CRIMINAL APPEALN NO.21 OF 1998

CRIMINAL LAW-Possession-definition of.

EVIDENCE- possession of Narcotic drugs- where accused are found in a room in possession of narcotic drugs- where all evidence point out that they were in possession of the drugs- where its not established that the appellant is the owner of the house where drugs are found- whether this is necessary to establish the issue of possession.

SUMMARY OF THE FACTS

Ahmed Mohammed Ali (the appellant), Ahmed Salim and Abdulrahman Mohammed, were tried and convicted by the Senior Resident Magistrate, Mombasa, on an indictment containing two counts of being in possession of narcotic drugs contrary to section 3(1) of the Narcotic and Psychotropic Substances (Control) Act (the Act), as read with sub-sections 2(a) and (b) of the Act. The first count alleged that on the 12^th day of November, 1995, at Kisauni village in Mombasa District, within Coast Province, the accused were found in possession of 26 sachets of Diacentromophine narcotic drug, commonly known as heroine, which was not in its medicinal preparation form. In count two, it was alleged that on the same date at the same place, they were found in possession of one roll of cannabis sativa (bhang). The appellant and his co-accused were each sentenced to ten years imprisonment on count one, and three months imprisonment on count two which sentences were ordered to run concurrently.

The appellant and the other two accused persons appealed to the superior court against both conviction and sentence but their appeals were dismissed. Ahmed Salim and Abdulrahman Mohammed filed a joint appeal to the Court of appeal (Criminal Appeal No. 38 of 1997) but the appellant filed his own appeal. Criminal Appeal No. 38/97 came up earlier for hearing and was determined on 14^th July, 1997. The appeal was allowed and the conviction of Salim and Mohammed quashed.

According to the evidence, police raided a house at Mlaleo in Kisauni area and found five persons in a small room smoking what appeared to be bhang and they appeared to be drunk. The officers searched the men and the room. Under the table between the feet of the appellant, who was seated at the table, they saw rolls of paper resembling cigarettes. They picked up these and they were 26 in number. They contained white powder. The same were later examined and certified by the government chemist to be heroine, and bhang .Two of the suspects including one who was alleged by the appellant to have been the owner of the house in which the drugs were found, were released in suspicious circumstances by one Inspector Wanyonyi and were never charged.

Mr. Gacuhi, counsel for the appellant, submitted that the prosecution’s failure to prove that the appellant was the owner of the house in which the drugs were found and the decision not to call the two suspects who were released, as witnesses was fatal to the appellant’s conviction.

HELD

1. The Court takes the definition of possession to mean, not that any legal title has to be proved, nor that access to the complete exclusion of all other persons has to be shown, but that a possessor, must have such access to and physical control over the thing that he is in a position to deal with it as an owner could to the exclusion of strangers.

2. . The court is satisfied that on the evidence on record the appellant and the other four persons in the room with him were in possession of the drugs within the meaning of section 3(1) of the Narcotic and Psychotropic Substances (Control) Act and the fact that two of them were set free by inspector Wanyonyi and not called by the prosecution to give evidence at the trial does not make any difference to the appellant’s criminal responsibility.

Appeal dismissed

CIVIL APPLICATION NO NAI 106 OF 1998

APPEAL-Discretion-unfettered discretion-where one applies to the court of appeal to extend time to file record of appeal- whether the court of appeal has unfettered discretion-how the court of appeal should exercise such discretion.

APPEAL-extension of time-to file notice of appeal-where it has been established that there has been no inordinate delay on the part of the applicant- whether therefore the discretion should be exercised in favour of the applicant.

SUMMARY OF THE FACTS

This was an application by the applicant seeking the court of appeal to extent time so as to file the record of appeal out of time. This was due to dissatisfaction with the judgment delivered on 1^st November 1995, by Wambilyangah, J, in H.C.C.C. No 424 of 1992.The Notice of Appeal was filed by his counsel, Mrs. Khaminwa, on 7^th November, 1995.

The supporting affidavit sworn by Mrs. Khaminwa stated that although she applied for certified copies of the proceedings and judgment on 13^th November, 1995, the same were not made available to her till 17^th December, 1997. She further stated that she also had to obtain another document called “Certificate of Delay” to be included in the record of appeal. The Deputy Registrar who was supposed to sign that Certificate is said to have taken his time. He signed it and delivered it to Mrs. Khaminwa on 3^rd March, 1998. That was after she had made a number of visits to the Deputy Registrar’s office and followed up the matter with reminding letters but to no avail.

