a man called Kingoo who, on being searched, was found to be in possession of what looked like heroin. While this was going on, the appellant appeared in the scene and was also searched and found in possession of Kshs 400/-. He admitted that the office was his. The office was also searched and nothing of evidential value was found. The appellant told the police that he lived in Naseems Annex Lodge and led the police there. He opened room No 6 which was searched and a sum of Kshs 18,000/= in a brown bag was found. On searching further, Chief Inspector Mulandi found a key in the pocket of one of the coats in the wardrobe labeled “1”. The appellant denied knowledge of room “1” but led the police there and opened the door with the key “1”. On one of the beds in the room No 1 were wrapped papers. Chief Inspector Mulandi opened one of the wrapped papers and suspected its contents to be heroin. He arrested the appellant and took the contents of the wrapped papers to the Government analyst who confirmed that the contents were in fact heroin. The appellant was charged with the offence and the thrust of the prosecution’s case as led during the trial was that the appellant was the occupant of room number 1 hence in possession of the heroin as he was in possession of the key to that room.

The appellant in his defense denied possession of the heroin stating that he was not the occupant of room 1 but someone else, who had booked out on the previous day.

Held:

1. In order to establish possession, actual or constructive, there must be evidence to establish exclusive control of room No 1 by the appellant to the exclusion of all other persons.

2. Since room No 1 was locked at the time, there must be evidence to establish that no other person had access to that room by showing peculiar nature of the lock and the absence of any duplicate or a master key which could open the door to that room

3. The prosecution did not prove guilt of the appellant to the required standard of beyond reasonable doubt. The appellant was entitled to the benefit of the doubt that he was not the only occupant of room No 1 to the exclusion of all others at the material time.

Appeal allowed.

Cases

Ruwala v R [1957] EA 570

Statutes

1. Dangerous Drugs Act (cap 245) sections 14(1)(c); 18(2)

2. Dangerous Drugs Rules (cap 245 Sub Leg) rule 9

Advocates

Mr Odhiambo for the Appellant

Mayfair Holdings Ltd v Walter Okech Odwar

High Court, at Kisumu December 16, 1992

Mango J

Civil Appeal No 10 of 1991

Employment Law- contract of employment - where there is no written contract between employer and employee - applicable law is employment Act- cap 226

Employment Contract - notice of termination - where an employer gives notice prescribed by law - whether employer is bound to give reasons for termination.

The respondent sued the appellant in the subordinate court seeking compensation for wrongful dismissal, leave severance pay and general damages.

At the conclusion of the trial the Court awarded one month’s pay, four month’s leave payment for the period served and Kshs 50,000/= as general damages.

On appeal it was noted that the respondent though had no written contract of employment was offered one month’s pay in lieu of notice which he claimed was little but later on took.

The respondent further claimed the appellant did not give any reason for terminating his services. Hence he argued that his dismissal was based on the fact that he was physically disabled therefore the same was unlawful.

Held:

1. Every contract of service without reference to time or to undertake a faurney shall, if made to be performed in Kenya be deemed to be a contract terminable by either party at the end of the period of twenty eight days next following the giving of notice in writing. If however the contract provides for a longer period of notice, then that longer period will apply.

2. The respondent herein was entitled to be given at least 28 days notice. He was given one month.

3. Once the terms are complied with, then the employer is not bound to give reasons for the termination and it would be wrong to say that he  did not give reasons and therefore the termination was unlawful.

Appeal allowed

Cases

No cases referred to

Statutes

Employment Act (cap 226) section 14(5)(iii)

Advocates

Mr Wasuna for the Appellant

Mr Olago - Aluoch for the Respondent

Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd

Court of Appeal, at Nairobi December 15, 1992

Gicheru, Cockar & Muli JJ A

Civil Appeal No 132 of 1987

(Appeal from a Judgment of the High Court of Kenya at Nairobi  (Mr Justice D K S Anganyanya) dated the 27th day of June, 1984  in Civil Case No 1430 of 1983)

Damages – breach of contract – general damages – where a party has proved breach of contract but has not quantified the damage suffered – whether the Court can proceed and award on the claim of general damages.

Damages – breach of contract – distinction between general damages and special damages.

By an oral agreement entered into between the appellant and the respondent the latter was to supply and to install telephone equipment in the appellant’s hotel at an agreed contract price of Kshs 274,000 inclusive of cost and equipment. According to the agreement 50% of the contract sum was to be paid on the delivery of the equipment and installation materials to the site and the balance was to be paid on completion. The respondent delivered some equipment and the installation material and even installed the equipment and later on changed the installation to a different location. Despite all this, the appellants never paid and filed suit. The appellant defended the suit and repudiated the agreement on the grounds that the equipment were defective and denied breach. The trial judge found for the respondents and awarded general damages for the breach of contract.

On appeal the appellant averred that the judge erred in awarding general damages in absence of any evidence to support the loss and the general damages were manifestly excessive. The respondent argued that the award was not excessive.

Held:

1. The distinction between general damages and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to resolve from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.

2. Although the respondents did not quantify the loss to be entitled to an award of special damages they in fact proved the breach of the contract but failed to prove the actual amount of the loss or any loss flowing from the breach of contract. The award of general damages was not available to them. The loss suffered was therefore capable of compensation by an award of nominal damages.

Cases

The Owners of the Steamship ‘Mediana’ v The Owners, Master & Crew of the Lightship ‘Comet’ [1900] AC 113

Texts

Chitty, J (1989) Chitty on Contracts London: Sweet and Maxwell 26th Edn p 117 para 1172

Statutes

No statutes referred

Advocates

Mr Kamara for the Appellants

Mr Khaminwa for the Respondents