Meto & another v Kihanguru & 3 others

Court of Appeal, at Nakuru

November 29, 2002

Omolo, Tunoi & Owuor JJ A

Civil Appeal No 120 of 2000

(An appeal from the judgment and decree of the High Court at Nakuru (Rawal CA) dated August 25, 1999 in HCCC No 74 of 1995)

Negligence – master and servant - liability of master for servant’s acts – liability of a vehicle owner for the negligence of its driver - need to show that the driver was owners’ servant at the material time – agency relationship–– need to show car driver was using the car on the owner’s instructions.

Agency - principal and agent relationship - liability of principal for the wrong of the agent - establishing the liability of a vehicle owner for the wrong of the driver - whether driver was acting as owner’s agent - how agency relationship established.

The second appellant company was engaged in the transport business and owned an Isuzu lorry for which the first appellant was the driver. On 12th July 1993, the respondents hired the second appellant’s lorry to transport their goods from Suneka to Nakuru. After loading goods onto the lorry and boarding it the first and third respondents sat on top of the goods at the back of the lorry while the second and fourth respondents rode in the cabin. During the course of the journey the lorry hit a deep pothole, veered off the road, rolled three times and came to a halt in a ditch resting on its side. Having suffered various grave injuries the respondents filed suit against the appellant for damages in negligence.

Held:

1. In order to fix liability on the owner of a car for the negligence of the driver, it is necessary to show either that the driver was the owner’s servant or at the material time the driver was acting on the owner’s behalf as his agent.

2. To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions and was doing so in the performance of the task or duty thereby delegated to him by the owner.

Appeal dismissed.

Cases

1. Twine v Bean’s Express Ltd [1946] 1 All ER 202 2. Morgans v Launchbury [1972]
2. 2 All ER 606

Statutes

No statutes referred.

Advocates

Mr Musangi for the Appellants.

Muiruri v Kimemia

Court of Appeal, at Nakuru

November 8, 2002

Omolo, Lakha & O’Kubasu JJ A

Civil Appeal No 65 of 2002

(Appeal from the judgment of the High Court at Nakuru (Nambuye J) dated 27th May 1994 in HCCC No 240 of 1990)

Land Law– trust - Registration of Titles Act – party seeking declaration of trust of land registered under–– need to prove existence of trust by evidence.

Civil Practice and Procedure – preliminary objections – preliminary objection cannot be sustained where a fact remains to be ascertained.

Statutes – interpretation of statutes – factors court ought to take into account – court’s task to protect rights and privileges of people.

This was an appeal by the unsuccessful defendant/appellant from the judgment of the High Court at Nakuru. The respondent as plaintiff had filed suit seeking judgment against the appellant. He had sought a declaration that the defendant held a certain parcel of land as trustee for himself.

Held:

1. A party relying on the existence of a trust must prove through evidence the existence of such a trust.

2. In interpreting a statute, in the absence of an express provision to that effect, it is always wrong for the court to whittle down the rights and privileges of the subject. The Court’s task is to protect the rights and privileges of people, not to clip and shear them.

3. A preliminary objection is in the nature of a demurrer in that it raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

Cases

1. Limuli v Marko Sabayi [1979] KLR 251

2. Gichuki v Gichuki [1982] KLR 285

3. Peters v Sunday Post Ltd [1958] EA 424

4. Mukisa Biscuit Manifacturing Co Ltd v West End Distributors Ltd [1969] EA 696

5. Githuchi Farmers Co Ltd v Gichamba & another [1973] EA 8

6. Gatimu Kinguru v Muya Gathangi [1976] KLR 253

7. Hosea v Njiru & others [1974] EA 526

Statutes

1. Limitation of Actions Act (cap 22)

2. Registration of Titles Act (cap 281)

3. Law of Contract Act (cap 23) section 3

Advocates

Mr Kariuki for the Appellant.

Njuguna Ndatho v Maasai Itumo & 2 others

Court of Appeal, at Nakuru

October 18, 2002

Kwach, Tunoi & Shah JJ A

Civil Application No NAI 231 of 1999

 (Appeal from the Judgment and decree of the High Court at Nakuru (Rimita J) dated 5th May, 1998)

Land Law – adverse possession – claim of title by adverse possession – acts inconsistent with owner’s enjoyment of the land – time – section 38 of Limitation of Actions Act – when time stops running.

Civil Practice and Procedure – claim of title by adverse possession – to be sought by originating summons – claim of title by adverse possession by way of a cross-claim misconceived.

