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

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

Criminal Law-appeal-appeal from a conviction and sentence of the high court-high court having summarily rejected the appellant’s appeal-appellant claiming to have had an explanation as to how his fingerprints showed up on the stolen car-factors the court considers in such applications-validity of order

McDouglas Kagwa v Weekly Review Limited

Court of Appeal, at Nairobi November 6, 1992

Masime, Gicheru & Kwach JJ A

Civil Appeal No 39 of 1989

(Appeal from the Order of the High Court of Kenya at Nairobi (Mr Jusctice Rauf) dated the 24th day of January, 1989 in HCCC No 4903 of 1988)

Injunction – Mareva injunction – nature of a mareva injunction – whether courts in Kenya have jurisdiction to exercise the power under order XXXIX of the Civil Procedure Rules.

Injunction – Mareva injunction – persons against whom such an injunction may issue – where a person’s nationality is in doubt – whether a mareva injunction can issue.

The respondent applied for a temporary injunction under order XXXIX of the Civil Procedure Rules to restrain the appellant from withdrawing such sums as might be in his accounts in various banks. It also sought an order that a motor vehicle belonging to the appellant be retained at the CID headquarters. In the affidavits in support it was averred that the appellant was not a Kenyan citizen. The appellant in his replying affidavit stated that he was born in Kenya. The High Court granted the order of an injunction, which decision the appellant appealed from on the grounds that the judge exercised his discretion wrongly.

Held:

1. A “mareva” injunction can be granted against a defendant who though served within the jurisdiction and having assets in England, was likely to leave and withdraw the assets at short notice. This is a jurisdiction which Courts in Kenya can properly and usefully exercise under order XXXIX of the Civil Procedure Rules.

2. Where the Court grants a “mareva” injunction, it should also order a speedy trial of the action in order to avoid any possible injustice that may be caused to the defendant.

3. A “mareva” injunction cannot be issued against defendants who are permanently settled in Kenya and have their assets here.

Cases

1. Siskina (Cargo Owners) v Distos Compania Cia Naviera SA, The Siskina [1977] 3 All ER 803; [1979] AC 210; [1977] 3 WLR 818

2. Chartered Bank v Daklouche [1980] 1 WLR 107; [1980] 1 All ER 205

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rule 1(b)

Advocates

Mr Kibuthu for the Appellant.

Jane Betty Mwaiseje & 2 others v Republic

Court of Appeal, at Nairobi October 28, 1992

Masime, Cockar JJ A & Omolo Ag JA

Criminal Appeal No 17 of 1991

(Appeal from a conviction and sentence of the High Court of Kenya at Nairobi (B K Tanui, J) dated 22nd January, 1991 in Criminal Case No 47 of 1988)

Criminal Practice and Procedure - charge and cautionary statement - statement recorded by investigating officer - whether such statement is admissible in evidence.

Criminal Practice and Procedure - Judges’ Rules - whether breach of the rules automatically results in exclusion of a statement.

Criminal Law - evidence - video-taped evidence - whether omission to include under section 231 of Criminal Procedure Code bars admission of evidence.

The appellants were sentenced to death after being found guilty of murder. Their convition was based on retracted cofessions made by them which the trial court admitted after conducting a trial within a trial.

They filed an appeal against their conviction contending that the three inquiry and cautionary statements made by them were inadmissible and further that the learned judge erred in finding corroboration of the retracted enquiry statements and charge and cautionary statements.

It was submitted on behalf of the 1st appellant that she was arrested about one and a half years after the murder on information which the investigating officer already had from confessions of the other two appellants. Counsel further submitted that it was improper for the investigating officer to record the appellant’s enquiry statement.

Counsel further submitted that the 1st appelant’s confession was not voluntary having made an exculpatory one a few days after the death of her husband.

It was additionally urged on behalf of the 1st appellant that the cautionary statement was recorded in breaching Judges Rules as no warning was given to her that whatever she said would be put down in writing and would be produced in evidence. Besides there was no evidence that the charge and cautionary statement were read to her before making her statement.

All the three apppellants further complained that their cautionary statements were recorded by the police officer who was investigating the murder citing the case of Njuguna s/o Kimani and others v R (1954) 21 EACA 316 where the Court held that it is inadvisable if not improper, for the police officer who was conducting the investigation of a case to charge a suspect and record his cautioned statement.

