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

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

Philip Odhiambo Masese v Republic

High Court, at Kisumu October 9, 1992

Khamoni J

Criminal Appeal No 244 of 1992

(From Original Conviction and Sentence in Criminal Case No 156 of 1991  of the Chief Magistrate’s Court at Kisumu: C O Ong’udi, Esq, C M)

Criminal law – manslaughter – offence of – contrary to section 202 as read with section 205 of the Penal Code – where one causes death of another, but there is no evidence of motive to kill – whether this constitutes manslaughter.

The appellant here faced a charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. It was alleged that on 26th June, 1990 at Esso depot in Kisumu, he unlawfully caused the death of James Aboke Mabao. The evidence was to the effect that the appellant was keen to have some fish for his consumption when he went round getting one or two from fishermen. When he came to the deceased, he declined parting with any of the fish saying he had visitors. The appellant decided to take fish by himself, got hold of one side of the string on which the fish was so that there was a tag of war between them. In the process the string got cut somewhere between the two men and as a result the deceased fell into the lake and died.

It was submitted on behalf of the defence that the appellant and his colleague were on duty. Somebody called them saying he wanted help as a person had drowned in the lake, they went to the scene, but could not see the person who had drowned.

Held:

1. There was no evidence of a motive to kill or even to do grievous harm. There was no intent necessary to constitute legal malice.

2. The appellant acted beyond the boundary of his duty as a police officer on patrol. What he did was unlawful because it caused the deceased to fall into the lake and drowned. It could therefore be presumed that the appellant intended the consequences that would naturally follow from his action as the deceased stood at the edge of the jetty with a possibility of falling into the water if the string got cut.

Appeal dismissed

Cases

R v Sharmpal Singh s/o Pritam Singh [1962] EA 13

Statutes

Penal Code (cap 63) sections 202, 205

Advocates

Mr Orengo for the Appellant

Fanuel SO Abwavo v Republic

High Court, at Kisumu March 13, 1992

Khamoni J

Criminal Appeal No 210 of 1991

(From original conviction and sentence in Traffic Case No 4508 of 1990 of the Principal Magistrate’s Court Kisumu. CO Ong’udi, Esq)

Criminal Practice & Procedure – charge – duplex charges – where an accused person is charged with driving recklessly or at a speed or in a manner dangerous to the public – whether such a charge is duplex.

Criminal Practice & Procedure – charge - duplex charge – whether the charge prejudiced the accused.

In the Principal Magistrate’s Court the appellant faced five separate counts each alleging death by dangerous driving contrary to section 46 of the Traffic Act, cap 403 Laws of Kenya. He was convicted on four of the counts and acquitted on one count. He appealed against the conviction and sentence submitting that each one of the counts which he faced were duplex.

Held:

1. Where a charge is bad for duplicity, the question of whether or not there was prejudice to the accused is not relevant since it is a matter of law that the accused must know with precision the offence with which he is charged.

Appeal allowed.

Cases

1. Uganda v Amisi [1970] EA 291

2. Maithaka s/o Gichinga v R [1963] EA 627

Statutes

Traffic Act (cap 403) section 46

Advocates

Mr Menezes for the Appellant

Mrs Muinde for the Respondent

Republic v William Adwera Oliech & 4 others

High Court, at Kisumu February 17, 1992

Khamoni J

Criminal Case No 15 of 1991

Evidence – confessions – where an accused person makes an extra judicial confession that implicates his co-accused – whether such a confession may be taken into consideration as against the co-accused – circumstances under which such confession may be considered.

Criminal Law – murder – common intention – circumstances under which a common intention can be inferred – consideration by Court.

Criminal Law – murder – common intention – where there is a common intention to cause harm – whether murder can be deemed to have been committed.

The accused persons were charged with murder contrary to section 203 as read with section 204 of the Penal Code. They were charged that they jointly murdered the deceased. The first accused person died in prison custody and the State withdrew the case against him.

