Civil Procedure - application for an injunction or stay of execution pending appeal - Law Society challenging decision allocating land on which a court is built to a private company - whether the Law Society had an arguable appeal.

Civil Procedure - application for stay of execution pending appeal - party who has concealed material particulars to the court not entitled to the court's discretion.

Pothiwalla v Kidogo Basi Housing Co-operative

Society Ltd & 31 others

Court of Appeal, at Nairobi December 11, 2003

O’Kubasu JA

Civil Application No NAI 286 of 2003 (UR.142/2003)

Civil Practice and Procedure - extension of time – time to file Notice of Appeal and lodge Record of Appeal – court’s unfettered discretion – how such discretion should be exercised – what an applicant must do in order to succeed in an application for extension of time – rule 4 of the Court of Appeal Rules.

The applicant herein sought an extention of time to file a Notice of Appeal and to lodge a Record of Appeal. The applicant submitted that the suit land had been in dispute for about 7 years and it was valued at Kshs.30,000,000/=. The applicant was a trustee and an ealier appeal was struck out as the Record of Appeal did not contain a certified copy of the decree. The applicant explained that the reason why there was a delay in filing this application was because he had fallen sick.

The respondent contended that the court had to look at the totality of the matter when dealing with an application of that nature. It was pointed out that the Notice of Appeal was defective and so was the certificate of delay.

The respondent argued that there would be no point in granting leave yet the appeal was hopelessly out of time.

Held:

1. In an application under rule 4 of the Court of Appeal Rules to extend time to file a Notice of Appeal and lodge Record of Appeal, the court is being asked to exercise its unfettered discretion.

2. The discretion of the court under rule 4 of the Court of Appeal Rules must be exercised judicially.

3. For an applicant to succeed in an application under rule 4 of the court of Appeal rules (cap 9 sub leg) he must satisfy the court that:-

a) The delay was not inordinate;

b) the delay has been sufficiently explained;

c) the intended appeal is arguable; and

d) no prejudice would be caused to the respondent if the application to extend time is allowed.

4. The delay in bringing the application soon after the earlier was struck out had been satisfactorily explained and the applicant was entitled to the benefit of the court’s discretion.

Application allowed.

Cases

Kiragu, Muchugi v James Muchugi Kiragu & another Civil Application No NAI 356 of 1996

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 4

Advocates

Mr Maanzo for the Applicant.

Mr Jiwaji for the Respondent.

Civil Procedure - extension of time to file and serve notice of appeal - discretion of the court in such an application - matters the court will take into consideration.

Landlord and Tenant - action by tenant for illegal distress for rent.

Muthaiga Road Trust Company Ltd v Five

Continents Stationers Ltd & 2 others

Court of Appeal, at Nairobi December 5, 2003

Tunoi, O’Kubasu & Githinji JJ A

Civil Appeal No 298 of 2001

(Appeal from the ruling and order of the High Court at Nairobi (Visram J)

dated July 31, 2001 in HCCC No 1707 of 2000)

Civil Practice and Procedure - setting aside - ex parte judgment – factors that should be considered in applications to set aside – need for a defence on the merits – requirement of triable issue.

This was an appeal from the ruling of the superior court in which Visram J set aside an ex parte judgment which had been entered against the defendants on failing to enter appearance.

Held:

1. Where a plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons the court shall on request enter judgment against the defendant for any sum not exceeding the liquidated demand together with interest.

2. Sch judgment may however be set aside pursuant to Order IXA rule 10 of the Civil Procedure Rules.

3. The court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits.

4. A defence on the merits does not mean a defence that must succeed but rather a triable issue that is an issue which raises a prima facie defence and which should go to the trial for adjudication.

Appeal allowed.

Cases

Patel v EA Cargo Handling Services Ltd [1974] EA 75

Statutes

1. Civil Procedure Act (cap 21) section 3A

2. Civil Procedure Rules (cap 21 Sub Leg) order IXA rules 3(1) 5, 6, 10

Advocates

Mr Ohaga for the Appellant

Mr Musili for the Respondents/Defendants

Criminal Practice and Procedure – conduct of prosecution - prosecution by unqualified persons – prosecution conducted by police officer of the rank of Police Constable - prosecution later conducted by Police Inspector - whether proceedings proper. Criminal Practice and Procedure – retrial – circumstances in which a retrial can be ordered - prosecution nullified for being conducted by an unauthorised person - no evidence that it would be difficult to trace witnesses - whether proper to order retrial.

