M M v D C J & V N K

High Court, at Mombasa

December 7, 1995

Ringera, J A

Civil Suit No 853 of 1995

Injunction - interlocutory injunction – application for – grounds for granting an injunction – where one has not made out grounds for grant of injunction – whether injunction should issue.

Summary of The Facts

M M, the plaintiff, sought interlocutory injunction to restrain Darious Chika Jumwa, from contracting a marriage under the Marriage Act, or the African Christian Marriage & Divorce Act with the 2^nd defendant.

Here case is that she was the lawful wife of the 1^st defendant  under Taita Customary Law and therefore that the intended marriage  between the defendants was unlawful, illegal and void as being contrary to the provisions of the Marriage Act.

The 1^st defendant however vigorously opposed the application, denying that there subsited a valid Taita Customary Law Marriage  between himself and the plaintiff. He contended that any marriage that may have subsisted between himself and the plaintiff stood dissolved.

HELD

1. An interlocutory injunction is granted in order that the risk of a serious prejudice to the Applicant’s legal rights between the time of the application and the time of trial may be forestalled.
2. An interlocutory injunction cannot issue in as the applicant has not made out a prima facie case with a probability of success.

3. Equity does not aid the indolent.

Application dismissed

Charles Kahindi Nzai v Republic

High Court, at Mombasa

November 30, 1995

 Oguk, J

Criminal Appeal No 36 of 1995

Evidence  - circumstantial evidence – where evidence points to guilt of accused – whether it can sustain conviction.

Summary of The Facts

The appellant was tried and convicted of the offence of shop-breaking and stealing contrary to section 306 (a) of the Penal Code. He was sentenced to serve 2 years imprisonment  and ordered to receive 8 strokes of Corporal punishment. The prosecution case was to the effect that the appellant was at work as a security guard on the night of 18.6.1994 when the supervisor, Nicolas Wambua found him on duty about midnight and that everything was in order. At about 4 am, police received report that the ship in which appellant was guarding had been broken into and he (the appellant ) was not at work.

The appellant stated that he reported to work and taken to another ground from CSS, who took after his duties and excused himself since he was sick. He stated the time to have been about 10 pm.

Held:

1. The conduct of the appellant and the circumstances in which the theft took place pointed to him to have been party to theft that took place.

Appeal denied.

Dionysius Omambia Onyinkwa v Kenya Ports Authority

High Court, at Mombasa October 11, 1995

Wambilyangah J

Civil Case No 706 of 1992

Evidence – admissibility – where one is dismissed from employment on basis of report by a committee which inquired into one’s conduct – where one appeared before that committee – whether one should object to production of such report during trial.

The plaintiff was an employee of the defendant. He was dismissed from employment on the basis that he solicited bribes from potential candidates who were seeking employment by defendant. This was after a committee had been formed to investigate his conduct, whereby he appeared to defend himself, and recommended that his services with defendant be terminated.

The defence wanted to table the committee’s report, while the plaintiff objected to its admissibility on the basis that the procedure adopted by the committee was manifestly unfair to him.

Held:

1. The defendant was seeking to produce the report in order to refute the plaintiff’s allegations.

2. The report is admissible in these proceedings.

Objection disallowed.

Cases

Edmonds v Edmonds [1947] 63 The Times LR 327

Statutes

No statutes referred to.

Advocates

Mr Waiyaki for the Plaintiff

Geoffrey Kamuti Munyao v Republic

High  Court, at Mombasa

September 4, 1995

Oguk, J

Criminal Appeal No 254 of 1993

Evidence – standard of proof – where one is convicted based on safe and reliable evidence – whether conviction is safe.

Sentencing – appeal against sentence – where one is sentenced to 5 years with 8 strokes for shop breaking – where large part of stolen good had been recovered – whether sentence harsh and excessive.

Summary of The Facts

The appellant was convicted after trial by 1^st class District Magistrate, Taveta of the offence of Shop-breaking and committing a felony contrary to section 306 (a) of Penal Code. He was sentenced  to 5 years imprisonment and to receive 8 strokes of cane. He then appeal against conviction and sentence.

The appellant is said to have approached one Francis Chalia that he keeps for them luggage which they had. PW3 came across the appellant carrying a carton box, but left the carton and ran, leaving  behind jacket with 6 weighing stones. His companions were arrested and led police to house of PW2 where they had kept stolen goods. The appellant was finally arrested and PW identified him as one of men who had left baggage containing stolen items.

In his defence, the appellant stated simply that he had nothing to do with the said theft.

Held:

1. Conviction of the appellant was based on sound and reliable evidence.
2. The sentence of 5 years with 8 strokes is manifestly excessive.

Appeal against conviction dismissed.

George Maurice Ogutu v Republic

High Court, at Mombasa

July 31^st 1995

Oguk J

Criminal Appeal No 273 of 1995

(From original conviction and sentence in Criminal Case No 744 of 1994 of the Principal Magistrate’s Court at Mombasa – G Aburili, Esq, PM)

Criminal Law – forgery – offence of – contrary to section 349 of the Penal Code – where one has photocopy of certificate without original – where another has original bearing serial No in photocopy – failure by accused to show original certificate – whether his actions amounts to forgery.

The appellant was convicted after trial by magistrate court, Mombasa of the offence of forgery contrary to section 349 of the Penal Code upon his conviction, he was sentenced to serve  2 years imprisonment.

