Wangai v Njeru

Court of Appeal, at Nyeri July 29, 1993

Gachuhi, Cockar & Muli JJ A

Civil Appeal No 117 of 1990

(Appeal from an order of the High Court of Kenya at Nyeri (Abdulla J)

dated 28th September, 1989 in HCCC No 120 of 1983)

Arbitration - award – amendment of arbitration award – circumstances in which an arbitral award may be amended – order 45 rule 13 Civil Procedure Rules.

The respondent sought eviction of the appellant, her stepmother, from the suit land which was registered in the respondent’s name as an absolute proprietor. The land had been given to her by her late father as a gift. The appellant contested the suit arguing that the respondent being a married woman was forbidden by custom from inheriting the land.

By consent of the parties the matter was referred to a single arbitrator who rejected the prayer for eviction but recommended that the land should be divided equally between the parties. The appellant did not apply for the setting aside of the award but instead sought an amendment so that she could be awarded 8 acres instead of 5. The High Court dismissed the application as incompetent hence the appeal.

Held:

1. Under section 85 (1) of the Registered Land Act a proprietor may transfer land, lease or charge to any person including himself with or without consideration by an instrument in the prescribed form. A transfer by way of gift would be under this section.

2. The transfer as a gift was never challenged before the action for eviction was instituted and customary inheritance could not be a ground for amending the award.

3. An award may be modified or corrected under Order XLIV rule 13 of the Civil Procedure Rules where an award is on a matter not referred to arbitration, is imperfect in form or contains a clerical mistake or an error from accidental slip or omission.

4. The amendment being sought being not on any of the above grounds but on matters of hardship and contrary to customary law, the application was incompetent.

Appeal dismissed.

Cases

No cases referred.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) or order XLII rule 1(b); order XLIV

2. Registered Land Act (cap 300) sections 27, 85(1)

Kimunyu v Republic

Court of Appeal, at Nyeri July 22, 1993

Apaloo CJ, Gachuhi & Cockar JJ A

Criminal Appeal No 113 of 1992

(Appeal from a judgment of the High Court of Kenya at Nyeri

(Mr Justice PK Tunoi) dated 20th September, 1992,

in HC CR Appeal No 109 of 1992)

Evidence – accomplice evidence – corroboration of accomplice evidence – charge of corruption – accused person said to have corruptly demanded and received money – complainant having acceded to the first demand but making a report to the police when a second demand was made – whether the complainant was an accomplice – distinction between a real accomplice and statutory accomplice – whether the complainant’s evidence needed corroboration – whether there was evidence affording corroboration.

The appellant was a clerical officer at the Kirinyaga District Land Office in Kerugoya. He was convicted of the offence of corruption contrary to section 3(1) of the Prevention of Corruption Act (Cap 65) and sentenced to imprisonment for four years. On appeal, the High Court affirmed the conviction but reduced his sentence of imprisonment to two years. The appellant then brought this second appeal.

The evidence accepted by both courts was that the complainant had presented documents for the registration of a piece of land at the appellant’s office with a view to paying the requisite fees. The appellant beckoned him to a place behind the office building where he demanded a payment of Kshs 500 ostensibly to speed up the registration process. One week later, when the complainant brought the money, he was met by the appellant and another person and they both made a fresh demand for Kshs 2000 allegedly for processing the title deeds. At that point, the complainant’s suspicion was raised and he made a report to the police who laid a trap and arrested the appellant.

The appellant’s advocate submitted that the trial court and the High Court had failed to consider that the complainant was an accomplice whose evidence needed corroboration. It was further argued that the act of receiving the money had not been completed as the appellant did not do any act such as putting the money in his pocket and walking away with it.

Held:

1. The complainant became an accomplice when he agreed to meet the demand of Kshs 500 and in fact brought the money while knowing that it was a corrupt demand.

2. However, thereafter, the complainant was a statutory accomplice in relation to the events which took place following the report he made to the police after the corrupt demand for a higher sum was made.

3. The complainant’s evidence needed corroboration. The trial court and the High Court had overlooked this issue and failed to make a finding on it from the evidence which the courts had accepted.

4. However, there was strong corroboration supplied to the complainant’s evidence by the receiving of the money by the appellant at a bar away from his counter, his counting it and his reaction on noticing the paper money used to entrap him.

5. The act of receiving the money had been completed by the appellant by the time the police arrested him. There was no evidence of unwillingness on his part to accept the money. His act of counting it reinforced the conclusion that he was doing so because he intended to keep it.

Appeal dismissed.

Cases

Obanda v Republic [1983] KLR 507; [1982-88] 1KAR 325

Statutes

Prevention of Corruption Act (cap 65) section 3(1)

Advocates

Mr Mahan for the Appellants