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)

Republic v Mwendwa & 2 others

High Court, at Eldoret August 12, 1994

Nambuye J

Criminal Case No 13 of 1993

Evidence – identification – single witness evidence – how the Court should handle this evidence in absence of corroboration.

Evidence – retracted statement – how the Court should handle a retracted statement – whether corroboration has to be there for it to be acted upon.

The three accused were jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, in that on 12th day of April, 1992 at Nandi Hills Farm Company Ltd Songhor in Nandi district, they jointly murdered Lokircham Kula.

On the material day, the deceased is said to have gone to the house of 1st accused and inquired about maize seeds which were therein. He was told they belonged to a herdsman. He was not satisfied with the answer. Accused 3 is said to have pushed him, a fight ensued, and accused one is said to have cut the deceased in stomach and back with a panga. Accused is said to have come later, picked a stone and threw at deceased head.

PW2, a sister to accused two testified that accused 1 cut deceased using blunt side of panga and further that the stone used by accused 2 was of mud.

The defence case was to the effect that the 1st accused ran away after deceased came with her on enquiring about the origin of seeds. That while on hiding he heard screams and learnt people were fighting. Accused 2 defence was to the effect that he heard people were fighting, went home, and found deceased already dead.

Held:

1. The general rule regarding a retracted statement is that before it’s acted upon, there has to be corroboration.

2. The accused had set up an alibi and the general rule regarding an alibi is that it must be considered against the totality of the prosecution evidence.

3. The evidence in support of the prosecution displaced the 1st accused alibi.

4. PW2 turned hostile and she was declared hostile by the State and as such her evidence cannot be considered to be of any substance and the same is unreliable.

5. The general rule regarding single witness evidence is that the Court has to warn itself acting on such evidence in the absence of corroboration and before acting on the same, Court must be satisfied that the same is watertight. The Court warns itself and state that since identification was positive as it was daytime, and there was no grudge between accused 2 and PW1, thus no reason as to why he should tell lie about him.

6. The Court is satisfied beyond doubt that both accused 1 and 2 separately inflicted the injuries which later resulted into the death of the deceased. The evidence on intentional killing is lacking and therefore the two unintentionally killed the deceased.

Both accused found guilty of substituted charge of manslaughter.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 202, 203, 204, 205

Ngisirei v Republic

High Court, at Eldoret July 19, 1994

Nambuye J

Criminal Case No 1276 of 1994

Land Law - land – certificate of title – ownership of land – certificate of title – whether certificate of title conclusive proof of ownership of land.

Land Law – trespass to land – principles upon which Courts follow in trespass actions.

The appellant was charged with trespass upon private land with intent to annoy contrary to section 5(1) of the Trespass Act cap 294 Laws of Kenya. He was tried, found guilty convicted and sentenced to serve 6 months imprisonment; hence this appeal.

The prosecution’s case was to the effect that land belonged to the complainant, that the matter had gone up to the High Court on two occasions which ruled in favour of complainant, that the appellant had previously been convicted for same offence and that he had intimated he will not leave suit land.

The appellant’s case is that there was land dispute between him and complainant, that first elders decision gave land to complainant and he stated this was wrong. He further stated that he later went to District Commissioner who ordered fresh panel of elders to hear dispute, who then ruled in his favour. That since money was refunded, then the land belonged to him.

Held:

1. The principles in which the Court will follow in trespass actions, is that the appeal court is to evaluate the evidence adduced before the lower court and decide whether the conclusions reached by the lower court are to stand or not.

2. The possession of a certificate is conclusive proof of ownership.

3. Subsequent adjudication over the issue by the elders were null and void as the matter had been finalized by the Courts.

Appeal dismissed.

Cases

Peters v Sunday Post Limited [1958] EA 424

Statutes

Trespass Act (cap 294) section 5(1)

Kemboi v Republic

High Court, at Eldoret June 30, 1994

Nambuye J

Criminal Appeal No 60 of 1994

Criminal Practice and Procedure – sentencing – where accused presents mitigating factors on a charge of stealing by servant – that she was the sole bread winner of the family – whether non-custodial sentence should be imposed by the Court.

The appellant was charged in Kapsabet Senior Resident Magistrate’s Court with 2 counts of stealing by agent, and stealing, contrary to sections 283(b) and 275 of the Penal Code respectively. She was convicted and sentenced to serve 15 months imprisonment in count 1 and 12 months imprisonment in count 2.

The appellant’s case was that the learned Senior Resident Magistrate erred in law and in fact in convicting the appellant on insufficient evidence, in not considering mitigation circumstances and finally that this was a case which merited non custodial sentence.

Held:

1. There were mitigating factors to the effect that the appellant did not benefit from the money she was now willing to refund.

2. This was a case fit for a non custodial sentence.

Appeal allowed on sentence.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 275, 283

2. Chang’aa Prohibition Act (cap 70) sections 3(1); 4(1)

Kenes v Republic

High Court, at Eldoret June 6, 1994

Nambuye J

Criminal Appeal No 87 of 1994

Criminal Practice and Procedure – pleas – plea taking and recording – where an accused said “it was true” then gave an explanation and qualified the facts – whether he was accepting the facts – how the court should record such a plea.

The appellant was charged with offence of contempt of court contrary to section 121 (1) (b) of the Penal Code, and he allegedly pleaded guilty. Facts were outlined, he allegedly accepted the same and was convicted on own plea and sentenced to serve 6 months imprisonment. He subsequently lodged an appeal for being aggrieved by the said decision.

The appellant on his appeal stated that the learned Resident Magistrate erred in law in convicting him when the plea was not unequivocal, the learned magistrate erred in law in convicting him when there was no evidence or record that there was an order of prohibition from the High Court in HC P&A 55/91 which was said to have prohibited the appellant from being in possession of the suit land Irong/Sergoit /777.

The State supported conviction on grounds that plea was properly taken, facts given accepted and as such conviction was proper and the sentence was very lenient.

Held:

1. The words ‘it is true’ may not amount to a plea of guilty.

2. When an accused person gives an explanation and qualifies the facts, it meant that he was not accepting the facts and a plea of not guilty should have been entered.

3. The appellant was not party to proceedings in P&A 55/91 and as such section 121 (1) (b) could not have been invoked.

Appeal allowed.

Cases

1. Wanjiru v Republic [1975] EA 5

2. Adan v Republic [1973] EA 445

3. Wang’ondu, Mwangi v Nairobi City Commission Civil Appeal No 95 of 1988

Statutes

Penal Code (cap 63) sections 121(1); 121(1)(b)