Pius Kabunga v Republic

High Court, at Eldoret        

August 9, 1995

Nambuye, J

Criminal Appeal No 75 of 1993

Criminal Practice and Procedure - charge - form of - where facts disclosed are different from the ones charged - where one is charged with wrong offence - effect of.

SUMMARY OF FACTS

The appellant was charged in the lower court with the offence of causing and accident by obstruction c/s 53 (3) of the Traffic Act Cap 403 laws of Kenya. He was tried and found guilty convicted and sentenced to a fine of 1, 000/- I/D 30 days imprisonment on default.

The thrust of the prosecution’s case is to the effect that the complainant wanted to overtake the appellant when another vehicle in front flashed the appellant. That the distance between complainants vehicle and appellants was less than 50 metres.

The appellant is said to have slowed down without warning, that he stopped suddenly, obstructing other road users but did not drive carelessly.

The thrust of the appellants appeal is to the effect that the offence which appellant was charged with was not maintainable as the appellant was in the process of driving the said vehicle.

HELD

1.  Any person who leaves a vehicle on a road in such a position or manner or in such a condition as to cause or be likely to cause any danger to any persons shall be guilty of an offence.
2. The appellant’s conduct did not amount to obstruction but careless driving.
3. The appellant was charged with a wrong offence.

Appeal Allowed

K P Nagaria & another v Republic

High Court, at Eldoret

May 29, 1995

Nambuye, J

MISC. CR. APPL. NO. 2 OF 1995

Criminal Practice and Procedure - revision - whether high court has power to call for file for review.

Criminal Practice and Procedure - plea - plea of guilty - where one is found guilty - whether civil remedy can be granted on criminal offence.

Civil Practice and Procedure - notice of motion - whether notice of motion can be employed under criminal proceedings.

SUMMARY OF FACTS

The current appellants were charged with offence of failing to comply with a notice of an Authorised Officer, plea of guilty and Court issued order for demolition of premises on plot No. 2116/10/IV Kitale Municipality.

The tenants being aggrieved applied for review of the orders by High Court, and the same were set aside.                   

The current applicants then filed notice of motion seeking review of order of revision. But the current respondents raised preliminary objections contending that revision was done by High Court under Section 361 of criminal procedure code. That under that section the only remedy open to an aggrieved party is appeal to court of appeal and therefore the application that was before the court be struck.

HELD

1. Initial proceedings were of a criminal nature and the learned trial magistrate was supposed to impose a penalty and nothing more.
2. Affected parties were not party to the criminal proceedings and they were entitled to seek a remedy such as review
3. High Court has power to exercise its revisionary powers where it has called for the file on its own, where the file or decisions has been reported to it or which otherwise comes to its knowledge.
4. Notice of motion is civil procedure and to never be employed under criminal proceedings.

Appeal Allowed