Njau v Republic

High Court, at Meru November 24, 1993

Kuloba J

Criminal Appeal No 130 of 1992

(From the Original Conviction(s) and Sentences in Criminal Case No 880

of 1991 of the Resident Magistrate’s Court at Chuka -

Mr David J Nyaga - District Magistrate 1)

Criminal Law – rape - attempted rape – whether attempting to lift a woman’s dress and pull down her pants, gaggling her with mud to stiffle her screams and dimming her power of sight constitutes attempted rape.

The appellant was charged with the offence of attempted rape contrary to section 141 of the Penal Code and sentenced to five years imprisonment with five strokes of the cane. It was contented for the complainant that the appellant confronted her, got hold of her, pushed her into the water furrow, tried to pull her pants and stop her from screaming and when she tried to look at him to identify him, he put mud in her mouth and eyes, but was rescued by the passers by.

The appellant contested that he was attack by a man when he was trying to take his coins from water and that the man ran away.

On conviction the appellant appealed alleging that the evidence pointed only to assault hence stating that conviction was against the weight of the evidence. He therefore prayed the Court to quash the sentence, set aside conviction and acquit him.

Held:

1. A person attempts to commit a crime when his conduct reaches a point at which an ordinary person would have gone so far that it could reasonably be assumed that he would probably persist on his designs.

2. Attempted rape begins from a point where one starts molestingly searching for a womans body or under her skirt.

3. The act of the appellant struggling with a female, attempting to lift her dress and pull down her pants, gaggling her with mud to stiffle her screams and dimming her power of sight, but failing to undress her, courtesy of the rescuers, would be attempting to rape. He had the instrument of raping, the ability to use it, the intention and attempt to employ it for rape.

Appeal dismissed.

Cases

No cases referred to

Statutes

Penal Code (cap 63) section 141

Advocates

Mr A Mbaya for the Appellant

Mr Mutuku for the State

Gabriel Mbui v Mukindia Maranya

High Court, at Meru November 17, 1993

Kuloba J

Civil Case No 283 of 1990

Land - adverse possession – claim of - elements to be established for a claim of adverse possession to succeed – where one does not establish adverse possessory acts which are hostile to rights of ownership in land and are unequivocal – whether claim of adverse possession can succeed in the absence of such evidence.

The plaintiff in this case brought by way of originating summons under order 36 rule 3D of Civil Procedure Rules and section 38 of Limitation of Actions Act, a suit for orders that the defendant excises two acres of land out of his 8.28 hectares and have them registered in the name of the plaintiff as the absolute owner of the two acres, he having been in adverse possession of the two acres. The plaintiff contended that on October 24, 1974 he bought 2 acres out of defendant’s 8.28 hectares of land and paid for shs 3000 which he claimed he paid in total. The plaintiff further contended that he took possession of the two acres immediately as per the alleged sale agreement and he stated that he was given by the defendant without force, coercion, fraud or mistake. That since October 24, 1974 he has been in actual possession of 2 acres cultivating them exclusively. He said that he requested the defendant to transfer them to him and the defendant failed to do so. He therefore claimed that he had been in possession for more than 12 years and should be registered as the owner.

The defendant agreed to most of the facts plaintiff adduced in Court, but stated that the agreement remained subject to seeking and obtaining of the consent thereto of the relevant Land Control Board, which had not been obtained. The defendant averred that the plaintiff had never been in continuous possession of land and that at some stage, the defendant offered to refund the plaintiff through clan elders, but the plaintiff refused.

The defendant stated that the plaintiff had never been in adverse possession of the two acres of land, alleging that the action was founded on a void written agreement of sale. He stated that the plaintiff was not a “squatter” per se, but was in partial occupation illegally.

Held:

1. For a claim of adverse possession to succeed, the possession should not be clandestine, there must be notice of intimation to the owner of hostile acts, and there should be no concealment of the intention to impugn his title. Surreptitious possessory acts do not found a claim of adverse possession. Fraud will destroy that claim.

2. There was no dispute that the plaintiff was in possession of the suit land. But being in possession per se was not enough to make the possessory an adverse one. It had to be accompanied by adverse possessior acts which are hostile to the rights of owner in the land. Such hostile acts performed by or on behalf of the plaintiff have to be clearly unequivocal. The plaintiff did not place before the Court any such acts, evidence of which was required by Court.