David Agwata Achira v Republic

Court of Appeal, at Kisumu November 28, 2003

Omolo, Githinji JJ A & Onyango-Otieno Ag JA

Criminal Appeal No 47 of 2003

(Appeal from a conviction and sentence of the High Court at Kisii (Wambilyanga J) dated 7th March 2003 in HCCRC No 1 of 2000)

Evidence – circumstantial evidence – test that circumstantial evidence must satisfy before a conviction can be founded on it – need for accomplice evidence to be corroborated – dying declarations – deceased’s dying declaration not corroborated.

Evidence - dying declaration - how a court should treat evidence of a dying declaration - whether safe to base a conviction on a dying declaration - need for corroboration - whether uncorroborated accomplice evidence proper corroboration for a dying declaration.

The appellant was charged and convicted by the High Court of murder.

At the trial, the judge considered the evidence before him as reliable circumstantial evidence against the appellant. The judge also relied on the evidence of a dying declaration and found corroboration for it in the evidence of three witnesses.

On appeal the appellant argued that the trial judge had failed to direct himself and the assessors that some of the evidence was accomplice evidence and required corroboration. It was also argued that the judge had erred in relying on the same accomplice evidence as corroboration of the deceased’s dying declaration.

Held:

1. There were inconsistencies in the circumstantial evidence of two witnesses.

2. The accomplice evidence of two witnesses was uncorroborated and could therefore not be relied on.

3. The Court should approach the evidence of a dying declaration with necessary circumspection.

4. It is generally speaking unsafe to base a conviction solely on the dying declaration of a deceased person made in the absence of an accused and not subject to cross examination unless there is satisfactory corroboration.

5. The trial judge erred in finding that the uncorroborated accomplice evidence could corroborate the deceased’s dying declaration.

Appeal allowed, conviction quashed.

Cases

1. Okeno v Republic [1972] EA 32

2. Ngui v Republic [1984] KLR 729

3. Musoke v Republic [1958] EA 715

4. James Mwangi v Republic [1983] KLR 327

5. Aluta v Republic [1985] KLR 543

6. Okale v Republic [1965] EA 555

7. Pius Jasunga s/o Akumu v Reginam (1954) 21 EACA 331

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr LG Menezes for the Appellant.

Mr Musau for the Respondent.

Peter Obino Nyaundi v Republic

Court of Appeal, at Kisumu November 28, 2003

Omolo, Githinji JJ A & Otieno-Onyango Ag JA

Criminal Appeal No 194 of 2002

(Appeal from a conviction and sentence of the High Court

at Kisii, Wambilyangah J dated 5th November 2002, in

High Court Criminal case No 38 of 2000)

Evidence – circumstantial evidence - standard that such evidence must meet - inculpatory facts to be incompatible with innocence of the accused – where evidence adduced does not directly connect accused to the offence.

Evidence – witness – where witness evidence forming basis of conviction is contradictory and insufficient to form basis of conviction.

The accused was convicted of murder on the strength of the evidence of one Mary, the main witness. The appeal judges re-examined her evidence and found significant contradictions in its substance. The court also found that the witness was inadequately cross-examined to establish the reasons for her perception of the “afraid” demeanour of the accused on the night of the murder.

Held:

1. This court was not satisfied that the evidence of the only witness which the judge relied on to convict the appellant left no doubt in the entire case as to lead to a conclusion that the inculpatory facts were incompatible with the innocence of the appellant and incapable of explanation upon any other hypothesis other than that of guilt.

2. There was no proper evidence to conclude that the accused was carrying a panga with which he had killed the deceased.

Appeal allowed, conviction quashed, sentence set aside.

Cases

Musoke v R [1958] EA 715

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr Kabua for the Appellant.