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

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

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

David Mundia Onkoba v Republic

Court of Appeal, at Nairobi December 14, 1992

Gachuhi, Gicheru & Cockar JJ A

Criminal Appeal No 41 of 1990

(Appeal from a judgment of the High Court of Kenya at Nairobi (Porter & Mbaluto, JJ) dated 17th November, 1989 in HCCRA No 325 of 1989)

Criminal Practice and Procedure- plea of guilty – accused person pleading guilty after being kept in custody for a long time – whether plea unequivocal.

Criminal Practice and Procedure – arrest and detention - accused person pleading guilty after being kept in custody for a long period of time without complaining of the delay or ill treatment – whether plea can be set aside.

Criminal Practice and Procedure – language of court – accused person participating in proceedings in English and Kiswahili without manifesting any language related difficulty – whether the accused can raise the issue on appeal.

The appellant pleaded guilty to a charge of robbery with violence and was sentenced to death.

Prior to his conviction and sentence, the trial Court on more than one occasion warned the appellant that the consequence of his plea would be that he is sentenced to death to which he responded that he understood the consequence and was prepared for it.

Upon conviction however the appellant filed an appeal claiming that having been kept in police custody for 47 days his plea was unequivocal. He further claimed that the court proceedings were conducted in English and Kiswahili both languages in which he was less proficient.

The 1st appellate court and the Court of Appeal observed that the appellant at the trial neither complained about the period he was kept in custody prior to the plea nor of any ill-treatment. The court record further did not reveal any language related difficulties.

Held:

1. An absence of an acceptable explanation to the Court taking plea for keeping an appellant in police custody for such a long period can be a strong ground of appeal to set aside the plea.

2. In this particular case the appellant did not complain to the Principal Magistrate that he had been kept in police custody for 47 days or that he had been ill-treated.

3. A perusal of the record amply confirms that the appellant had not encountered any language related difficulty and had understood and participated intelligently in all proceedings.

Appeal dismissed.

Cases

Ndede v Republic [1991] KLR 567

Statutes

Penal Code (cap 63) section 296(2)

Advocates

Mr Maosa for the Appellant

Wilfred Indiasi Lianda & 2 others v Republic

Court of Appeal, at Kisumu December 4, 1992

Gachuhi, Kwach & Cockar JJ A

Criminal Appeal No 87 of 1992

(Appeal from a judgment of the High Court of Kenya at Kakamega  (Mr Justice Osiemo) dated 15th January 1992, in HCCRA Nos 465-467 of 1989)

Criminal Law - evidence - identification - whether being in company of suspected robbers earlier in the day of robbery is sufficient evidence of being part of the robbery gang.

The three appellants were tried and convicted by District Magistrate of the offence of robbery contrary to section 296 (1) of the Penal Code and sentenced to 2 years each with two strokes. Their first appeal to the High Court was dismissed.

The second appeal to the Court of Appeal was solely on identification by prosecution

The Court of Appeal while upholding the conviction of the 1st and 3rd appellants on the grounds that their identification was sufficient were doubtful as to the identification of the 2nd appellant. The only victim who claimed to have identified the 2nd appellant was the complainant. The trial magistrate while conceding that it was possible that the complainant might not have identified anybody as he believed the intruders were policemen all the same convicted him on the basis that had earlier in the day been with the other appellants.

Held:

1. A mere association for a certain period with identified criminals without any independent evidence to provide a positive link with the commission of the crime can never be a basis for a conviction.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1)

Advocates

Mr Mukavale for the Appellants

Mr Karanja for the Respondent

Mary Wesonga v Republic

Court of Appeal, at Kisumu December 4, 1992

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 120 of 1991

( Appeal from a Judgement of the High Court of Kenya at Kakamega  (Osiemo J) dated 24/10/90 in HCCR Appeal No 149 of 1990)

Criminal Law-stealing- fraudulent intent an essential ingredient.

Criminal Law -stealing-fraudulent intent-whether conviction in the absence of fraudulent intent is proper.

The appellant who was found guilty but discharged of the offence of stealing by a person employed in the public service contrary to section 280 of the Penal Code, unsuccessfully appealed to the High Court.