3. The claim of right of the plaintiff was not revealed, nor was any good faith shown to have accompanied possession.

4. Adverse possession can arise out of sale agreement if nothing subsequent to the sale agreement is in contravention of any law or equity.

5. Time does not start to run against the owner unless and until the date of the payment of the last instalment of the stipulated purchasep price.

Suit dismissed with costs to the defendant.

Cases

1. Public Trustees v Wanduru [1984] KLR 314; [1982-88] 1 KAR 498

2. Gatimu Kinguru v Muya Gathangi [1976 - 80]1 KLR 317

3. Wambugu v Njuguna [1983] KLR 172; [1982-88] 1 KAR 217

4. Bejoy Chundra v Kally Prosonno [1878] 4 Cal 1327

5. Jandu v Kirpal & another [1975] EA 225

6. Hosea v Njiru & others [1974] EA 526

7. Bridges v Mees [1957] Ch 475

8. Fairweather v St Marylebone Property Co Ltd [1963] AC 510;[1962] 2 All ER 288

9. Athman Bwana and Alim Bwanahave v Haji Abdulla Ibrahim and Husein Haji Abdulrehman (1948) 15 EACA 7

10. Ahmed Abdulkarim v Member for Lands and Mines [1958] EA 436

11. Salim v Boyd & another [1971] EA 550

12. Ithongo v Thindiu [1981] KLR 197

13. Ordo, Boniface v Wabomba Mukile Civil Appeal No 170 of 1989

14. Cobb v Lane [1952] 1 All ER 1199; [1952] 1 TLR 1037

15. Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1974] 3 All ER 575; [1975] QB 94; [1974] 3 WLR 387

16. Littledale v Liverpool College [1900] 1 Ch 19

17. Hassanali Mamuji v Alibhai Ebrahimji Dar & Sons (1935) 12 EACA 11
18. Karanja Matheri v Kanji [1976-80] 1 KLR 172

19. Wainaina v Murai & others [1976-80] 1 KLR 283 [1976] KLR 227

20. Leigh v Jack [1879] 5 EX D 264

21. Williams Brothers Direct Supply Stores Ltd v Raftery [1957] 3 All ER 593; [1958] 1 QB 159; [1957] 3 WLR 931

22. Hayward and another v Chaloner [1967] 3 WLR 1068; [1967] 3 All ER 122;[1968] 1 QB 107

23. Lord Advocate v Lord Lovat (1880) 5 App Cas 273

24. Asher v Whitlock [1865] L R 1 QB 1

25. Willis v Earl Howe [1893] 2 Ch 545

26. Trustees, Executor and Agency Co Ltd v Short (1888) 13 App Cas 793

27. Samuel Johnson and Sons Ltd v Brock [1907] 2 Ch 533

28. Wandera & another v Attorney General [1976 - 80] 1 KLR 345

29. Githuchi Farmers Co Ltd v Gichamba & another [1973] EA 8

30. Alibhai v Alibhai [1938] 5 EACA 1

31. Gathure v Beverly [1965] EA 514

32. Sospeter Wanyoike v Waithaka Kahiri [1976-80] 1 KLR 1381

33. Kweyu v Omuto [1990] KLR 709

34. Yardley v Holland (1875) LR 20 Eq 428

35. Cox v Leigh 43 LJ QB 123

36. Hughes v Metropolitan Railway Co [1877] 2 AC 439

37. Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130; [1956] 1 All ER 256; [1947] LJR 77

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rule 3D

2. Limitations of Actions Act (cap 22) sections 3, 7, 17, 20, 37, 38, 38(1) ;39; 41

3. Government Lands Act (cap 280)

4. Registration of Titles Act (cap 281) sections 21, 23(1)

5. Land Titles Act (cap 282)

6. Registered Land Act (cap 300) sections 28, 30(f); 143, 163

7. Land Control Act (cap 302) sections 6, 6(1); 22

8. Land Adjudication Act (cap 284)

9. Land Consolication Act (cap 283)

Texts

1. Wylie, JCW (1965) Adverse Possession: An Ailing Concept 16 NILQ 467

2. Brooms, H; Kersley RH (Eds) (1939) A Selection of Legal Maxim’s London Macmillan 10th Edn

3.(a) Mills, JS (Ed) (1848) Principles of Political Economy New York: Colonial Press