The 2nd and 3rd appellants further objected to the production of video tapes showing them leading investigating officers to various scenes where the crime was committed. Their counsel argued that production of the video tapes was done contrary to section 231 of the Criminal Procedure Code which requires that documents relating to commital proceedings be compiled not less than 14 days before the date fixed for commital proceedings. It was further submitted that since no specific mention was made of video tapes in section 231(2)(c) they ought not have been produced.

Held:

1. If after being duly cautioned the accused person makes a statement, the Court sees no reason for excluding such evidence merely because the investigating officer of the case already knew something about it from the suspects.

2. The trial judge, however must fully satisfy himself that the statement in issue was in fact made by the accused person and that it had not come from the investigating officer’s prior knowledge of the circumstances of the offence.

3. The Court in its own evaluation of the evidence produced during the trial within a trial is satisfied that the 1st appellant not only gave the enquiry statement to the superintendent but also did so voluntarily and that the same was properly admitted in evidence by the trial judge..

4. Judges Rules are mere administrative directions for the guidance of the police officer and have no force of law. Therefore a breach of any of these Rules does not automatically result in the exclusion of the statement in question.

5. The admissibility or otherwise of a cautionary statement ultimately rests on the discretion of the judge in the exercise of which the question of prejudice being caused to the accused by the breach is the major factor.

6. The Court does not think the Court in Njuguna’s case, intended to lay down a rule of law that a statement recorded by an investigating officer upon charge and caution of a suspect is to be automatically excluded from evidence.

Obiter

It would be advisable for the caution or charge and caution to be incorporated in the statement in the language with which the accused is well conversant and the certificate at the end which bears the signature should likewise be made in the same language.

7. It is true that there is no specific mention in section 231(2)(c) of video tapes. The reason for that is clear because the use of video tapes in police investigations is a recent innovation in Kenya which section 231 of the Criminal Procedure Code was introduced in 1982. But for that reason alone evidence recorded on video tape or in any other form not in use so far, cannot be taken to have been intended to be excluded by the section.

8.Tape recording together with its transcription is admissible in evidence provided that a proper foundation for its reception has been laid.

9. Tape recording may be likened to eavesdropping as no caution in such cases is administered, video tape recording on the other hand is of the nature of an inquiry statement and is to be of a good evidential value. The exercise should be preceded by a caution to ensure that the accused knows what the exercise is all about and its likely consequences.

10. It would be a great loss to the administation of justice if our courts were to rule out the use and application of modern equipment made available to mankind through scientific advancement. Such equipment however, are liable to be misused and before admitting evidence obtained by their use, the trial court must be satisfied beyond reasonable doubt that such evidence was propery obtained and that no prejudice was occasioned to the accused person by the manner of their use.

Cases

1. Edong s/o Elal v Reginam (1954) 21 EACA 338

2. Njuguna s/o Kimani & 3 others v Reginam (1954) 21 EACA 316

3. Bassan & Wathobia s/o Kiambu v R [1961] EA 521

4. Karura v Republic [1988] KLR 724; [1982-88] 1 KAR 1165

5. Israeli Kamukolse & 5 others v Reginam (1956) 23 EACA 521

6. Raojibhai Girdharbhai Patel & another v Reginam (1956) 23 EACA 536

7. R v Maqsud Ali [1965] 2 All ER 464

Statutes

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

2. Criminal Procedure Code (cap 75) sections 87(a); 231(2)(c); 301(1)

Advocates

Mr Otieno for the 1st Appellant

Mr Ramogo for 2nd & 3rd Appellants

Mrs Njogu for the Respondent/ State

Peter Leo Baraza v Republic

Court of Appeal, at Nairobi October 21, 1992

Gachuhi, Gicheru & Cockar JJ A

Criminal Appeal No 89 of 1990

(An Appeal from the High Court of Kenya at Nairobi (Potter & Mbaluto, JJ) dated the 27th day of July, 1990 in HCCrA No 1995 of 1988)

Criminal Practice and Procedure – evidence of identification – accused convicted on the basis of visual identification evidence without proper warning – whether conviction safe.

Criminal Practice and Procedure – evidence – court’s duty to critically analyse the evidence – mere recital of evidence not enough.

Criminal Practice and Procedure – defence – duty of the Court to consider the defence put forward by the accused – section 169(1) Criminal Procedure Code.

The appellant was tried and convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. His first appeal against conviction was dismissed by the High Court hence the second appeal.

