Ayuaya v Republic

Court of Appeal, at Kisumu November 26, 1993

Gicheru, Akiwumi & Tunoi JJ A

Criminal Appeal No 60 of 1993

(Appeal from the Judgement of the High Court at Kisumu

(Mango J) in HCCC No.162 of 1992 delivered on June 28,1993)

Criminal practice and procedure – appeals – summary rejection of appeal – whether High Court has jurisdiction to summarily dismiss an appeal which goes beyond the claim that conviction is against the weight of evidence – section 352 (2) Criminal Procedure Code.

The appellant was convicted on his own plea of guilty on a charge of being in possession of cannabis sativa contrary to sections 10(e) and 18(2) of the Dangerous Drugs Act. He appealed to the High Court against his conviction and sentence claiming that the plea was unequivocal and defective in that the prosecution had neither narrated the facts of the charge to the court nor put the facts to him.

The High Court summarily rejected the appeal exercising its jurisdiction under section 353(2) of the Criminal Procedure Code. The appellant then brought this second appeal.

Held:

1. The High Court’s jurisdiction to dismiss an appeal summarily under section 352(2) of the Criminal Procedure Code arises only when, in the opinion of the first appellate judge, the evidence before the trial court leaves no reasonable doubt as to the appellant’s guilt, and that the appeal is manifestly frivolous, or without substance.

2. Once a petition of appeal goes beyond the conviction being against the weight of the evidence or the sentence being excessive the High Court in its appellate jurisdiction ceases to have jurisdiction under section 352 (2) of the Criminal Procedure Code.

3. In the petition of appeal to the High Court, the appellant put forward three grounds of appeal which were not confined to the appellant’s conviction being against the weight of the evidence or the sentence being excessive.

4. The plea before the trial court was defective in that the facts were neither narrated to that court nor put to the appellant. In those circumstances the plea should not have been construed as being an unequivocal admission of guilt.

Appeal allowed.

Cases

Nguraiya George & another v Republic Criminal Appeal No 28 of 1992

Statutes

1. Dangerous Drugs Act (cap 245) sections 10,18(2)

2. Criminal Procedure Code (cap 75) section 352(2)

3. Appellate Jurisdiction Act (cap 9) section 3(2)

Naftali Onchweri Nyangwachi v Meshack Osiemeo Nyagwachi & 3 others

Court of Appeal, at Kisumu October 26, 1993

Gachuhi, Gicheru & Tunoi JJ A

Civil Appeal No 170 of 1991

Civil Practice and Procedure - execution - attachment and sale of movable property - court broker - geographical jurisdiction of a court broker - procedure to follow where a court broker wishes to proceed with attachment of property situated outside his geographical jurisdiction - duty to ensure that the property attached is that of the judgment debtor and to provide a valuation of the attached property - Court Brokers Act section 12(1) - Court Brokers Rules rules 21(1), 22(1).

The appellant, who was resident in the United States of America, had his motor vehicle attached in execution of a decree for Kshs 19,492 issued in a dispute between two brothers. The court broker proceeded to attach the appellant’s vehicle which was in the possession of one of the brothers, the judgment debtor.

The judgment debtor had offered his properties consisting of a motor vehicle and electronic equipment but the Court Broker insisted on attaching the appellant’s vehicle which he repossessed and sold without assigning any value to it.

Whereas the decree had been issued in Kisii, the court broker had proceeded to the judgment debtor’s place of work in Njoro where he effected the attachment.

Held:

1. A court broker is licensed to operate within a certain area to avoid overlapping with the area of operation of another court broker in another district.

2. If a court broker wishes to attach property outside his own area of operation, he must obtain a specific order from the Court issuing the warrant.

3. It does not appear that such an order was obtained to authorize the court broker to go to Nakuru district, and there was no indication that the district was included in the relevant licence.

4. The court broker admitted complying with rule 21(1) of the Court Brokers Rules with regard to obtaining a signature from the judgment debtor but he did not state that he had complied with rule 22(1) which required him to provide an inventory of the nature and value of the property attached. He could not therefore dispute the value of the car he attached.

5. A vehicle is a chattel with its title – the log book and whoever attaches a vehicle must ensure before seizing it that in all respects it belonged to the judgment debtor.

6. It is wrong to attach a motor vehicle whose ownership was in the name of a person who is not the judgment debtor and it is an actionable trespass wrongfully to set the law in motion so that the wrong goods are seized or the wrong person is arrested.

Appeal allowed.