(b) Hadley, AT (Ed) (1900) The Study of Political Economy New York: pp 214 - 215

4. Jowitt, E (Ed) (1959), Dictionary of English Law: London: Sweet & Maxwell Vol I

Advocates

Mr Mithega for the Plaintiff

Mr Mukira Mbaya for the Defendant

Kibundi v Mukobwa & another

High Court, at Meru November 17, 1993

Kuloba J

Civil Case No 390 of 1992(OS)

Civil Practice and Procedure - res judicata – essential elements of res judicata – where there is development of fresh circumstances as distinguished from discovery of fresh evidence – whether this may be raised to defeat a claim of resjudicata.

This was a preliminary question as to whether, by reason of determination of the originating summons by the High Court, in the High Court Civil Case No 2411 of 1979, at Nairobi, the instant originating summons, which was also started at Nairobi, and in due course, transferred to Meru, was barred by application of the doctrine of res judicata.

The respondents, who raised the question contented that the land in question was the same, and further that the applicant in question was the same as in the former suit. The respondents however never touched on other aspects from which one should be made to apply the doctrine of res judicata.

The applicant however contested that there were development of fresh circumstances, as opposed to mere discovery of fresh evidence, therefore he alleged that, that may found a new cause of action based on adverse possession.

Held:

1. Given the fact that sometimes different people may bear the same or similar names or names with very small or insignificant differences, one requires positive evidence to show that the respondents in the former suit are the same as respondents in the instant case. A positive identity must be shown on a claim that a suit is barred by doctrine of res judicata.

2. Whether a matter was directly and substantially in issue in a former suit is to be determined by a reference to the pleadings, the issues and judgment.

3. Development of fresh circumstances (as distinguished from a mere discovery of fresh evidence on matters which have been open for controversy in the earlier proceedings), may found a new cause of action based on adverse possession, and the applicant should be allowed to take advantage of any such new circumstances as he may be able to rely for his claim.

Preliminary objection rejected.

Cases

1. Njangu, Mwangi v Meshack Mbogo Wambugu & another

2. Heming v Wilton (1832) 5 C & P 54

3. Liverpool Corporation v Chorley Waterworks Co (1852) 2 De GM & G 852

4. Hall v Levy (1875) LR 10 CP 154

5. Re Inecto Ltd (1922) 38 TLR 797

6. R v Middlesex Justices Ex Parte Bond [1933] 1 KB

Advocates

Mrs Ndorongo for Mr Mwarania for the Plaintiff

Mr Riungu for the Defendant

Ali & 4 others v Republic

High Court, at Meru October 26, 1993

Kuloba J

Criminal Appeals Nos 40 “B”, 63 – 66 of 1993

Criminal Law – sentencing – where the accused is first offender and presents mitigating factors – whether the sentence should be reduced on this basis - failure by lower court to take into account mitigating factors - effect of.

The accused in this case were found in possession of firearms without relevant certificates. This was in Isiolo where banditry and gangsterism is a common phenomenon.

The accused pleaded guilty and were treated as first offenders. The prosecution expostulated that the Court should not turn its eye away from “the bandits which had affected Isiolo area”.

The accused on the other hand contented that their fathers, mothers and brothers had been killed and therefore they needed the firearms for self-protection and defence of property.

Appeals against convictions dissmissed, appeals against sentences allowed in part.

Held:

1. The sentences of imprisonment ranging from one year to five years, were, in the circumstances of the offences, excessive and punitive out of reasonable proportions.

2. While punishing offenders, it should not be forgotten that raving vengeance meted out in excess may destroy an otherwise good citizen, turn an accidental offender into a revengeful hardcore criminal expensive to the State.

Cases

No cases referred to.

Statute

No statutes referred.

Patrick Muturi v Kenindia Assurance Co Ltd

High Court, at Meru May 11, 1993

Kuloba J

Civil Suit No 114 of 1990

Insurance- motor vehicle insurance – comprehensive insurance – where the vehicle has an accident and the insurer fails to compensate the insured as per the policy – whether that insurer was in breach of its contractual obligation – whether insurer liable in general damages and for non – consequential non remote losses suffered by insured.