The only evidence, the basis of which she was convicted was her acknowledgement of shortage of money received by her for payment to cotton farmers.

Apart from the acknowledgement there was no evidence, that she stole the money.

In dismissing her first appeal the learned judge observed that there was clear and overwhelming evidence, which militated against interfering with the trial magistrates finding.

Held:

1. Fraudulent intent is a specific ingredient of the offence of stealing.

2.Credible evidence to the effect that the appellant stole the money reflected in the two counts of stealing was lacking.

3.There was a clear absence of any attempt to prove fraudulent intent on the part of the appellant. This being a specific ingredient of the offence with which the appellant was charged in the two counts, its absence was fatal to her conviction.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 35(1); 268(1); 280

Advocates

Mr Karanja for the Respondent/ State

Intona Ranch Ltd v Joseph Thomas O’Brien

Court of Appeal, at Nairobi December 1, 1992

Gachuhi, Cockar & Muli JJ A

Civil Appeal No 107 of 1990

(Appeal from an Order of the High Court of Kenya at Nairobi (Mr Jusctice Tanui) dated the 2nd day of November, 1989 in Winding Up Cause No 9 of 1989)

Company Law – winding up – where there was no evidence to show that a company is insolvent – where a company made an offer of payment which was rejected by the petitioner – whether a winding up order can be issued by Court.

Company Law – winding up – where the notice issued under section 220 is disputed – duties of a Court under section 220 where the debt is equivocal.

Company Law – winding up – where it is alleged that a company is insolvent – the burden is borne by the petitioner.

Company Law – winding up – circumstances under which a winding up order can issue – facts which a petitioner needs to establish.

The appeal arose from an order of the superior court directing that the company be wound up under the provisions of the Companies Act cap 486 and appointing the official receiver to be the provisional liquidator of the Company.

The petitioner (the respondent in the appeal), presented a petition stating that the Company was the principal debtor of Trade Bank Ltd and as such it was obliged to indemnify him as the guarantor and surety to the extent of the sum he placed in a fixed deposit with the bank together with accrued interest and which deposit was appropriated by the bank to liquidate the outstanding overdraft. The petitioner prayed for the winding up of the Company for having been unable to meet its debt to the extent of the guaranteed debt, which was granted by the Court.

On appeal, the Company argued on whether the appellant Company was insolvent and unable to meet its debt. As the Company was not insolvent as it was in a position to pay the Company’s guaranteed debt but the respondent refused to accept the payment. In any event the notice under section 220 of the Companies Act demanded “the Company guaranteed debt” which was admitted as well as “the steers purchase debt; which was disputed.”

Held:

1. There was no evidence to show that the Company was unable to pay its debts because there was a genuine offer which was rejected by the respondent. Additionally the admitted part of the Company’s guaranteed debt was included in the same demand notice which claimed the disputed steers purchase debt. With such dispute then the notice under section 220 of the Act became disputed.

2. The entire debt became equivocal and the Court was duty bound under section 220 of the Companies Act, firstly, to ascertain whether the demanded debts (Company’s guaranteed debt and the steers purchase debt) were due and secondly whether the Company had neglected to pay or to secure or compound for it and thirdly whether there was proof to the satisfaction of the Court that the company was unable to pay its debts (s 220 (c)).

3. The onus to show that the debt was due was on the respondent. Similarly the onus to prove that the Company was unable to meet its debts was on the respondent.

4. It is settled law that the winding up order is not automatic. There must be proof of insolvency and/or liability on the part of the company to pay its debts.

5. Petition for a winding up order of a company should never be presented as a means of exerting pressure to pay even an admitted debt where there is no evidence of insolvency and inability to meet the debt.

Appeal Allowed.

Cases

1. In Re the London Wharfing and Ware-Housing Co Ltd (1865) 35 BEAV 37; 55 ER 808

2. In Re London and Paris Banking Corporation (1875) LR 19

3. Re Bellador Silk Ltd [1965] 1 All ER 667

Statutes

Companies Act (cap 486) section 220 (c)

Advocates

Mr Kivuitu & Onyimbo for the Appellant

Mr Sandhu for the Respondent