The appellant was the registered proprietor of two parcels of land situated in Subukia in Nakuru District. One of the parcels was granted to one Thomson on 28th May 1960 and upon his death, his estate transferred the title to three tenants on 22nd August 1973. By this time the three respondents were already in occupation of the land. By his plaint filed in November 1988, the appellant sought the eviction of the respondents from the suit land.

Held:

1. To defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.

2. The filing of a suit for recovery of land stops time from running for purposes of section 38 of the Limitation of Actions Act under which a person may claim to have become entitled to by adverse possession.

3. A claim to title by adverse possession is to be brought by way of an originating summons under order XXXVI rule 3(d) of the Civil Procedure Rules.

4. A claim to title by virtue of adverse possession by way of a cross-claim is misconceived.

Cases

1. Wambugu v Njuguna [1983] KLR 172

2. Wallis’s Cayton Bay Holiday Camp Ltd v Shel- Mex & BP Ltd [1975] QB 94; [1974] 3 WLR 387; 29 P & CR 214

3. Murathe, William Gatuhi v Gakuru Gathimbi Civil Appeal No 49 of 1996

4. Kiritu, Joseph Gahumi v Lawrence Munyambu Kabwa Civil Appeal No 20 of 1993

Statutes

1. Limitation of Actions Act (cap 22) section 38

2. Civil Procedure Rules (cap 21 Sub leg) order XXXVI rule 3B

Advocates

Mr Kahiga for the Appellant.

Kennedy Ndiwa Boit v Republic

Court of Appeal, at Nakuru

 October 18, 2002

Omolo, Lakha & O’Kubasu JJ A

Criminal Appeal No 96 of 2002

 (Appeal from a judgment of the High Court at Kitale, Etyang & Omondi-Tunya JJ, dated March 13, 2002 in H.C.Cr.C No 125 of 2000)

Criminal Practice and Procedure – plea – plea of guilty by accused to a charge involving an offence punishable by death – whether such a plea allowed by law - duty of trial court to caution the accused on the consequences of such a plea and to ensure that he understands the charge– – duty of court to record that it has complied with these safeguards – whether conviction can stand where a trial court has not fulfilled these duties.

The appellant was charged in a magistrate’s court with robbery with violence contrary to section 296(2) of the Penal Code (cap 63), an offence carrying a mandatory sentence of death. At the time of taking his plea, he was not represented and the record of the court showed that in answer to the charge, he stated that it was true that he and others had committed the alleged robbery.

The record showed that the magistrate then proceeded to record the facts in support of the charge after which she asked the appellant for his comments on them. The appellant stated he admitted all the facts and that they were true. The court then apparently recorded a plea of guilty. In what seemed to be his mitigation, the appellant stated that he was a student in Form 1, was 17 years old and he asked for pardon.

The trial magistrate convicted the appellant and ordered that he should be detained at the pleasure of the President. His first appeal was rejected by the High Court and he lodged this second appeal.

Held:

1. There is no law in Kenya which would prevent a person charged with an offence punishable by death from pleading guilty to such a charge.

2. That being so, the courts have always been concerned that before a plea of guilty to such a charge is accepted and acted upon, certain vital safeguards must be strictly complied with and it must appear on the record of the court taking the plea that those safe-guards have been strictly complied with. The safeguards are:

a) As with all other offences, the person pleading guilty must fully understand the offence with which he is charged as provided under section 77(2)(b) of the Constitution. The person should be told in detail and in a language familiar to him the substance of the offence, the elements or ingredients which constitute it, the date and the approximate time on which the offence was committed and the person against whom the offence was committed.

b) Where the offence is one punishable by death, the court recording the plea must show in its record that the person pleading guilty understands that as a consequence of his plea he will face a sentence of death.

3. If an accused person is fully informed on all these matters, and the record of the trial court shows that he has been so informed but has nevertheless chosen to plead guilty, then there cannot be any genuine complaint thereafter.

4. In this case, the trial magistrate erred in failing to warn the appellant of the consequences of his pleading guilty to the charge and the High Court on the first appeal had said nothing about this issue. The High Court’s failure in that regard was a question of law which entitled this Court to interfere with its finding and that of the trial magistrate.

5. The appellant’s trial was unsatisfactory. The offence was committed in the year 2000 and witnesses for the Republic may still be traced. In those circumstances, this Court would order that the appellant be tried afresh on the charge of robbery with violence.

Cases

1. Rex v Changuony Arap Kisang (1946) 13 EACA 153

2. Adan v Republic [1973] EA 445

Statutes

1. Penal Code (cap 63) section 296(2)

2. Constitution of Kenya section 77(2)(a), 77(2)(b)

Advocates

Mr Mbeche for the Appellant.

