Civil Procedure-claim for damages for the injuries sustained when the petitioner fell off a motor omnibus

Evidence - statement of an accused person - statement made under inquiry - statement taken from accused person while he was in custody - accused person looking worried and not at ease at the time of making the statement - evidence of injuries sustained by the accused while he was in custody - accused  convicted for murder and sentenced to death - trial court finding no direct evidence implicating the accused with the killing but relying on the statement of the accused - appeal - whether the statement of the accused was a voluntary statement - whether the conviction was sound.

Kenduiywa v Republic

Court of Appeal, at Nakuru September 30, 1994

Gicheru, Muli & Tunoi JJ A

Criminal Appeal No 98 of 1991

(Appeal from a conviction and sentence of the High Court of Kenya at Kericho (Mr Justice B K Tanui ) dated 21/6/91 in HCCRC No 9 of 1990)

Criminal law - murder – appellant killing father over land dispute – whether killing in the circumstances constitutes murder.

Criminal law - murder – provocation – whether threat to sell family land constitutes legal provocation.

Judicial notice – whether sensitivity of land issue is of judicial knowledge.

The appellant was convicted of murder and sentenced to death. He was accused of killing his father over dispute over family land which his father wanted to lease out or sell altogether.

Although in his appeal the appellant pleaded provocation, the learned state counsel supported the conviction submitting that there was no legal provocation and that the degree of drunkenness which the appellant claimed to have led him to kill his father did not reach the level of temporary insanity as required by law.

Held:

1. The learned trial judge did not consider the surrounding facts which would have tilted the balance in favour of the appellant.

2. It can be taken as judicial knowledge that land is a very sensitive matter among most African communities including the appellant’s community.

3. The sale of the portion of the land or the lease of that land to deprive the appellant and his brothers the use of the land was sufficient provocation in law.

Appeal allowed conviction for murder substituted for Manslaughter.

Cases

No cases referred to.

Statutes

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

Advocates

Miss Otieno for the Appellant

Mr Etyang for the Respondent/Republic

Criminal Law-conviction on their own plea of guilty, of robbery

Criminal Law

Criminal law - rape - two accused persons convicted and sentenced to imprisonment for 4 years plus 2 strokes of corporal punishment ( the cane ) - first appeal summarily rejected by the High Court - second appeal - whether the evidence was sufficient to support the convictions - whether the sentence was harsh and excessive - whether the appellants' first appeal had been properly dismissed - Criminal Procedure Code section 352(2)

Letwamba v Republic

Court of Appeal, at Nakuru July 29, 1994

Cockar, Omolo & Tunoi JJ A

Criminal Appeal No 92 of 1992

(Appeal from a conviction and sentence of the High Court of  Kenya at Nakuru (Mr Justice B K Tanui) dated 31st July 1992)

Criminal law - murder - provocation – appellant killing the deceased over seven hours after a quarrel – whether defence of provocation available.

Criminal law – murder – to reduce offence to manslaughter Court to consider the instrument used in the homicide.

Criminal law – self defence – appellant killing the deceased while life not in danger – whether defence of self-defence is available.

The appellant was convicted of murder and sentenced to death.

At his trial he did not deny killing the deceased but he claimed that he had done so in the circumstances that amounted to extreme provocation, sufficient to reduce his offence to manslaughter. In the alternative he averred, the plea of self-defence was available to him as he was entitled in the circumstances to use reasonable force to defend himself.

Held:

1. The evidence showed that there was a time lapse of over seven hours between the quarrel involving the appellant and the deceased and the killing. That killing was not so proximate to the quarrel so as to justify a suggestion that there was sufficient sudden provocation within the meaning of section 207 and 208 as to have caused the appellant to get in such a heat of passion as would be sufficient to reduce his crime committed during such a state of mind from murder to manslaughter.

2. The appellant, though hailing from Samburu pastoral tribe, was an educated man by all standards and was a subject of a disciplined force. It is difficult to imagine lesser provocation than that of the appellant witnessing the sale of less palatable and juicy piece of meat to a young man. The defence of legal provocation was certainly not available to the appellant.

3. To reduce an offence of murder to manslaughter it is necessary to take into account the instrument with which the homicide was effected.

4. As the appellant’s life was not in danger nor in reasonable apprehension of it his statement that he shot the deceased in self-defence is not a valid defence.

Appeal dismissed.

Cases

Mancini v Director of Public Prosecutions [1942] AC 1; [1941] 3 All ER 272

Statutes

Penal Code (cap 63) section 207, 208

Rurii v Republic

Court of Appeal, at Nakuru July 29, 1994

Gachuhi, Cockar & Tunoi JJ A

Criminal Appeal No 12 of 1994

(Appeal from a judgment of the High Court of Kenya at Kericho  (Lady Justice R N Nambuye ) dated 3rd September, 1993, in  HCCRC No 87 of 1993)

Negligence – causing death by dangerous driving – fault does not necessarily involve deliberate misconduct.

Negligence – causing death by dangerous driving – deceased killed while on her way to hospital – while post mortem report states cause of death was as a result of the accident – whether it is open to the appellant on appeal to challenge evidence on cause of death.

The appellant was tried and convicted of the offence of causing death by dangerous driving and sentenced to two years’ imprisonment. His first appeal to the High Court was dismissed. On second appeal it was contended by the appellant that the learned judge erred in holding that the act of swerving to his right and overtaking without applying brakes timeously amounted to an act of recklessness and dangerous driving and further that it was wrong for the learned judge to hold that the accident was the substantial cause of the deceased death ignoring the fact that atthe time of the accident, the deceased was being taken to hospital.

Held:

1. Fault does not necessarily involve deliberate misconduct or recklessness or an intention to drive in a manner inconsistent with proper standards of driving nor does it necessarily involve moral blame.

2. Fault involves failure ie falling below the standard of care or skill of a competent and experienced driver.

3. The irresistible inference that can be drawn from all the evidence that was put before the Court is that the appellant had driven at a speed which was dangerous having regard to the state of traffic on the road, and swerved to his wrong side of the road in the face of oncoming traffic.

4. The finding of the doctor as recorded in the post mortem report was accepted that the cause of death was due to injuries sustained in a road accident. The appellant was responsible for that accident.

Appeal dismissed.

Cases

1. R v Gosney [1971] 3 All ER 220; [1971] 2 QB 675

2. Patel v R [1968] EA 97

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 32(5)

2. Traffic Act (cap 403) section 46