Cases

1. Atogo v Agricultural Finance Corporation & another [1991] KLR 521

2. Mwayi, Ernest Orwa v Victoria Enterprises Ltd Civil Appeal No 14 of 1991

Statutes

1. Court Brokers Act (cap 20) section 12(1)

2. Court Brokers Rules (cap 20 Sub Leg) rules 21 (1); 22 (1)

3. Civil Procedure Rules (cap 21 Sub Leg) order XXI rules 53 (1); 56; 57 (3)

4. Traffic Act (cap 403) section 8

Advocates

Mr Maraga for the Appellant

Mr Masese for the Decree - Holder

Mr Siganga for the Interested Party (Purchaser)

Simon Juma Wambunya v Republic

Court of Appeal, at Kisumu June 17, 1993

Gicheru, Omolo & Tunoi JJ A

Criminal Appeal No 49 of 1993

(Appeal from a conviction and sentence of the High Court of Kenya

at Kakamega (Mr Justice Mbogholi) dated 31st October, 1989

in CR A No 16 of 1989)

Evidence - confession - retracted confession - where the conviction of an accused person hinges on the evidence of his retracted confession which is found by the trial court to be admissible - burden of proof in establishing that the confession was voluntary - how a court should test such evidence in order for it to form the basis for a conviction.

The appellant was convicted of the murder of a 7-year-old boy who was his relative. He was alleged to have been the last person seen with the boy before he disappeared and was found dead some two weeks later. A post-mortem examination of the body could not reveal the cause of death due to its advanced state of decomposition and the fact that most of the body organs were missing. The case against the appellant hinged entirely on a confession he was alleged to have made but which he later retracted on the ground that he had been tortured into making it. A doctor who examined him on the day of the confession observed that both his feet were swollen and that the left big toe had a broken nail. The trial judge however rejected his allegation of torture.

Held:

1. The trial judge lost sight of the fact that the burden of proof that the statement was given voluntarily rested on the prosecution and the evidence that the appellant had been subjected to some form of torture and violence while in custody made the discharge of that burden more difficult.

2. A trial court should accept any confession which has been retracted or repudiated or both retracted and repudiated with caution and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true.

3. There was no convincing evidence that the appellant was the last person to be seen with the deceased before entering the forest, nor did anyone for certain know their activities therein.

Appeal allowed.

Cases

Tuwamoi v Uganda [1967] EA 84

Statutes

No statutes referred.

Alexander Angila Ongasia & 8 others v Republic

Court of Appeal, at Kisumu June 11, 1993

Gicheru, Omolo & Tunoi JJ A

Criminal Appeal No 88 of 1992

(Appeal from the judgment of the High Court of Kenya at Kakamega

(Osiemo J) dated 21st January, 1992 in

HC CRA Nos 208 - 216 of 1992)

Evidence – re-evaluation of evidence – duty of a first appellate court to re-evaluate the evidence adduced in the trial court – where the High Court on first appeal stated in its judgment that it had re-evaluated the evidence but failed to give an account of such re-evaluation – High Court nevertheless agreeing with the findings of the trial court and finding that the evidence against the appellants was overwhelming – whether it could be said that the High Court had failed to re-evaluate the evidence adduced in the lower court – whether a failure of justice had been occasioned to the appellants.

The nine appellants were convicted in the Bungoma Resident Magistrate’s Court on a charge of assault causing grievous bodily harm contrary to section 234 of the Penal Code (Cap 63). Eight of them were sentenced to imprisonment for two years with two strokes of the cane and one of them to a fine of Kshs 800 or imprisonment for six months. Their first appeals to the High Court were dismissed and they brought this second appeal.

Counsel for the appellants argued that both the trial court and the High Court on first appeal had failed to deal with the issues of self defence and common intention and to resolve those issues in the appellants’ favour. Counsel added that even though the High Court judge had stated that he had re-evaluated the evidence before the trial court, he had not in fact done so and he had not given reasons for his decision.

Held:

1. The trial magistrate had dealt with the issue of self defence, albeit in an indirect manner and on the evidence, the appellants had a common intention to assault the complainant.

2. It is the duty of a first appellate court to reconsider the evidence, evaluate it and draw its own conclusions in deciding whether the judgment of the trial court should be upheld. Such re-evaluation must be apparent on the face of the record. While the High Court in this case had stated in its judgment that it had re-evaluated the evidence on the lower court record, such re-evaluation was not apparent on the judgment.

3. The High Court did not in fact re-evaluate the evidence before the trial court but it was clear that it broadly agreed with the conclusions reached by the trial magistrate and it had found as a fact that the evidence against the accused was overwhelming. The High Court was right in its general conclusions and in the circumstances of this case, its failure to analyze in detail the evidence before the trial court did not occasion any failure of justice to any of the appellants.

Appeal dismissed.

Cases

Okeno v Republic [1972] EA 32

Statutes

Penal Code (cap 63) section 234

Advocates

Mr Bogonko for the Appellants

James Sabatia v Alubisi Amukayia & another

Court of Appeal, at Kisumu June 9, 1993

Gicheru & Gachuhi JJ A

Civil Appeal No 28 of 1991

(Appeal from the judgment of the High Court of Kenya at Kisumu

(Omolo J) dated 8th August, 1990

in High Court Civil Case No 202 of 1979)

Land law – registration - rectification of register – appellant seeking rectification of register by cancelling a registration without pleading fraud or mistake – whether Court can order rectification in such circumstances – Registered Land Act (cap 300) section 143 (1), (2).