Evidence on record was that the deceased was beaten by the accused persons on account that some money had been stolen and the person who admitted stealing it stated that he gave it to the deceased. The deceased was initially beaten by the second accused who later on handed the deceased and another person to the police.

The police continued beating the deceased with a view to compel him to state where the money was hidden. As a result of the beating he died whilst in police custody. It was submitted by the defence counsel that the accused person did not have any intention to cause grievous harm and they did not have a common intention.

Held:

1. If A makes an extra-judicial confession implicating unequivocally both himself and B, that confession is admissible and may be taken into consideration as against B as well as against A, subject, of course, to the conditions as to admissibility contained in the Evidence Act. But as against B, it has to be borne in mind that it is accomplice evidence involving the question of corroboration.

2. A common intention can be inferred where more than one person are acting together at the same time.

3. If there was an intention to cause grievous harm, murder would have been committed. If there was an intention to cause harm only, murder would not have been committed. But perhaps a lesser offence like manslaughter or assault causing actual bodily harm would have been committed.

Cases

1. Rex v Ndara s/o Kuruki & 7 others (1945) 12 EACA 84

2. Wanja Kanyoro Kamau v Republic [1965] EA 501

3. Dracaku s/o Afia v R [1963] EA 363

4. Tindira s/o Chiru and another v R (1951) 18 EACA 180

5. Rex v Okute s/o Kaliembi & another (1941) 8 EACA 78

Texts

Turner, JWC (1960) Kenny’s Outline of Criminal Law London: Butterworths & Co Ltd 17th Edn p20

Statutes

1. Penal Code (cap 63) sections 21, 203, 204, 251

2. Penal Code [Uganda] section 228

3. Criminal Procedure Code (cap 75) section 179(2)

John Opiyo Arunga v Republic

High Court, at Kisumu January 9, 1992

Khamoni J

Criminal Revision No 13 of 1991

Criminal Practice and Procedure – revision – application for – Criminal Procedure Code sections 362, 364, 365, 367 – where one is not given a chance to read allegations against him and hence defend himself – whether this is a proper ground for review.

On 19th November 1991, Police Inspector Dominic Mwaniki attached to divisional C I D Headquarters Kisumu swore an affidavit and had it filed in the Principal Magistrate’s Court making certain allegations against one John Opiyo Arunga and asked the Court to make an order for the said John Opiyo Arunga to execute a bond to keep peace. Inspector Mwaniki alleged that John Opiyo had been inciting people in Kisumu to join a party called FORD and that because of that he (Inspector Mwaniki) believed there was a breach of peace.

When called upon to show cause why he should not execute bond, John Opiyo replied that he had no knowledge of allegations. Instead of giving Opiyo a copy of affidavit to see allegations, allow him to read, call Inspector Mwaniki to adduce evidence, then allow John Opiyo Arunga to defend himself, the magistrate went ahead and ordered Opiyo to execute a bond of Shs 20,000 with surety and to keep peace for 6 months.

Held:

1. The term inciting was wrongly used in the matter. John Opiyo Arunga was merely wooing people to join a party called FORD.

2. There was no evidence that that party was illegal, and Inspector Mwaniki did not prove before the learned Principal Magistrate that by wooing people to join FORD, the applicant John Opiyo Arunga was thereby inciting people to violence or to disobedience of the law contrary to section 96 (c) of the Penal Code.

3. The applicant had denied knowledge of allegations made by Inspector Mwaniki, so he was condemned unheard. It follows therefore that the order made by the learned magistrate against John Opiyo Arunga on 19th November 1991 requiring that the said John Arunga executes a bond of Shs 20,000/- with a surety to keep peace for six months was not only against rules of natural justice, but was also unlawful.

Cases

No cases referred to.

Statutes

1. Criminal Procedure Code (cap 75) sections 3, 47, 48, 52, 53, 54, 64, 362, 364, 365, 367

2. Penal Code (cap 63) section 96(c)

Advocates

M/s Gumba Onywera & Company Advocates for the Appellant