Alison Kithure v Republic

High Court, at Meru

May 24, 1995

Ong’udi, J

Criminal Appeal No 24 of 1995

Evidence – corroboration – sexual offences – whether corroboration of the act of intercourse and identity of accused a major requirement.

Evidence – corroboration – assault causing actual bodily harm – where witnesses find accused committing an assault – whether this constitutes corroboration – whether this can discredit unsworn evidence of accused.

SUMMARY OF FACTS

The appellant was charged with three counts, namely attempted rape contrary to section 141 of the Penal Code, assault causing actual bodily harm contrary to section 251 of the Penal code and malicious damage to property contrary to section 339 (1) of the Penal Code. He was found guilty on all counts, convicted and sentenced to 3 years, 1 year and 1 year imprisonment respectively.

Prosecution case was to the effect that the accused punched the complainant sat on her, tore her petticoat and skirt, removed her knickers to have sexual intercourse when Mwantani and Mutuma arrived.

The appellants unsworn defence was to the effect that the complainant had accused him of being a thief, hit him with a piece of sugar cane while Mutuma held him.

HELD

1. In all sexual offences there must be corroboration of the act of intercourse and identity of the accused.

2. There were no overt acts that manifested the intent of the appellant to commit rape.

3. The evidence of the complainant as to assault was corroborated by her witnesses, whose evidence discredited and impeached the unsworn defence of the appellant.

Conviction on count 1 and count 3 quashed and sentence set aside. Appeal on count 2 dismissed.

John Mwobobia v Children Officer Meru

High Court, at Meru

April 28, 1995

Ong’udi J

Criminal Appeal No 250 of 1993

(From the original conviction and sentence in P&D No 7 of 1992 of DM II’s Court at Meru)

Criminal Law – contempt of court – where one is convicted for contempt of court for failing to comply with court order – where there was no court to comply with – whether conviction for contempt of court is procedural.

On 21^st October 1992 the court below ordered that the children do remain in custody of the mother and the appellant was to provide for all their basic needs and necessary requirements agreed between herself and District Children Officer. The matter was stood over on 4^th November 1992 to record agreement reached between parties. No such mention took place on 4^th November 1992 however. Instead on 12^th November 1992 the children officer appeared before trial magistrate and applied for an order to attach 30% of the appellant’s salary. When the appellant appeared on 24^th September 1993 the prosecutor made oral application that the appellant be convicted for contempt of court because he had failed to pay school fees for his children.

Held:

1. The ruling of the court below dated 21^st October 1992 was not definite and was also not conclusive.
2. When the mention did not materialise on 4^th November 1992 and no agreement was reached, there was no order binding on the appellant.
3. The oral application made by the children officer without any affidavit in support denied the appellant an opportunity of challenging the whole proceedings.

Appeal allowed.

Murathi Chambira v M'Iringo Kiria

High Court, at Meru January 20, 1995

Ong’udi J

Civil Case No 448 of 1993

Advocate – disqualification – application for – where an advocate shifts his alliance from one party and represents the other in litigation involving same subject matter – whether such an advocate should be ordered to disqualify himself.

The respondent in this case gave full instructions to an advocate, one Mr Mugo in July, 1993 who then lodged a caution on his behalf (respondents) in respect of land parcel No Magumoni/Rubate/463. However, two months later, he was briefed by the applicant and shifted his alliance to represent him.

Counsel for the respondent contended that his client felt compromised by the act of the said Mr Mugo, as the suit involved the same piece of land.

Held:

1. It is an implied rule of practice and ethics that an advocate should not act in a matter where his services have been retained by both parties to a litigation involving the same subject matter in dispute.

2. It cannot be dismissed that Mr Mugo may use instructions he received from one party for the benefit of the other; which case would be detrimental to the rules of national justice.

Application allowed

Cases

Muriithi, Malizella Karambu v Ephantus Chege Civil Case No 53 of 1990

Statutes

Advocates Act (cap 16)

Advocates

Mr Riungu for the Respondent

Francis M. Kirigia v Paul Murunga & another

High Court, at Meru January 10, 1995

Ong’udi J

Civil Appeal No 72 of 1994

(From the original decision in Principal Magistrate’s Court  Civil Suit No 135 of 1994 at Meru - Solomon Wamwayi Esq CM)

Sale of Goods – transfer of property in goods – where there is contract for sale of specific or ascertained goods – when does the property in them transfer to the buyer.

Jurisdiction – High Court – determining whether the Court has jurisdiction – who has duty to look at pleadings and determine whether Court has jurisdiction.

The plaintiff sued the defendant via a plaint filed on 28th February, 1994. He sued them for the return of motor vehicle Reg No KAA 901V Toyota Corolla DX which had allegedly been sold to him by the 1st respondent for Shs 170,000/= and which he paid 160,000/= and the balance was Shs 10,000/=. The vehicle was repossessed by respondents and therefore prayed for an order compelling 1st respondent to transfer the log book in his name. He also prayed for damages for loss of use of car from 23rd February, 1996, costs of suit plus interest.

The 1st respondent denied any agreement being entered between him and the plaintiff contending that Shs 150,000/= received was for the car to be imported.

The trial magistrate entered judgment for the plaintiff. The respondents appealed contending inter alia that the learned Chief Magistrate lacked jurisdiction to entertain the suit as his pecuniary limit was only Shs 125,000/= at the time he heard this matter and delivered judgment

Held:

1. The issue of jurisdiction may rightly be argued on an appeal as it goes to the root of the matter whether the trial court was competent to adjudicate on the matter before it.

2. On whether the Court has jurisdiction or not, it’s the duty of the counsel appearing to assist the Court by raising the matter.

3. Where there is contract of sale of specific or ascertained goods, the property is them transferred to the buyer at such a time as the parties to the contract intended it to be transferred.

4. Unless a different intention appears, the rule that applies for ascertaining that intention of the parties as to the time at which the property in goods is to pass to the buyer is that where there is unconditional contract for the sale of specific goods, in a deliverable state the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment or the time of delivery or both be postponed.

5. The property in the suit car passed to the appellant when he paid the first instalment and was given the car by the 1st respondent.

6. Motor-car registration book is not a document of title and delivery thereof does not give to the person to whom it is delivered the means of appearing to be the owner.

Appeal allowed.

Cases

1. Nyangau v Nyakwara [1986] KLR 712; [1982-88] 1 KAR 805

2. Musoke v Alibhai Garage Ltd [1960] EA 31

Statutes

1. Sale of Goods Act (cap 31) sections 19(1); 20

2. Traffic Act (cap 403) section 8

Advocates

Mr Mithega for the Appellant