Dominic Mwalugha v Republic

High Court, at Mombasa December 23, 1993

Mbogholi - Msagha J

Criminal Application No 189 of 1993

Bail – Bail pending appeal – application for – issues the Court will consider in such application – whether the fact that the intended appeal has overwhelming chances of success is a relevant consideration.

The appellant was charged with the offence of being in possession of cocaine contrary to rule 9 of Dangerous Drugs Act cap 245 Laws of Kenya. The charge was read to him and he said it’s true, the facts also read to him and he responded that the facts were correct. He was convicted and sentenced to 18 months imprisonment. He thereafter filed an appeal against both conviction and sentence and also bail pending hearing of the said appeal.

He stated that the plea of guilty was not unequivocal that it was not established that he understood the offence preferred against him, that the answer to the charge did not establish his guilt and finally that the sentence was harsh and excessive.

Held:

1. The prosecution had the duty, even in a plea of guilty, to prove that the applicant was guilty beyond any reasonable doubt.

2. The subject mater alleged to have been cocaine found in possession of the applicant was not proved as such and no government analysts’ report was produced to the Court and put to the applicant. This showed that the applicant’s report had overwhelming chances of being successful.

Application for bail granted.

Cases

Somo v Republic [1972] EA 476

Statutes

Dangerous Drugs Rules (cap 245 Sub Leg) rule 9

Gateway Insurance Company Limited v Paul Kamau Waithaka

Court of Appeal, at Nairobi December 20, 1993

Gicheru, Muli & Tunoi JJ A

Civil Appeal No 33 of 1993

(Appeal from the Ruling and Decree of the High Court of Kenya at Nairobi

of the Honourable Mr Justice Tank dated 29th April, 1992 in

High Court Civil Case No 670 of 1992)

Insurance – third party notice – notice to an insurer of the filing of proceedings against the insured – form of such notice – whether a letter seeking clarification as to whether liability is declined constitutes a proper notice - Insurance (Motor Vehicle Third Party Risks) Act sections 10(1), 2(a).

On 23rd March, 1990, a motor vehicle belonging to one Pauline Kimuyu was involved in an accident in which the respondent suffered serious personal injuries. By a letter dated 10th May, 1990 addressed by the respondent’s advocates to the vehicle owner and copied to the appellant as the insurer of the vehicle, the advocates demanded an admission of liability for the accident and gave notice that unless the admission was received within 14 days from the date of the letter, they would institute legal proceedings. The appellant acknowledged receipt of the letter and asked for time to conduct an investigation.

In due course, the respondent allegedly instructed another firm of advocates who on 11th October, 1990, wrote to the appellant setting out the particulars of the accident and the insurance policy and stating that unless they received a satisfactory reply within 10 days, they would initiate proceedings against the appellant. That letter expressly put it to the appellant to treat it as a third party notice issued pursuant to the Insurance (Motor Vehicle Third Party Risks) Act. Having not received a response to the letter, the respondent filed a suit in negligence against the vehicle owner in which the High Court entered judgment in his favour and awarded him over Kshs 2.8 Million in damages. A decree to that effect was issued on 23rd January, 1992.

By an amended plaint filed in the High Court on 21st February, 1992, the respondent brought an action against the appellant as the insurer of the motor vehicle. The basis of the suit was that by virtue of section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, the appellant was liable to pay him the amount set out in the judgment with costs and interest. In its defence, the appellant denied receiving the letter of 11th October, 1990 and stated that it had not been notified of the institution of the first suit as was required by section 10(2)(a) of the Act and therefore, the respondent was not entitled to enforce the judgment against it.

The respondent then applied for summary judgment arguing that the appellant’s defence was a mere denial since from the correspondence and civil process documents concerning the claim, not least the letter dated 10th March, 1990, the appellant had notice of the respondent’s intention to file the first suit.

The High Court found that the requisite notice had been given to the appellant and granted the application for summary judgment against the appellant. The issue for determination on the appellant’s appeal against that decision was whether the appellant had notice of the bringing of the proceedings in terms of section 10(2)(a) of the Insurance (Motor Vehicles Third Party) Risks Act.

Held:

1. The Insurance (Motor Vehicle Third Party Risks) Act section 10(2) does not indicate what kind of notice is required. However, such notice should be formal. A letter seeking clarification as to whether or not liability is declined is not good notice even if it is inferred that proceedings would be brought if liability was declined.

2. Where there is a statutory requirement of notice, that requirement must be strictly fulfilled. An intimation that in certain circumstances proceedings might be brought, but not necessarily that they will be brought, will not do.