Damages – assessment of – general damages – where vehicle overtuns and insured pays 10% as provided in policy – where one has to incur expenses hiring other motor vehicle to supply goods – quantum of damages.

The plaintiff filed suit against defendant insurance company, claiming general damages compensation for loss of user of motor vehicle insured by the defendant. The insurance company moved to Court for orders that suit be dismissed or stayed to facilitate arbitration.

The plaintiff contended that he owned a motor vehicle Reg No KAA 913B, a Toyota Hilux Pick-up which was comprehensively insured by the defendant. It was extensively damaged in road accident, whereupon the defendant agreed to properly repair it. That plaintiff paid defendant excess of Kshs 35,000 plus 10% of total damage. The vehicle was not repaired whereupon the defendant had to hire another vehicle for use in his business, thereby incurring a lot of losses.

Held:

1. The liability of the insurer is to make good the loss under the policy by a payment in money. On other occasion however, instead of effecting payment by paying a sum of money in respect of loss, the insurer may choose to reinstate the assured in specie the property damaged or destroyed.

2. The Court was satisfied that defendant elected to reinstate the vehicle, by repairing it, without undue delay, to a state substantially the same as that in which the vehicle was before the damage to it, but did not do so, the plaintiff therefore failed on any duty on his part.

3. The defendant was liable in general damages and consequential non remote losses suffered by the plaintiff in hiring an alternative motor vehicle.

Judgment entered for the plaintiff.

Cases

1. Thorp v Holdsworth (1876) 3 Ch D 637

2. Byrd v Nunn [1877] 7 Ch D 284;

3. Green v Sevin (1879) 13 Ch D 589

4. Prison v Lloyds Bank Ltd [1941] 2 KB 72; [1941] 2 All ER 636

5. Chapple v Electrical Trades Union [1961] 3 All ER 612; [1961] 1 WLR 1290

6. Pioneer Plastic Containers Ltd v Commissioner of Customs and Excise [1967] 1 All ER 1053;

7. Rayner v Preston (1881) 18 Ch D 1

8. Societa Coloniale Italiana and Salim Bin Said v The South British Insurance Co Ltd [1932] 14 KLR 84

9. Times Fire Assurance Co v Hawke (1959) 28 LJ (NS) 317

10. Brown v The Royal Insurance Co [1859] 1 EL & EL 853

11. Robson v New Zealand Insurance Co Ltd [1931] NZLR 35

12. Maher v Lumbermen’s Mutual Casualty Co [1932] 2 DLR 539

13. Sutherland v Sun Fire Office (1852) 14 (Court of Sess) 775

14. Home District Mutual Insurance Co v Thomson [1847] 1 E & A 247

15. Davidson v Guardian Royal Exchange Assurance [1979] 1 Lloyd’s Rep 406

16. Swift v New Zealand Insurance Co Ltd [1927] VLR 249

17. Anderson v Commercial Union Assurance Co (1885) 55 LJ QB 146

18. Express Transport co Ltd v BAT Tanzania Ltd [1968] EA 443

19. Abdalla Jaffer Thawer v Archibold Clark [1929-30] 12 KLR 22

20. Hall (J & E) Ltd v Barclay [1937] 3 All ER 620

21. Armory v Delamirie [1721] 1 Stra 505

22. Ley v Lewis [1952] VLR 119

23. Aitken v Gardiner [1956] OR 589; 4 DLR (2d) 119

24. Solloway v McLaughlin [1938] AC 247

25. Sachs v Miklos [1948] 2 KB 23;[1948] 1 All ER 67

Statutes

1. Arbitration Act (cap 49) section 6

2. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 4(1), 6, 9, 9(4), 10, 10(3); order VIII rules 1 (1), (2); order IXA rules 3,4,5,6,7,8,9; order IX

Advocates

Messrs Mugambi Mithega & Co Advocates for the Plaintiff

Ghadialy & Co Adovcates for the Defendant

Messrs Mugambi Mithega & Co Advocates for the Plaintiff

Mr Ghadialy for the Defendant

Amina Adam & 6 others v Rosamma Alexander & 2 others

High Court, at Meru March 30, 1993

Kuloba J

Civil Case No 81 of 1993

Injunction -temporary injunction – application for – where there is no prima facie case established – where granting of injunction would be vain and impossible to enforce.

