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

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

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)

Peter Wambua t/a New Tawa Tyre trading v Retail Hardware & Sanitary Stores Ltd & another

High Court, at Mombasa December 6, 1993

Wambilyangah J

Civil Case No 56 of 1989

Civil Practice & Procedure - setting aside of attachment – where one fails to establish his claim as per provisions of order XXI rule 56 of Civil Procedure Rules – whether the Court should set aside attachment.

The plaintiff in this case, filed a suit against the defendant for Kshs 132,000/. The defendant denied liability, but made a set off and counter claim for Kshs 45,000. The defendant however failed to file replying affidavit and grounds of opposition and summary judgment was entered for the plaintiff. The plaintiff then intimated the intention to proceed with the attachment whereupon there was no objection within the stipulated time.

Held:

1. Nalish Ambalal Patel and his co-director had intended to defraud the plaintiff and deny him the fruits of judgment by causing the defendant to be dissolved and then dissipate its assets.

2. It was clear that the attaching creditor was entitled to proceed with the attachment once a copy of the notice under order XXI rule 56 was not served upon him and after 10 days expired before objectors had established its claim.

Application dismissed with costs.

Cases

No cases referred to

Statutes

1. Judicature Act (cap 8) section 5(1)

2. Civil Procedure Act (cap 21) section 3A

3. Civil Procedure Rules (cap 21 Sub Leg) order XXI rules 53, 54, 56, 57 ; order L rules 1, 2,16 (1)

Advocates

1. Mr Kenzi for the Plantiff

2. Mr Abdullah for the Defendant

Precast Portal Structures v Kenya Pencil Company Ltd & 2 others

High Court, at Nairobi December 1, 1993

Kuloba J

Civil Case No 969 of 1990

Civil Practice and Procedure – execution -attachment – application for raising of attachment – where judgment debtor sells suit land to objector after judgment is entered against judgment debtor in respect of the suit property, then claims he will suffer loss if application dismissed – whether the judgment debtor could be deemed to have an interest in the suit property – whether objection should be disallowed on this basis.

Civil Practice and Procedure – execution objection proceedings – release from attachment – factors Court considers for or against release of property from attachment.

This was application, brought by objectors seeking an order that the attachment made by the plaintiff on the property known as Nakuru Municipality Block 8/73 be raised and the prohibitory order registered against the title of the said plot be removed. The objector Mr Livingstone Atebe Marita said he bought the plot with Dilip Patel, in 1991 and obtained certificate of lease. He deponed therefore that the plot was wrongfully attached. On the other hand, Shantilal Shah, one of the directors of the plaintiff swore affidavit stating that the purported transfer of the property attached was not in good faith and was intended to defeat the anticipated decree against the defendant.

The judgment debtor contented that it had disposed off the plot, but nonetheless, further went on to state that if the plot was sold then the judgment debtor would suffer an irreparable loss.

Held:

1. The judgment - debtor’s claim that if the parcel of land were disposed off he would suffer irreparable loss, was unfounded since if it was time that the judgment - debtor company had sold the plot to other people, and it had no interest in the plot, then how was it to suffer irreparable loss by disposing what was no longer his.

2. A release from attachment may be made if the Court is satisfied that the property was not, when attached, held by the judgment- debtor for himself, or by some other person in trust for the judgment- debtor; or that the objector holds that property on his own account.

3. Where the Court is satisfied that ownership of the property changed whereby the judgment –debtor has been divested of the property in order to evade execution or the change is tainted with fraud, the court shall dismiss the objection.

4. The property was held on behalf of the judgment – debtor, or that it was sold in order to defeat the legal process, and that the objector was attempting knowingly to assist the judgment – debtor in the scheme. There was no bona fides in the transfer of leasehold from judgment debtor, only on paper.

Objection disallowed

Cases

No cases referred to

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXI rules 53, 57

2. Civil Procedure Act (cap 21) section 44

Advocates

Mr Joshi for the Applicant

Mr Sheth for the Decree Holder

Mr Kamera for the Respondent

Siteyia v Gitome & 3 others

High Court, at Nairobi December 1, 1993

Kuloba J

Civil Case No 4321 of 1991

Injunction – temporary injunction – factors to be considered before the grant of a temporary injunction.

Equity – principles of equity – where one fails to prevent a suit against him from maturing into a decree – diligence – whether one is entitled to any relief at equity.

This was an application for a temporary injunction to restrain the defendants from further charging, leasing, disposing of, selling or interfering with the suit premises until the suit was heard and determined. The applicant stated that the first defendant in a suit obtained judgment against him in a 1988 suit, for Kshs 346,000. The defendant, in execution of the decree attached and sold the plaintiff’s land by public auction to the second defendant, which auction was conducted by the 3rd defendant. The purchaser offered it as security to obtain loan.