3. The letter of 10th May, 1990 sought an admission of liability by the insured and it was copied to the appellant in case it chose to respond on her behalf. That letter was not a notification to the appellant of the bringing of the proceedings in terms of section 10(2)(a) of the Insurance (Motor Vehicle Third Party Risks) Act.

4. However, the letter to the appellant dated 11th October, 1990 which spelt out the name of the insured, the insurance policy and the claimant’s name clearly stipulated that the appellant was to treat it as a third party notice issued under the Act. On a balance of probabilities, that letter was delivered and received by the appellant on 11th October, 1990 with the result that the appellant had the requisite notice under section 10(2)(a).

5. In the circumstances, the respondent was rightly entitled to summary judgment.

Appeal dismissed with costs.

Cases

1. Weldrick v Essex & Suffolk Equitable Insurance Society Ltd (1950) 83 LI R 91

Texts

Mac Gillivray, EJ; Parkington, M (Eds) (1988) Mac Gillivray & Parkington, Insurance Law London: Sweet & Maxwell 8th Edn para 2075 p 932

Statutes

1. Insurance (Motor Vehicle Third Party Risks) Act (cap 405) sections 5(b); 10(1), (2) (a)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rules 1, 2

John Wambua Kiiti v Republic

High Court, at Kisumu December 17, 1993

Mango J

Criminal Appeal No 242 of 1992

(From Original Conviction and Sentence in Criminal Case No 2602

of 1989 of the Resident Magistrate’s Court at Winam:

F M O Kadima Esq RM

Criminal Practice and Procedure – acquittal and discharge – where one is acquitted since no evidence has been adduced – whether such acquittal may be made under section 210 of Criminal Procedure Code.

On 14th June, 1990, the accused’s case came up for hearing and the witnesses for the prosecution were not in Court. The prosecution therefore sought adjournment of the case stating that he did not know why the witnesses did not attend. The application was however opposed by the accused’s counsel, whereby the trial magistrate upheld the objection and ordered trial to proceed. Since the prosecutor had no evidence to offer, the accused was acquitted under section 210 of the Criminal procedure Code.

Held:

1. If at the close of the evidence in support of the charge and after hearing such summing up, submission or argument, as the prosecutor and the accused person or his advocate may wish to put forward, if it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall discuss the case and forthwith acquit him.

2. There was no evidence and indeed, the prosecutor had not even started to adduce evidence.

3. An acquittal and discharge under section 210 of criminal procedure code was wrong.

Appeal allowed.

Cases

No cases referred to

Statutes

Criminal Procedure Code (cap 75) sections 87 (a); 210

Advocates

Mr Kiplagat for the Appellant

King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd & another v M/s Kaplan & Straton Advocates

Court of Appeal, at Nairobi December 16, 1993

Muli JA

Civil Appeal No 55 of 1993

(Appeal from the ruling and order of the High Court of Kenya at Nairobi

(Mr Justice Shields) dated 25th February, 1993

in HCCC No 279 of 1993)

Advocate/client – conflict of interest - advocate acting for several parties – whether such advocate can proceed to act for one or more of the parties against the other(s) in a suit involving a matter where he/she was their common advocate.

Advocate/client – retainer – nature of - personal to each client - fiduciary relationship between client and advocate - whether there is a fiduciary relationship between two or more clients of a common advocate.

The appellants sort injunction in the superior court to restrain the respondent from acting in a matter involving the appellants and two other defendants on the grounds that the respondent was a common advocate for all the parties in that suit.

The application for injunction was dismissed by the superior court prompting an appeal. It was argued on behalf of the appellant that the respondents having drawn the loan agreement, the debenture, the legal charge as well as the legal opinion on behalf of the lenders and the appellants were disqualified from acting for the lender in any subsequent litigation or dispute arising from the same loan transaction in which the validity of the loan and security documents were challenged.

The question for determination by the Court of Appeal was whether the respondents having accepted to act for both the appellants and the Acceptances in the loan transaction between the appellants and the London Bank and the acceptances, they were in breach of their fiduciary relationship of client and advocate by representing the lenders in any litigation arising from the said loan transaction in which the validity of the loan and security documents were challenged.

Held:

1. Once the retainer is established, then the general principle is that an advocate should not accept instructions to act for two or more clients where there is a conflict of interest between those clients.

2. The retainer created a contractual relationship between the advocate and the client irrespective of whether two or more clients are involved. That is to say that the relationship is not tripartite, each client has a separate retainer relationship with the common advocate.