Wilson Wanjala Mkendeshwo v Republic

Court of Appeal, at Nakuru

October 18, 2002

Omolo, Shah & Bosire JJ A

Criminal Appeal No 97 of 2002

(Appeal from conviction and sentence of the High Court at Kitale, Nambuye J, dated 26th February, 2002 in High Court Criminal Case No 17 of 1998)

 Evidence – circumstantial evidence–– when a conviction can be based wholly on circumstantial evidence- accused the last person seen with the deceased, his wife – deceased’s dead body discovered a day later with cut wounds – evidence that accused had purchased a panga before asking deceased to accompany him–– accused not making immediate enquiries about the deceased’s disappearance – whether evidence sufficient to prove charge of murder against accused

. Evidence – burden of proof–– party on whom burden falls in criminal cases – circumstances in which burden may be placed on accused – when accused required to explain matters peculiarly within his personal knowledge – standard of proof which the accused has to meet–– presumptions that the court can raise if accused fails to discharge the burden – Evidence Act (cap 80) sections 111, 119.

The appellant was charged and tried with the murder of his wife. He was found guilty, convicted and sentenced to the mandatory penalty of death. The prosecution’s case was that on the day prior to the discovery of the deceased’s dead body at a farm, the appellant had purchased a panga at a shop before going to the deceased’s place of business and asking her to accompany him. That the two had gone to an unknown destination where the appellant cut the deceased several times and she died of haemorrhage from her injuries.

The appellant denied the offence and also denied having taken the deceased along with him on the material day. He stated that he had only passed by the deceased’s place of business and talked to her before the proceeding to another place. That he had gone home and the deceased had not returned. Curiously, however, he had not taken any steps to find out where the deceased was and about seven days after her disappearance, he had sent word to her parent’s home that she was missing.

He further stated that he later made a report to the police about her disappearance. The appellant was later arrested and charged. While in custody, he had made a charge and caution statement admitting to killing his wife. He however denied having made the statement but it was admitted in evidence after a trial within a trial. The trial judge found that the evidence against the appellant was wholly circumstantial but that it had been sufficient to prove the offence of murder. The appellant appealed.

Held:

1. In order to justify a conviction based wholly in circumstantial evidence, the inculpatory facts must not only be incompatible with the innocence of the accused, and be incapable of explanation upon any other reasonable hypothesis than that of his guilt, but also that the said facts must exclude co-existing circumstances which may tend to weaken or destroy the inference of guilt.

2. Although the appellant was not seen killing the deceased and he denied having done it, there was acceptable evidence that he had left with the deceased from her place of business and the deceased was not seen alive thereafter.

3. In criminal cases, the burden is always on the prosecution to establish the guilt of the accused beyond any reasonable doubt and generally, the accused assumes no legal burden of establishing his innocence. However, in certain limited cases the law places a burden on the accused to explain matters which are peculiarly within his own personal knowledge.

4. The Evidence Act (cap 80) section 111 provides that in criminal cases, an accused person is legally duty bound to explain, of course on a balance of probabilities, matters or facts which are peculiarly within his knowledge. The section is silent on what would happen if he fails to do so but section 119 entitles a court to raise a rebuttable presumption of fact from the circumstances of the case.

5. In the circumstances of this case, a rebuttable presumption of fact arose to the effect that the appellant knew how the deceased had died.

 6. The appellant’s conduct from the date the deceased disappeared until he was arrested provided reason why his denial of having left with the deceased from her place of business could not be believed. He never made any effort to look for the deceased for several days.

7. It was never suggested that the deceased sometimes in the past failed to return home for several days. That the appellant was not disturbed by her disappearance for such a long time raised a rebuttable presumption that he knew where she was.

8. The appellant bought a panga some time before his wife disappeared; she was found dead early the next day with several cut wounds; the interval between the time she was last seen alive and the time her dead body was discovered was quite short; the appellant having not explained where he parted company with her, a rebuttable presumption arose that he, or some other person he knew, was responsible for her death.

9. By dint of section 9 of the Penal Code (cap 63), motive is not one of the elements of a criminal offence and the prosecution’s failure to prove the appellant’s motive did not per se invalidate his conviction.

10. The appellant’s charge and caution statement had been improperly admitted into evidence. However, since the trial judge had observed that even without it the evidence was sufficient to support the conviction, no prejudice was caused against the appellant.

11. The appellant’s conviction was based on sound and sufficient evidence.

Appeal dismissed.

Cases

1. R v Kipkering arap Koske & another (1949) 16 EACA 135

2. Musoke v R [1958] EA 715

Statutes

1. Penal Code (cap 63) sections 203, 204

2. Evidence Act (cap 80) sections 111, 119

Advocates

Mr Matiri for the Appellant.