The application was resisted by one Mr. Ngibuini, counsel for the respondents. He objected to it because according to him the delay in fling the appeal was inordinate. He contended that the sixty days from the date of filing the Notice of Appeal and within which the appellant was supposed to file the appeal expired on 7^th January, 1996. He further submitted that even allowing the time for the delay in supplying certified copies of the proceedings and judgment the appellant’s counsel has not acted with expedition arguing that she was supplied with the said copies by 17^th December, 1997, and could have lodged the record of appeal in February, 1998.

To this contention Mrs. Khaminwa replied that the appeal could not be lodged without the Certificate of Delay, which was an essential document. She added that the respondents were not going to be prejudiced by filing of the appeal.

HELD:

1. The Court agrees with both counsels that it has unfettered discretion in this matter and that all the same that discretion should be sparingly exercised where there has not been inordinate delay in taking action to file the record of appeal.
2. There must be sufficient reason for extending the time limited by the rules of the Court. Whether there would be prejudice to the respondent or whether the appeal has prospects of success are issues to be considered only after it has been established that there has been no inordinate delay and therefore there is sufficient reason for exercising the discretion in favour of the applicant.

Application allowed

CRIMINAL APPEAL NO 23 OF 1998

CRIMINAL PRACTICE & PROCEDURE- Presumption- possession of recently stolen property- where one is found with a recently stolen property from the complainant- where he cannot offer an explanation as to how he came into possession of the property- whether it can be presumed that he is the thief or he knows who the thief is.

EVIDENCE -Identification- where one is positively identified as the accused- where the accused is subsequently convicted and the court is satisfied of his conviction- whether the court should overturn this conviction.

EVIDENCE- Robbery with violence- where one is accused of the offence of robbery with violence contrary to section 296(2) of the penal code, found guilty and convicted- where on appeal the court does not find any evidence lining him to the offence- whether he should be acquitted of the conviction.

SUMMARY OF THE FACTS.

The appellants here were convicted of robbery with violence contrary to section 296 (2) of the Penal Code. It was alleged that on 11^th September, 1994 at or about 3 a.m. at Nyali Estate in Mombasa the appellants and four others persons robbed one Cyril Ondatto of one televisions set, an amplifier, a stereo receiver, a radio cassette, a Sanyo speaker, a brief case, one carpet, one golden ring, one lantern lamp stand and Shs. 66,000/- in cash, and in the course of such robbery wounded the said Cyril Ondatto. They also faced the alternative charge of handling stolen goods.

The Magistrate convicted these appellants and a third accused, one December Mwawasi Ochieng’ on the robbery charge and sentenced them to death. All three appealed to the superior court against both conviction and sentence. The court allowed Mwawasi’s appeal. The appellants filed the second appeal.

On this second appeal, the first appellant complained that he was not positively identified as one of the persons who were involved in the robbery. However he is said to have been attempting to sell a radio belonging to the complainant without a permit. He could not explain how the said stolen radio came into his possession. In addition to being found in possession of the radio, the first appellant was said to have been positively identified by the complainant’s son, Mark Ondatto (P.W.3), at a Police Station.

However as regards the second appellant, it was submitted that there was no evidence to connect him with the crime. Apart from the evidence of the two co-accused incriminating the second appellant in the crime there is no other evidence against him and the court failed to understand why his appeal to the superior court was dismissed.

HELD

1. The radio which the first appellant was trying to sell was actually the property of the complainant. And being in recent possession of an item recently stolen from the complainant the presumption arose that he was either the thief or a handler of stolen property unless he could offer an explanation as to how the item came into his possession.
2. The first appellant was positively identified by the complainant’s son, Mark Ondatto (P.W.3), at a Police Station on 22^nd September, 1994 and the court is satisfied that the first appellant was properly convicted.
3. As regards the second appellant it was submitted that there was no evidence to connect him with the crime. Apart from the evidence of the two co-accused incriminating the second appellant in the crime there is no other evidence against him and the court fails to understand why his appeal to the superior court was dismissed.

Appeal by 1^st appellant dismissed.

Appeal by 2^nd appeallant allowed.

CRIMNAL APPEAL NO 85 OF 1997

CRIMINAL PRACTICE AND PROCEDURE- acquittal of an accused person- where a complainant doesn’t appear on court- where the said complainant appears through his witnesses- whether under these circumstances the charges can be dismissed under section 202 of the criminal procedure code.

EVIDENCE- evidence of complainant - where the complainant fails to give evidence in a case- where if the complainant was present he would not be in a position to give useful evidence- where his witnesses give evidence- whether under such circumstances where a complainant doesn’t give evidence because he is projected not to give useful evidence but his witnesses give evidence the court can acquit an accused person.