3. The respondents’ advocates having accepted to act for the appellants, the borrowers and the lenders, in putting together the loan transaction had a duty to the borrower and should not subsequently act for the lenders to enforce repayment of the loan because the advocate had obtained relevant knowledge of the borrower’s financial position when acting for him in connection with the original loan transaction: in these circumstances, he would take unfair advantage prejudicial to the borrowers if he so acts for the lenders because of apparent conflict of interest.

4. The fiduciary relationship created by the retainer between client and advocate demands that the knowledge acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without that client’s consent. That fiduciary relationship exists even after conclusion of the matter for which the retainer was created. This principle applies equally where an advocate acts for two or more clients in the same transaction or subject matter because the retainer is specific between the individual client and the common advocate.

5. There exists no fiduciary relationship between the two or more clients of the common advocate.

6. Although the common advocate acting for two or more clients will be able to complete the transaction speedily and save expense by engaging one common advocate; this fact alone is for convenience only and does not affect the general principle that he should not so act or divulge the confidential information received without the consent of the client in the retainer.

Appeal allowed.

Cases

1. United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898; [1982-88] 1 KAR 639

2. Radusen v Ellis Munday & Clerke [1912] 1 Ch 831; [1911-13] All ER Rep 813

3. Solicitors, Re a firm [1992] 1 All ER 353; [1992] QB 959

4. Supashare Retail Ltd v Coward Chance (afirm) [1991] 1 All ER 668; [1990] 3 WLR 1278

Statutes

No statutes referred.

Texts

Orderly on Solicitors 7th edition page 70

Advocates

Mr Kamau for Appellants

Mr Huram for the Respondents

Mbothu & 8 others v Waitimu & 10 others

Court of Appeal, at Nairobi December 10, 1993

Kwach, Akiwumi &Tunoi JJ A

Civil Application No NAI 233 of 1993

(Appeal from the Ruling of the High Court at Nairobi

(Shields J) delivered on August 11, 1993)

Damages – assessment of – court assessing quantum of damages in the absence of counsel for the defendants and after declining application for adjournment on behalf of defendants’ counsel - whether prejudice occasioned to the defendants.

Civil Practice and Procedure – decree – application for execution of – judgment creditor causing issuance of decree without notifying the defendant – whether execution proper – order 20 rule 7 Civil Procedure Rules.

The applicants sought a stay of execution under rule 5 (2) (b) of Court of Appeal Rules after the High Court dismissed an application seeking to set aside ex-parte judgment obtained against them by the respondents.

The trial judge had declined to grant an application for adjournment made on behalf of the applicants’ counsel on the day the case came up for assessment of damages.

Having obtained ex-parte judgment the respondents caused a decree to issue without notifying the applicants’ advocate.

Held:

1. The fact that the applicants had been deprived of an opportunity to challenge the quantum of damages awarded against them was some evidence of prejudice.

2. The assessment undertaken in the absence of the applicants and the circumvention of the rules governing the preparation of decrees must have been intended to make it difficult, if not impossible for the applicants to do anything about the award.

3. The applicants had established that they had an arguable appeal which, if successful, would be rendered nugatory if a stay was refused.

Application allowed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XX rule 7; order XXIII rule 11

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

Advocates

Mr Nowrojee for the Applicants

Mr Baiya for the Respondents

Land law-sale agreement-declaration that LR No 450 Ol Joro Orok West belongs to the plaintiff and that defendants 1, 3, 4 and 5 are trespassers-declaration that the sale agreement between the plaintiff and the defendant became valid on the first defendants failure to honour his part of the agreement-claims that the plaintiff since filing the case had become of unsound mind and could not prosecute the case-proof of-where the land in dispute is in a settlement area

Land Law-Trespass-suit for a declaration that the land in question belonged to the plaintiff and the defendants were tress passers-where the land in dispute was a settlement area-where the evidence showed that the plaintiff had sold the land to the first defendant- whether the plaintiff had proved his case on a balance of probabilities

James Muriuki v Republic

High Court, at Nyeri December 7, 1993

Ang’awa J

Criminal Appeal No 206 of 1993

Evidence – child /Minor – evidence of a child of tender years – how such evidence should be treated – where the Court fails to warn itself before taking such evidence – whether such failure should affect the verdict of the court.

Evidence – identification evidence – where one is arrested more than two days after commission of crime – whether identification parade should be conducted in such instance.

Evidence – expert evidence – whether a doctor should be called to give evidence on P3 form, being the maker – whether a police officer can give evidence on P3 report.