The appellant agreed to buy the first respondent’s land at a consideration of Kshs 4000/- of which he paid Kshs 3,050 by various instalments leaving a balance of Kshs 950.

The respondent consequently filed a suit for the repossession of the land or payment of the balance of the purchase price.

A consent order was reached in which the respondent was to transfer to the appellant the suit land upon payment of Kshs 950/- plus a further sum of Kshs 300 as costs. The first respondent later sold and transferred the land to the second respondent ostensibly because the appellant had failed to comply with the consent order.

The appellant thus sued the respondents jointly and severally for specific performance of the sale agreement. He however did not plead nor was any evidence led that the registration of the second respondent as the proprietor of the suit plot was not a first registration and that it was obtained or made by fraud or mistake. The High Court dismissed the appellant’s suit stating that in seeking rectification of the relevant register the appellant was required to plead and prove that the registration was obtained or made by fraud or mistake.

Held:

1. The appellant was seeking rectification of the relevant register by cancelling the registration of the second respondent and directing that he be registered in place of the latter. To do this he was required to plead and prove that that registration was obtained or made by fraud or mistake.

2. Without pleading and establishing the vital ingredients of section 143 (1) of Registered Land Act that were relevant to his claim, the appellant could not succeed.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Registered Land Act (cap 300) sections 143 (1), (2)

2. Court of Appeal Rules (cap 9 Sub Leg) rule 32(3)

Advocates

Balango & Company Advocates for the Appellant

Mukele & Company Advocates for the 1st Respondent

Criminal practice and procedure-appeal-abatement of appeal-where the appellant had served the sentence imposed and released from prison- Court of Appeal Rules, Rule 70 (7)

Samson Odoyo v Ojwang’ K’Ombudo

Court of Appeal, at Kisumu January 14, 1993

Gachuhi, Masime & Gicheru JJ A

Civil Appeal No 118 of 1990

(Appeal from the judgment of the High Court of Kenya at Kisumu

(Mr Justice R S C Omolo) dated 10^th May, 1989, in

Civil Case No 59 of 1988)

Defamation – slander – whether a statement may be defamatory even though its recipient may know that it is unfounded – relevance of the recipient’s knowledge in the assessment of damages -words implying that the appellant was planning to commit the offence of murder – words uttered in the presence of the appellant’s family - whether the imputation was a slander actionable per se without proof of actual damage – discretion of a trial court in determining the award of damages – exemplary damages – circumstances in which exemplary damages may be awarded - Defamation Act (Cap. 36) section 3

This appeal arose from the decision of the High Court (Omolo J) in a suit filed by the appellant claiming damages in defamation against the respondent. The appellant complained that he had been defamed in the presence of his wife and daughters when the respondent had accused him of planning to commit murder.

The High Court noted that the words complained of were defamatory and acknowledged that the appellant had held numerous public offices. The Court observed, however, that the words complained of had been published to a very limited group of people who, in any event, had not believed them. The Court also considered that the fact that the group had not believed the slander was relevant in the assessment of damages.

The appellant challenged the superior court’s application of principles of law to the evidence adduced before it and the award of Kshs. 10,000 in damages. For his part, the respondent cross-appealed only on the quantum of damages.

Held:

1. The award of damages is a matter within the discretion of the trial court. However, as this was a first appeal, it was incumbent upon the Court ofAppeal to scrutinize and re-evaluate the whole evidence adduced at the trial and to make its own independent findings thereon.

2. The respondent had, in the presence of the appellant’s family, accused him of planning to commit the offence of murder. The words were defamatory of the appellant in their ordinary meaning and amounted to a slander which was actionable per se without the need to prove actual damage.

3. The High Court had committed misdirection. A statement may be defamatory even though its recipient may know that it is unfounded. Contrary to the respondent’s argument, the appellant’s relations with his family as husband and father had been brought into question by the imputation to him of a plot to murder the respondent. This fact was relevant to the assessment of damages not for the purpose of minimizing the damages but for enhancing them.

4. The High Court had misapprehended the evidence when it appeared to express doubts about the appellant’s social standing.

5. It has been held that exemplary damages are appropriate in two classes of cases: oppressive, arbitrary and unconstitutional action by the servants of government and conduct by a defendant calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff, and that these classes should not be extended.

6. As the High Court had found that the parties were arch political rivals and that there was no justification whatsoever for the respondent’s visit to the appellant’s house late at night to utter the slander complained of, an award of exemplary damages was justified.

Award of damages enhanced to Kshs. 40,000.

Cases

1. J M Bendzel v Kartar Singh (1953) 20 EACA 53

2. Hough v London Express Newspaper Ltd [1940] 2 KB 507

3. Rookes v Bernard [1964] AC 129; [1964] 1 All ER 367; [1964] 2 WLR 269

Statutes

1. Defamation Act (cap 36) section 3