Republic v Limanyang

High Court, at Kitale June 18, 2003

Birech CA

Criminal Review No 2 of 2003

Criminal Practice and Procedure – committal proceedings – by subordinate courts – where grounds for committing accused to trial are insufficient – and subordinate court substitutes the charge – legality thereof.

This case arose from committal proceedings in the subordinate court in which the subordinate court reduced a murder charge to one of manslaughter. The Senior Principal Magistrate of the First Class called for the records of the proceedings pursuant to section 363 (1) of Criminal

Procedure Code for the purpose of having them revised. Having found the proceedings improper the magistrate forwarded the same as per section 362 (2) of the Criminal Procedure Code to High Court with his remarks.

The validity and propriety of the finding of the Senior Resident Magistrate was therefore the subject of examination by the High Court.

Held:

1. If having read the committal document the magistrate considers that there is insufficient evidence to warrant the accused being committed to the High Court he should then act in accordance with the provisions of section 233 (2) of the Criminal Procedure Code and discharge the accused.

2. The reduction of the charge from murder to manslaughter by the Senior Resident Magistrate was wrong in law as she did not have the powers to do so.

Magistrate’s order revised.

Cases

No cases referred to.

Statutes

Criminal Procedure Code (cap 75) sections 232, 232(2), 233, 233(2), 234,

235, 362, 363(1), 363(2)

David Kadima Wamukoya v Kipsaina Land Disputes

Tribunal & another

High Court, at Kitale January 30, 2003

Tunya J

Miscellaneous Civil Application No 91 of 1999

Land law – Land Disputes Tribunal – power of tribunal to determine whether or not a person is a trespasser – whether registration of the suit land is material – where a person is named but does not participate in the decision of the tribunal – whether presence of the name contravenes the composition of the tribunal – requirement that the tribunal gives reasons for its decision – contents of an award given by the tribunal – how the award should be dated – whether a rubber stamp satisfies the requirement that an award should be dated – section 3(8) of the Land Disputes Tribunals Act, 1990.

The applicant sought an order of certiorari to quash the decision of the Kipsaina Land Disputes Tribunal. It was alleged that the tribunal acted without jurisdiction in that what was in issue was a succession dispute.

The applicant argued that the elders in the tribunal did not date the award contrary to the mandatory provisions of section 3(8) of the Land Disputes Tribunals Act 1990. He further argued that although the tribunal should have been composed of 3 or 5 persons, there were 4 people presiding over the proceedings but the fourth one did not sign the award.

The second respondent denied that it was a succession matter and affirmed that her claim was to have the applicant evicted from the suit land. She submitted that only 3 elders presided over the proceedings and dated the award by rubber-stamping it.

Held:

1. Section 3 of the Land Disputes Tribunals Act 1990 gives the Tribunal jurisdiction to determine whether or not a person is a trespasser. In such an instance, it is immaterial that the suit land is registered.

2. In land dispute proceedings, where a person is named but does not participate in the proceedings or in the decision of the Tribunal, the mere presence of his name does not contravene the composition of such Tribunal under section 4(2) of the Land Disputes Tribunals Act, 1990.

3. Under section 3(8) of the Land Disputes Tribunals Act, 1990 the tribunal is obligated to give reasons for its decision, which shall contain a summary of the issues and the determination thereof, and which shall be dated and signed by each member.

4. The Land Disputes Tribunals Act 1990 is silent on how an award should be dated. Given a liberal interpretation, the award should indicate the day, month and year that it was signed by the Tribunal members. A date rubber stamp, as was used in the instant case, satisfies the requirement of section 3(8) of the Land disputes Tribunals Act, 1990

Application dismissed.

Cases

No cases referred to.

Statutes

Land Disputes Tribunals Act, No 18 of 1990 sections 3(8), 4(2)