The facts are that the appellant secured a job at Mombasa Polytechnic on a strength of photocopied certificate S/No 5202. He was told to get original. Kenya Accountants & Secretaries National Examination Board were contacted and they confirmed that certificate S/No NAC 5202 belonged to one Hudson Mutua Gisairo. In his defence the appellant contended that the certificate was not a forgery, that he sat for Certified Public Accountants Part II exams in April 1979 under S/No NAC 1502 which he passed and was issued with the certificate but the original got lost.

Held:

1. Nowhere does the name of the appellant appear with the examination board as the holder of certificate No S/No NAC/5202.
2. The evidence of the appellant was a white lie and was rightly disbelieved by learned trial magistrate.
3. The sentence of 2 years imprisonment was manifestly harsh and excessive.

L.U International Ltd v Kenya National Trading Corporation & Another

High Court, at Mombasa

July 4, 1995

Oguk, J

Civil Suit No 404 of 1995

Civil Practice and Procedure – stay of execution – application for – where one fails to provide security as provided by law – applies for stay of execution of Ruling – whether such application frivolous – whether application should be granted/denied.

SUMMARY OF FACTS

This is an application for stay of the execution of the Ruling of this court dated the 16^th of June, 1995 and the orders made therein pending the hearing and determination of an intended appeal by applicants.

This as regards an order made by Court restraining the applicant from releasing the remainder of a consignment of sugar sold to 3^rd parties.

It was contended on behalf of the applicant that the applicant had an arguable case with great probability of success on appeal.

Counsel for the Respondent however was of the contrary view and urged the court to dismiss the application more so as no security had been provided in terms of order 41 rule 4 (2) (b) of Civil Procedure Rules.

HELD

1. The applicant does not stand to suffer any substantial loss if the stay of execution is nor granted.

2. The Court doubts their capability to pay any substantial damages to the Respondent since they were not able to offer any security in the first place.
3. The applicants application is frivolous.

Application dismissed

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Violet Haya v Republic

High Court, at Mombasa

June 30, 1995

Oguk, J

Criminal Appeal No 292 of 1995

Evidence – standard of proof – in offence of being in possession of cannabis sativa (bhang) – where one is found in possession of a bag with the drug – whether this is sufficient proof in criminal cases.

SUMMARY OF FACT

The appellant was convicted after trial for the offence of being in possession of cannabis sativa (bhang) contrary to section 10 (e) as read with section 18 (2) (b) of the Dangerous Drugs Act (now repealed) and upon her conviction, she was sentenced to serve 2 years imprisonment.

The prosecution case is to the effect that the appellant was in company of a certain young man who ran away when he saw the police. They were both carrying a bag containing cannabis sativa. The appellant was arrested and when the bag was searched, it was found to contain cannabis sativa.

The defendant contended that the man who ran away was a stranger to her, and that she was merely showing her the way.

The defendant also pleaded in her mitigation for the court to be lenient in sentencing her since she was a mother with a small child.

HELD

1. The appellant was proved to have been in possession of cannabis sativa (bhang) and the same were not in medicinal preparation.

2. Having regard to peculiar circumstances of the appellant the court shall interfere with the sentence imposed.

Appeal against conviction dismissed

L U International Ltd v Kenya National Trading Corporation & another

High Court, at Mombasa

June 16, 1995

Oguk, J

Civil Suit No 404 of 1995

Sales of goods – transfer of property in goods – when the property in goods transferred while there is a contract for sale of specific or ascertained goods.

Injunction – mandatory injunction – application for – where one has shown he is entitled to mandatory injunction – whether he should be compelled to take damages in lieu.

Injunction – application for – factors to be fulfilled before grant of any injunction – where one has established a prima facie case with probability of success – where one ahs established he cannot be adequately compensated by damages – where balance of convenience is on his side – whether injunction should be granted.

SUMMARY OF FACTS

The applicant moved the court for orders restraining 1^st and 2^nd Respondents/Defendants by themselves and/or their servants from transferring, releasing and/or giving up some 5000 metric tones of Brazilian sugar held in Bonded Warehouse No. 8 belonging to 2^nd Respondent pending determination of the suit.

The plaintiffs had sometime towards the end of April in 1995 entered a contract with the Kenya National Trading Corporation for sale of some 5000 metric tones of Brazilian sugar valued at Kshs. 115,000,000/-. It was understood that the plaintiff would take delivery upon payment. The 1^st defendant also had other clients who bought sugar from it.

The plaintiff paid for and took delivery of some amount of sugar. The 1^st Defendant however decided to sell the remaining sugar to other clients of which had not been paid for.

The plaintiff however objected to this contending that the property i.e. 5000 metric tones of sugar, the subject of the contract, had passed to the Plaintiff Company upon signing of contract and all that remained was for the Plaintiff to collect the same.

HELD

1. Where there is a contract for the sale of specific or ascertained goods, the property in there is transferred to the buyer at such a time as the parties to the contact intend it to be transferred.
2. The property in goods duly passed to the plaintiff upon signing of the contract of sale and transfer of such goods on 14^th March, 1995.
3. A person who shows that he is entitled to a mandatory injunction must not be compelled to take damages in lieu.
4. A wrongdoer must not be permitted to benefit however remotely from his wrongdoing, none so where the wrong is blatant or where the act of the wrong doer is contrary to the law.
5. The plaintiff showed a prima facie case with profitability of success, further that he cannot be adequately compensated for damages. The balance of convenience is on the side of the plaintiff.

Application Allowed