CRIMINAL PRACTICE AND PROCEDURE- charges- where a person is charged with an offence- where facts of the offence are proved and reduces it to a minor offence- whether he may be convicted of a minor offence although he wasn’t charged with it.

SUMMARY OF THE FACTS

The appellant herein was charged in the magistrate court for an offence of stealing contrary to section 279(c) of the Penal Code. He is alleged to have stolen a bag of sugar valued at Kshs 1300 the property of Kenya Airfreight Handling Limited (KAHL).

During trial the complainant never testified but did so through its witnesses.

Upon the said conviction the appellant lodged an appeal at the High Court, where after hearing an appeal, the superior court (Ang’awa J,) reduced the charge to that of conveying suspected stolen property contrary to section 323 of the Penal Code.

The appellant thereafter field an appeal to the court of appeal on the grounds that

(a)Having found that the complainant did not testify in the subordinate court, the Honourable Judge erred in law in not acquitting the appellant.

(b)The Honourable Judge erred in convicting the appellant of the offence of conveying suspected stolen property contrary to section 323 of the Penal Code.

HELD

1. Section 202 of the criminal procedure code is clearly meant to cater for the eventuality when no witnesses including the complainant appear. Then the court may either acquit the accused person or adjourn the hearing. But this section does not cater for dismissal of a charge when the complainant appears through his/her/its witnesses.
2. The presence of a complainant may well be necessary if he or she is a witness of substance. But when the complainant himself or herself cannot assist the court by giving any evidence his or her presence would be superfluous. There are instances where a complainant may have to identify his/her goods etc. but his or her absence when he or she cannot usefully give any evidence does not and cannot mandate a court to acquit the accused person.
3. (i) When a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it. (ii) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.

Appeal dismissed

CIVIL APPLICATION NO NAI 258 OF 1997

REVIEW-remedy of review- when is the remedy of review available to an applicant.

CIVIL PRACTICE & PROCEDURE-Notice of appeal- whether filing of the notice of appeal can deprive a party from applying for the review- whether notice of appeal is tantamount to preferring an appeal-Civil procedure rules O.44. r. 1

APPEAL-extension of time to file an appeal- application for- where one applies for an extension of time to file an appeal-where an applicant demonstrates that he has an arguable appeal-where initial appeal filed was struck out by the court in limine without hearing it on merits- where it has been demonstrated that there has been no inordinate delay in filing – whether the court should grant such an application to extend time to file an appeal.

SUMMARY OF THE FACTS

This was an application by the applicant, Noradhco Kenya Limited, seeking an order of the court to extend the time for filing the notice of appeal and the record of appeal. The brief facts giving rise to this are that the respondent sued the applicant for goods sold and delivered amounting to Shs. 1,500,000/=.whereby, the respondent was granted summary judgment against the applicant as prayed in the plaint. The applicant lodged notice of appeal and while that notice of appeal was still pending and effective, the applicant filed an application for review of the said summary judgment entered against it. On 31^st July, 1996 the High Court dismissed that application for review with costs holding, that: “Order 44 states a review can only be made where there is a mistake and that in this situation no error or mistake has been made.” The aforesaid notice of appeal in respect of the summary judgment was subsequently struck out by this court, upon an application by the respondent.

The applicant then filed an appeal from the said ruling and order of court. The appeal was subsequently struck out. According to a certified copy of the Order of the Court, produced by the applicant, the appeal was struck out as it did not include a certified copy of the order appealed from. But Mr. Ndubi who appeared for the respondent produced a certified copy of the same order according to which the appeal was struck out and contended that an appeal to the court having been commenced by filing of the notice of appeal meant that the applicant divested himself of the right under the law to apply for the review, which to him is only available to parties who have not exercised their right of appeal

On his part, Mr. Pandya, counsel for the applicant stated from the bar that this point was never raised or argued before the court. He further contended that the applicant had, at least, an arguable appeal, and that the appeal originally filed was struck out In Limine without it being on merits. He further stated that the applicant had not been guilty of inordinate delay in going to the court with its application. He stated that It would be unjust if the applicant was deprived of its right to prefer a valid appeal and have it determined on merits.

HELD

1. The court agrees that the remedy of review is open only when the applicant having a right of appeal has not already preferred an appeal or when no appeal is allowed by law from the order or decree pronounced by the court
2. The filing of a notice of appeal in the courts view cannot deprive a party of his right under O.44 r. 1 of the Civil Procedure Rules to apply for review and the notice of appeal cannot be tantamount to preferring an appeal.
3. The court agrees with the applicants counsel that the applicant has, at least, an arguable appeal, and that the appeal originally filed was struck out in Limine without it being on merits. The court also agrees that the applicant has not been guilty of inordinate delay in coming to the court with its present application.

Application allowed.