[Ruling] – BANKRUPTCY LAW – discharge – application for discharge – where the creditors claim that their debts have not been fully realized effect of – factors the court considers in such applications – validity of order

Municipal Council of Meru v Mariene

High Court, at Meru December 7, 1994

Ong’udi J

Civil Appeal No 96 of 1992

(From the original decision in Civil Suit No 264 of 1992 of the Resident Magistrate’s Court at Meru – JE Ashioya Esq RM)

Civil Practice and Procedure – setting aside summary judgment - application for–– where defence was not filed in time hence interlocutory judgment awarded – where no good reason is offered–– factors to be considered before setting aside interlocutory judgment – discretion – how the Court should exercise discretion.

The plaintiff sued the defendant claiming Shs 57,074/-. Service was effected to the appellant’s Town Clerk but no appearance or defence was filed, prompting interlocutory judgment to be entered for the respondent against the appellant.

When the matter came for formal proof, it was adjourned because the counsel for the appellants had filed an application seeking to set aside the ex parte judgment. The reasons he adduced was that the reason why defence was not filed in time was because of difficulties they encountered in trying to trace the file in time.

Held:

1. A Court on appeal will not interfere with the exercise of a discretion on an application for setting aside summary judgment unless the exercise was wrong in principle or the judge acted perversely on the facts, and that a mere denial is not sufficient defence.

2. The magistrate in the exercise of his discretion considered the issues before him meticulously. He enunciated correct principles and properly evaluated whatever material had been placed before him.

Appeal dismissed.

Cases

Mugunga General Stores v Pepco Distributors Ltd [1987] KLR 150; [1988 - 1992] 2 KAR 89

Statutes

No statutes referred.

..

Gichachi v Republic

High Court, at Nyeri December 7, 1994

Ang’awa J

Criminal Appeal No 387 of 1993

(From original conviction and sentence in Criminal  Case No 1332 of 1992 of SRM’s Court at Kerugoya)

Evidence – corroboration – sexual offences – uncorroborated evidence of complainant – how Court should treat such evidence – duty of trial court to warn itself before convicting on such evidence – failure of trial court to warn itself – effect of such failure.

Criminal Practice and Procedure – judgments – writing judgments – duty of Court to give reasons for decision reached in each count and its findings –failure of Court to do so – effect of such failure.

The 3 accused in this case were charged with offence of rape contrary to section 140 of the Penal Code and robbery contrary to section 290(1) of the Penal Code. They all pleaded not guilty. Trial was held and were all found guilty of rape and stealing (not robbery). Accused 1 was sentenced to 4 years imprisonment with 5 strokes of cane. Accused 2 committed to Youth Corrective Centre and accused 3 placed in probation for 3 years because they were minors. Accused 1 appealed.

The complainant alleged that the 3 raped her when they volunteered to take her home, and accused 1 and 3 searched her bag.

Counsel for accused raised points of technicalities, first, stating that the magistrate should have warned herself before convicting on evidence of a single witness, that identification was not sufficiently done and that medical evidence was not produced.

It appeared however that though accused 1 was convicted on both counts, he was not sentenced on count number 2.

Held:

1. Section 169 of the Criminal Procedure Code should be complied with in writing of judgments. There are two counts. A point to point decision should be reached in each count and its findings. Sentence should be for each count and the two may not be corroborated.

2. Warning by a trial magistrate must be given for relying on uncorroborated  evidence of a single witness.

3. The medical evidence is required to be adhered to strictly which was not done.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 140, 275, 296(1)

2. Criminal Procedure Code (cap 75) section 169

DM Amayamu & Co Advocates v Tanui

High Court, at Eldoret December 5, 1994

Nambuye J

Civil Suit No 23 of 1992

Civil Practice and Procedure – striking out of defence – application for – applicant arguing that defence was scandalous, frivolous and vexatious – where it’s likely to delay fair disposal of suit – where it’s hopeless and doesn’t raise any triable issues – whether defence can be struck out on this basis.

The plaintiff filed a suit against the defendant asking that an order do issue for the defendant to return title No Nandi/Kamoiywo/982 or in the alternative to pay the sum found due to M/s Standard Chartered Bank Kapsabet, costs and interests.

The defendant entered appearance and filed a defence which was out of time. The plaintiff thereafter filed chamber summons seeking to strike out the defence on the ground that it was frivolous, vexatious, and was likely to prejudice, embarrass or delay the fair disposal of the suit.

He also requested for interlocutory judgment to be entered in his favour, but it was delayed, and this is when the defence entered appearance and filed defence.

Held:

1. The cardinal principle in an application such as this is that before a party is deprived of his right to defend the suit, the defence must be totally hopeless and that it does not raise any triable issues at all.

2. When the defendant took out the loans he knew that the responsibility fell on him to make good those loans. He therefore could not be allowed to wriggle out of his responsibilities on points of technicalities.

3. The principle that one has to make good before he seeks indemnity had not been shown, and even if it were, the same was not a bar to the Court to look at the situation of both parties and see who had soiled his hands most.

Defence struck out.