Affidavits – interlocutory proceedings – advocate swearing affidavit on behalf of the client – where an advocate swears an affidavit in contentious matters – where he is a witness on a question of fact – whether its proper for an advocate to appear in dual capacity of counsel and giving evidence as a witness viva voce or by affidavit.

Affidavits – interlocutory proceedings – where an affidavit is expressive of legal conclusions and opinions without supportive factual data – where affidavit contains deponent’s information or belief without grounds stated – whether such affidavit is irregular and therefore should be disregarded.

On March 5, 1993 seven school girls, all muslims through one Sheikh Khalid Salim Ahmed Balala as their next friend, filed a suit against the Headmistress and the Board of Governers of Consolata Diocese of Meru. The plaintiffs prayed for judgment against the defendants, making declaration that the seven girls were entitled to practice their religion in the school, particularly with regard to the observance of the fast of Ramadhan and offer prayers in accordance with the muslim faith, an order that the seven girls resume classes and continue with their education an injunction restraining the defendants from interfering with the plaintiff right to attend school.

It was contended on behalf of the applicants that the defendants tried to force the plaintiffs to break their fast before time of doing so, that the Headmistress detained them on February 25, 1993 and prevented them from breaking fast, insisting that no muslim had right to observe and fast during Ramadhan without her permission. It was also alleged that one Father Andrew Mbiko, a servant or agent of catholic diocese of Meru, abused, kicked, slapped the plaintiffs when they refused to obey orders of headmistress to stop fasting. The plaintiffs were then expelled from school and told to go back with their parents.

Mrs Rosamma Alexander, the Headmistress of the school contended that the allegations of the plaintiff were merely fabrications intended to spoil her name and those of other defendants. She alleged that there were other students who were fasting in school without being prevented from doing so by anybody.

Held:

1. Difficulties or impossibility of enforcing the injunction weighed heavily against it. It will be refused where compliance with it will require the supervision of the Court, or where it involves perpetual or indefinite checking, directions or superitendance.

2. If there were other students in similar situations and they observed the fast without being suspended from school, as the defendant said, then it was probably time that the applicants were suspended from school not for fasting but for going against the school rules. It was for the applicants to dispel the probable version of what happened.

3. No prima facie or even an arguable case was made out that the school authorities had defied any of the precepts and trifled with any aspect of the constitution.

4. By going to Court without accepting the Headmistress’s invitation of the children’s parents to school for settlement of the problem the applicants had over shot themselves, put the cart before the horse and acted in high handed manner.

5. There was no suitable undertaking made as to damages and therefore the Court withheld the exercise of its judicial discretion in favour of the applicants.

Application dismissed.

Cases

1. Giella v Cassaman Brown and Co Ltd [1973] EA 358

2. Juma, Shamta v Siri Guru Singh Sabha High Court Civil Case No 834 of 1990

3. Dharani, Shafiqua Ali & others v Wanjala and others High Court Civil Case No 759 of 1990

4. Madhwa v City Council of Nairobi [1968] EA 406

5. Chivatsi and another v Republic [1990] KLR 529

6. Patel v Dhanji [1975] EA 301

7. Re Palmes v R (1901) WN 146

8. Gandesha v Killingi Coffee Estate Ltd [1969] EA 299

9. Re Osman Hussein (1923 - 1960) 1 ALR (Ma1) 276

10. EA Industries Ltd v Trufoods Ltd [1972] EA 420

11. Abel Salim and others v Okongo’o & others [1976-80] 1 KLR 53

12. Dewani GM and others v G Datoo and others (1952) 25 KLR 55
13. Attorney General of Kenya v Block [1959] EA 180

14. Nti v Sunyanihence and others [1962] 2 GLR 118

15. Attorney General v Dorin (1912) 1 Ch 369

16. Republic v El Mann [1969] EA 357

17. Shah v Devji [1965] EA 91

18. Despiria Pontikos [1975] EA 38

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) orders XVIII rule 3(1)

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

3. Constitution of Kenya section 78

4. Education Act (cap 211)

Texts

Kuloba, R (1987) Principles of Injunctions, Nairobi: Oxford University Press p 32 - 70 para 5.1-5 11-9

Advocates

Mr Taib for the Applicants

Mr Rimita for the Respondents