The appellant was charged with offence of defilement of a girl contrary to section 145(1) of the Penal Code. The facts are that on 24th March, 1993 at Kimunye village in Kirinyaga District, of Central Province, had carnal knowledge of R N, [particulars of her full name with a girl under the age of 14 years.

Only 4 witnesses gave the evidence. PW2, the mother of complainant and PW3 the hair dresser were both not present when the offence was committed. PW4, the arresting officer who arrested accused upon identification of accused being pointed out more than 2 days after commission of the alleged crime. He later produced P3 form filled by the doctor.

The trial magistrate asked the complainant the meaning of telling the truth and proceeded to record that the child understands without further warning herself before admitting evidence of a minor.

The defence’s contention was that the presiding magistrate failed to warn herself before admitting the evidence of the child of tender years, therefore the conviction should be quashed.

Held:

PW2, the mother of the child and PW3, a hair dresser, were both not present when the offence was committed.

2. The trial magistrate did not warn herself in admitting the evidence of a minor. The golden words being “this Court warns itself of admitting the evidence of the minor”.

3. Where corroboration is necessary and the trial court has neither directed itself to the need nor has in fact looked for corroboration, the appellate court will not itself consider whether corroboration existed, unless circumstances are such that it is quite clear that there had been no failure of justice.

4. PW4 the arresting officer arrested the accused 2 days after the alleged incident. It was important that identification parade be held but it was not.

5. It was imperative that the makers of P3 form be called to give evidence on their report since a police officer is unsuitable to answer medical questions if raised.

6. The relevant exhibits which are the underpants of both the complainant and the accused and the spit of the accused should have been forwarded through the doctor to the government analyst.

7. It was clear from the evidence that PW2, the mother of the complainant, washed the complainant. This therefore meant that the vital evidence was destroyed.

8. There was a claim by the accused that he was insane, and if this was correct, then he was entitled to plead it at his defence.

Appeal allowed.

Cases

1. Maganga Msigara v Republic [1965] EA 471

2. Maina v Republic [1970] EA 370

3. Thuo v Republic [1988] KLR 763

Statutes

1. Penal Code (cap 63) section 145(1)

2. Evidence Act (cap 80) section 77

3. Criminal Procedure Code (cap 75)

Pius Olima & another v Republic

Court of Appeal, at Nairobi December 7, 1993

Gicheru, Cockar & Akiwumi JJ A

Criminal Appeal No 110 of 1991

(Appeal from a conviction and sentence, judgment order, or as the

case may be of the High Court of Kenya at Nairobi

(Mr Justice Porter & Mbaluto) dated 23rd October, 1991

in HC CR A No 1332, 280 of 1990, 1991 respectively)

Criminal Practice and Procedure - retrial - order for a retrial - circumstances in which an appellate court can order for a retrial - matters the court will consider.

The appellants were tried and convicted by the Senior Resident Magistrate at Voi of corruption and sentenced to six and seven years imprisonment on each count respectively – both sentences to run concurrently.

During their trial, their counsel had applied for adjournment but the application was refused because the trial magistrate felt that the accused persons were deliberately delaying the case. Counsel for the appellants then withdrew their representation and the Court proceeded with the appellants being unrepresented.

The appellants consequently declined to participate in the trial and did not call any witness or cross-examine any of the prosecution witnesses. They appealed against their convictions.

The High Court, in a considered ruling, emphasizing the appellants’ right to counsel, and ordered a retrial before another magistrate of competent jurisdiction.

The appellants were dissatisfied with the order and they filed an appeal against it in the Court of Appeal.

The appellant’s main contention on their second appeal was that the order for retrial was erroneous considering that there was a previous hearing which was terminated and that they had served almost one year in custody. Counsel therefore contended that a retrial would be prejudicial to the appellants.

Held:

1. A retrial may be ordered where the original trial is defective, if the interests of justice so require and if no prejudice is caused to the accused.

2. Whether an order for retrial should be made ultimately depends on the particular facts and circumstances of each case.

3. In the interest of justice in the particular circumstances of the instant case and having regard to the defective trial justified the order of retrial.

Appeal dismissed.

Cases

1. Sumar v Republic [1964] EA 481

2. Manji v Republic [1966] EA 343

3. Muyimba v Uganda [1969] EA 433

4. Merali & others v Republic [1971] 221

5. Otieno & another v Republic [1991] KLR 493

Statutes

Employment Act (cap 226)

Advocates

Mr Onyango Otieno for the Appellants