Cases

No cases referred to.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 131(b), (c); order IXA rule 8

2. Advocates Act (cap 16)

Election petition – petition seeking nullification of election on grounds that the 1st respondent organised and administered traditional oaths on the 2nd respondent  -  whether the effect of the Kibukusu oath( “khulia silulu”) was to bind voters by bringing a curse on anyone who took it and did not vote for the 2nd respondent - whether the administration of traditional oath constitutes an election offence – whether the 2^nd Respondent was guilty of having committed the election offence of undue influence– whether the election results ought to be nullified - the Election Offences Act (cap 66 laws of Kenya) section 9.

Nzai & 3 others v Kilifi County Council & 2 others

High Court, at Mombasa November 10, 1994

Wambilyangah J

Miscellaneous Application No 146 of 1992

Civil Practice and Procedure – security for costs – application for – circumstances in which the Court has to consider – whether Court should exercise discretion – where a party to litigation is likely to abuse court process – whether Court should order grant of security for costs.

This was an application by one defendant for security for costs.

The tussle between the parties here was over a plot which was allocated to the 2nd defendant by the Commissioner of Lands and Kilifi County Council.

The plaintiffs contended that since they were squatters on the plot they were entitled to it on priority when the decision to allocate was made.

The plaintiffs had earlier made an interlocutory application for injunction. They lost it and their belated application for leave to appeal to the High Court was also refused. The second defendant’s costs for that application were assessed at Kshs 89,217/-. The plaintiffs could not however pay this amount. Their counsel contended that the plaintiffs were squatters, with no visible property to levy attachment for the decreed costs.

Held:

1. In exercising discretion the Court will have to consider all the circumstances of the case. A major matter for consideration is the likelihood of the plaintiffs succeeding. If there is a strong prima facie presumption that the defendant will fail in his defence to the action the Court may refuse him any security for costs.

Application allowed.

Cases

Giella v Cassman Brown & Co Ltd [1973] EA 358

Texts

Jacob, I H et al (Eds) (1990) The Annual Practice London: Sweet and Maxwell p 502

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XXV rule 6

Rules of the Supreme Court [UK] order 23 rule 1

Advocates

Mrs Khaminwa for the Applicants/Plaintiffs

Oyunge & another v Republic

High Court, at Kisii November 3, 1994

Mbaluto J

Criminal Appeal No 243 and 244 of 1994 (consolidated)

(From original convictions and sentences of the Resident Magistrate’s  Court at Rongo in Criminal Case No 352 of 1994 S O Omwega Esq, RM)

Evidence – identification – where appellant is identified in identification parade – where he claims that witnesses had seen him before at DO’s office – where a third witness correctly identifies – where independent witness who is not related to complainant correctly identified appellant – whether the identification evidence was reliable.

The two appellants were convicted in the court below of demanding property with menaces contrary to section 302 of the Penal Code and sentenced to 12 years imprisonment. Hence these appeals against sentence and conviction.

The prosecution’s contention was that on 30.4.1994, about 8 am, at his house in Rongo division, Silvanus Odhiambo was seated outside when 2 appellants who were administration police approached him, identified themselves and entered his house conducted search and found some medicine. They told him they would arrest him for being in possession of poison, but told him to give them something small for him to be released. The amount was Kshs 10,000. The complainant sent for his brother (PW2) to look for money, who later came with Shs 4000, and gave them and he was released. Before that the area chief had pleaded with them to release him, but refused. They were reported to police and were arrested.

The appellants’ case was that they never went to the complainants home, that the two witnesses had seen them at DO’s office and that the case before them was not proved to the required standard.

Held:

1. The claim by Mr Ochillo that all the material witnesses were relatives of the complainant was not factually correct.

2. The identification parade was properly conducted and further the appellants were correctly identified by the three witnesses ie PW1, PW2 and PW4.

3. The claim that the appellants’ defence was not considered by the learned trial magistrate lacks claim as the defences of the two appellants were given due consideration.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 302

Advocates

Mr Ochillo for the Appellants

Ntabo v Republic

High Court, at Kisii October 27, 1994

Mbaluto J

Criminal Appeal No 118 of 1994

(From original conviction and sentence of the Chief Magistrate’s Court at Kisii in Criminal Case No 1283 of 1994 - Kathoka Ngomo Esq SRM)

Criminal Practice and Procedure – pleas – plea taking and recording of pleas – where accused pleads guilty and subsequently admits the facts as correct – whether plea was unequivocal.

The appellant was convicted on his own plea of guilty of attempting to procure an abortion contrary to section 158 of the Penal Code and was sentenced to 4 years imprisonment.

The facts were read to him and he admitted to them. He was then convicted and hence this appeal.

The appellant’s case was to the effect that the plea of guilty was equivocal, that the charge was duplex and finally that the sentence was harsh and excessive.

Held:

1. The plea was clear and unequivocal, and the complain of about how it was taken lacks substance.

2. The appellant understood what charge he faced and as to claim of duplicity of the charge, the error was minor and was curable under section 382 of the Criminal Procedure Code.

3. The sentence meted out cannot be said to be harsh or excessive.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 158

2. Criminal Procedure Code (cap 75) sections 135, 382

Advocates

Mr Osoro for the Appellant.