During the first appeal the appellant contended that the trial magistrate erred in holding that he was properly identified as one of the perpetrators of the crime charge without considering his defence. The appellant complained that the entire prosecution case depended on the alleged evidence of identification and having disputed his presence at the complainant’s home on the night of the attack his defence ought to have been considered critically and mere recital of the evidence adduced before the trial court could not support a bald statement that the prosecution had proved the case against him beyond reasonable doubt without first making any specific finding on such evidence.

The appellant further faulted the first appellate court arguing that it was wrong in upholding his conviction.

Held:

1. Where an appellant is convicted on the basis of visual identification, the trial magistrate or Judge should, before convicting in reliance on the correctness of identification, warn himself of the special need for caution and must give reason for such need bringing out in his own way the possibility that a mistaken witness can be a convincing one.

2. It is not enough merely to recite the evidence adduced before the trial court and without a critical consideration of the same proceed to hold that the prosecution had proved their case against the appellant beyond reasonable doubt.

3. However weak the defence put forward by an accused person may be, there is need for it to be considered and valid reasons for the court’s decision on it must be spelt out as is required by section 169(1) of the Criminal Procedure Code.

4. The appellant’s defence disputed his identification in regard to commission of the offence. Nothing was said about this defence by the trial magistrate. Without its consideration and findings made on it, the issue of the appellant’s correct identification remained unresolved.

Appeal allowed.

Cases

1. R v Turnbull & others [1977] QB 224; [1976] 3 All ER 549

2. R v Keane (1977) 65 Cr App Rep 247

3. Macharia v Republic [1975] EA 193

4. Ndege, Maragwa v Republic Criminal Appeal No 156 of 1964

5. Ali Abdulla Shivazi & another v Reginam (1956) 23 EACA 550

6. Attorney-General v David Marakaru [1960] EA 484

7. The Glannibanta (1876) 1PD 283

8. Coghlan v Cumberland [1898] 1 Ch 704

Statutes

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

2. Criminal Procedure Code (cap 75) section 169(1)

Advocates

Mr Akhaabi for the Appellant

Mrs Njogu for the Respondent

Young Kibae v Republic

Court of Appeal, at Nairobi October 21, 1992

Gicheru, Kwach & Cockar JJ A

Criminal Appeal No 53 of 1991

(Appeal from a conviction and sentence of the High Court of Kenya at Nairobi (Justices Porter and Mbaluto) dated 20th July, 1990 in  HCCRA No 881 of 1991)

Criminal Law-trafficking in drugs-possession-whether proof of legal title is necessary to prove possession.

Criminal Law-evidence-agent provocateur-whether evidence of such a person requires corroboration.

The appellant was tried, convicted and sentenced to five years imprisonment with a deportation order thereafter after he was found guilty of being in possession of heroin contrary to section 14(1)(c) of Dangerous Drugs Act.

His appeal to the High Court was dismissed hence an appeal to the Court of Appeal. On second appeal he contended that when the police arrived in the flat where he lived he was not in and that no evidence was led to show that he had legal title to the drugs in issue. He therefore contended to prove that police failed to prove possession.

The appellant further argued that the police reservist who set a trap for him to be arrested was an accomplice hence his evidence required corroboration.

Held:

1. A moveable thing is said to be in the possession of a person when he is situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons.

2. The drug was in physical control of the appellant. He entered into a deal to sell it, he produced a sample from his own stock and he undertook to pack it in such a manner that it could be carried through customs without being detected.

3. The police reservist was an agent provocateur, not an accomplice and his evidence therefore did not need corroboration.

Appeal dismissed.

Cases

1. Hussein Salim v Republic [1976-80]1 KLR 1671

2. R v Mealey and Sheridan (1975) 60 Crim App Rep 59; (1975) Crim LR 154

3. R v Mullins (1848)3 Cox CC 526

4. R v Bickley (1909) 2 Cr App Rep 53

5. Sneddon v Stevenson [1967] 2 All ER 1277; [1967] 1 WLR 1051

Texts

1. Stephen, J (1894) Stephen’s Digest of the Criminal Law, New York: 1st Edn Wharton

2. Cross, R; Tapper, C (Eds) (1985) Cross on Evidence London: Butterworths & Co Ltd 6th Edn p 217

3. Elliot, D (Ed) (1987) Manual of the Law of Evidence London: Sweet & Maxwell 12th Edn

Statutes

Dangerous Drugs Act (cap 245) section 14(1)(c)