The applicant was sued in the earlier case but did not file a and in default of defence, judgment was entered against him for the sum claimed.

The suit land was not about to be sold since it was used as a security to obtain loan and therefore the applicant did not show how he was going to suffer the alleged injury.

Held:

1. He who seeks equity must do equity, and that he who comes into equity must come with clean hands.

2. The applicant did not show what injury he was likely to suffer before the determination of the suit and whether such injury the parable unless injunction issued at once.

3. The applicant did not show to the Court what land he was talking about, its unique features, its special nature and whether any damages could not afford the applicant to get another land, or why the applicant could not do without the suit land.

4. The applicant did not show what expeditious steps he took to prevent the 1998 suit against himself, from maturing into a decree against him. The applicant was not diligent. Such conduct disentitled him to any relief at equity.

Application dismissed.

Cases

No Cases referred to

Statutes

No statutes referred.

Advocates

Mr Machira for the Applicant

Mr Gathenji for the second Respondent

Mr Gatonye for the first and third Respondent

Miss Kittony for the fourth Respondent

Githunguri & another t/a Githunguri & Collins Architects v Kenya Railways Corporation

High Court, at Nairobi November 30, 1993

Bosire J

Civil Suit No 2461 of 1992

Arbitration – arbitration clause – where parties enter into contract with a provision for the reference of any disputes to arbitration – where a party sues another and sued party files defence and replying affidavit – whether a party may rely on arbitration clause to contest jurisdiction of the Court to hear the case.

This was an application for summary judgment expressed to be brought under order 35 Civil Procedure Rules. The plaintiffs had made a liquidated demand for monies they said was the balance of sums due to them from defendants for services rendered to them in a building contract. The contract document had an arbitration clause respecting all disputes arising out of the contract.

The defendant appeared and filed a written statement of defence denying liability. In the application, they raised the issue of jurisdiction to entertain both the suit and the application relying on the arbitration clause.

Held:

1. Once a party sued delivers a pleading or takes a step in the proceedings, he denies himself the right to rely on the arbitration clause.

2. The defendant had not only filed a written statement of defence, but also filed a replying affidavit in opposition of the application for summary judgment. He was precluded from relying on arbitration clause, thus the court had jurisdiction to handle the case.

3. The plaintiff having chosen to base his fees on paragraph 9 (a) of 4th schedule, clause B of the Architects and Quantity Surveyors Act, he was not later to submit a claim based on final account worked under paragraph 9 (d), because he was precluded by dint of order 11 rule 1 of Civil Procedure Rules.

Judgment entered for the plaintiff.

Cases

Pitchers Ltd v Plaza (Queensbury) Ltd [1940] 1 All ER 151

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order II rule 1; order VI rule 9 (3); order XIV rule 1 (4); order XXXV rule 2

2. Arbitration Act (cap 49) section 6 (1)

3. Architects and Quantity Surveyors By-Laws (cap 525 Sub Leg) 4th schedule clause B 9(a), (d)

Advocates

Mr Kituku for the Defendant

Abdulatif Haji Esmail & 7 others v Ali Ashur & another

High Court, at Mombasa November 26, 1993

Mbaluto J

Miscellaneous Civil Case No 176 of 1991

Landlord and Tenant – notice to quit – where one remains on the property that has been sold on the basis of family arrangement and without paying rent – whether such a person is a mere licensee and therefore should be evicted

The plaintiff was a registered proprietor of premises known as Mombasa /Block/XVIII/202 and 203 situate along Kenyatta Avenue Mombasa. The said premises were said to originally belong to one Kassam Ismail Khamisa Kumbar, who was the 1st defendants’ half brother. Prior to acquisition of the premises the defendants were in occupation of premises on a family arrangement. The defendants contended that the arrangement between them and Kassam made them tenants.

The plaintiff contended that the defendants were mere licencees who had no right to remain on the premises against the will of the owner. He contended that although he bought the premises on vacant possession, he was assured by Kassam that the occupiers of property would move because they were relatives of Kassam. The plaintiff further contended that defendants had not been paying rent, therefore they were licencees and should move out of the premises.

Held:

1. The evidence in this case clearly showed that the defendants were not tenants at all but were licencees.

2. A tenant means a person to whom a lease is granted, while a licence is an authority to do something which would otherwise be inoperative, wrongful or illegal eg to enter land which would otherwise be a trespass.

Judgment for the plaintiff.

Cases

No cases referred to

Statutes

Rent Restriction Act (cap 296)

Texts

1. Sellings, V G (Ed) (1960) Woodfall’s Law of Landlord & Tenant London: Sweet & Maxwell 26th Edn pp 2, 9

2. Osborn, P (1964) Osborn’s Concise Law Dictionary London: Sweet & Maxwell 5th Edn p 193

Advocates

Mrs Ali for the Plantiff