Beatrice Wanjiru Kinyua v Republic

Court of Appeal, at Nyeri May 16, 2003

Shah, O’Kubasu & Keiwua JJ A

Criminal Appeal No 42 of 2003

(Appeal from the conviction and sentence of the High Court at Nyeri,

Juma J dated 18 April 2002 in High Court Criminal Case No 24 of 2002)

Evidence – evidence of a minor - child of tender years as a witness – procedure in admitting such evidence.

Criminal Practice and Procedure – defences – alibi defence – duty of the court to consider the defence.

The appellant was convicted in the High Court for the offence of murder. She appealed on the grounds that, the trial judge erred in law and fact in failing to properly direct himself on the defence of alibi raised by the appellant and in failing to warn himself of the danger of admitting the uncorroborated evidence of a minor and on basing a conviction on such evidence.

Held:

1. The young boy witness was examined by the trial judge as to whether he understood the nature of the oath. The judge was satisfied that the child understood the nature of the oath and hence the child gave evidence on oath. The trial judge very properly adopted the correct procedure in such a situation.

2. In summing up to the assessors, the trial judge stated that there was need for corroboration in respect of evidence of a young boy. The trial judge could not be faulted on the issue of corroboration

3. The trial judge had the correct approach on the defence of alibi. He considered the prosecution evidence vis a vis what the appellant and her witness said and in the end was satisfied that the defence of alibi was false.

Appeal dismissed.

Cases

1. Okeno v Republic [1972] EA 32

2. Kolil v R [1959] EA 92

3. Ssentale v Uganda [1968] EA 365

4. Muiruri v Republic [1982-88] 1 KAR 150

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr Nderi for the Appellant.

Criminal Practice and Procedure - appeal – summary rejection of appeal – appellant convicted on uncorroborated evidence of a minor – appeal summarily rejected – when summary rejection of appeal can be invoked.

Criminal Practice and Procedure - appeal – summary rejection of appeal – appellant convicted on uncorroborated evidence of a minor – appeal summarily rejected – when summary rejection of appeal can be invoked.

The appellant was tried and convicted of the offence of incest contrary to section 166 (1) of the Penal Code. The conviction was based on the uncorroborated evidence of a minor. His appeal to the High Court was summarily rejected. He appealed against the summary rejection of the appeal.

Held:

1. The jurisdiction to summarily reject an appeal ought to be invoked in clearest of cases.

2. In this case, the issue of whether there was cogent corroboration of the complainant’s evidence was a matter of mixed law and fact. Similarly, the issue of autrefois acquit was a matter of law and there could well be an argument that the sentence could be reduced.

3. The High Court judge ought to have heard the appellant on the 14 year sentence.

Appeal allowed. Summary rejection of the appeal quashed and direction given that the appeal admitted to hearing.

Cases

No cases referred to.

Statutes

1. Criminal Procedure Code (cap 75) section 352 (2)

2. Penal Code (cap 63) section 166 (1)

3. Evidence Act (cap 80) section 124

4. Public Health Act (cap 242) section 44 (1)

Ngera Kamau Wahome v Republic

Court of Appeal, at Nyeri May 16, 2003

Shah, O’Kubasu & Keiwua JJ A

Criminal Appeal No 61 of 2001

(Appeal from an order of the High Court at Nyeri (Juma, J)

dated 23rd May, 2000 in H C C Cr A No 86 of 2000)

Criminal Practice and Procedure - appeal – summary rejection of appeal – appellant convicted on uncorroborated evidence of a minor – appeal summarily rejected – when summary rejection of appeal can be invoked.

The appellant was tried and convicted of the offence of incest contrary to section 166 (1) of the Penal Code. The conviction was based on the uncorroborated evidence of a minor. His appeal to the High Court was summarily rejected. He appealed against the summary rejection of the appeal.

Held:

1. The jurisdiction to summarily reject an appeal ought to be invoked in clearest of cases.

2. In this case, the issue of whether there was cogent corroboration of the complainant’s evidence was a matter of mixed law and fact. Similarly, the issue of autrefois acquit was a matter of law and there could well be an argument that the sentence could be reduced.

3. The High Court judge ought to have heard the appellant on the 14 year sentence.

Appeal allowed. Summary rejection of the appeal quashed and direction given that the appeal admitted to hearing.

Cases

No cases referred to.

Statutes

1. Criminal Procedure Code (cap 75) section 352 (2)

2. Penal Code (cap 63) section 166 (1)

3. Evidence Act (cap 80) section 124

4. Public Health Act (cap 242) section 44 (1)

James Wanjohi Kinyua v Republic

Court of Appeal, at Nyeri May 16, 2003

Tunoi, O’Kubasu & Keiwua JJ A

Criminal Appeal No 41 of 2003

(Appeal from a conviction and sentence of the High Court at Nyeri (Juma J)

on 8.11.2001 in HCCCr No 16 of 1991)

Evidence - evidence of a minor - appellant convicted of murder on evidence of minors - evidence corroborated by the mother and doctor who carried out post-mortem - whether appellant properly convicted.

Criminal Practice and Procedure - confession - appellant making confession to police - confession retracted - confession admitted after trial within a trial - overwhelming evidence that the appellant killed the deceased - whether statement by the appellant properly admitted.

Criminal law - manslaughter - appellant admitting that death was accidental - no evidence rebutting the allegation - trial judge convicting appellant of murder - whether conviction of manslaughter ought to have been entered.

Minor - evidence of a minor - unsworn testimony of a minor – evidence corroborated and used as a basis for conviction - whether conviction proper.

The appellant was convicted of murder contrary to section 203 as read with section 204 of the Penal Code on the evidence of two minors whose evidence was not taken on oath as the trial judge was of the view that they were too young to understand the meaning of an oath. There was also evidence of the mother of the deceased and that of the doctor who had carried out the post-mortem.

At the time of his arrest the appellant had made a confession to the police which he later retracted but was subsequently admitted following a trial within a trial. In the said statement the appellant alleged that the killing was accidental and the prosecution did not adduce evidence to rebut the claim. The appellant appealed.

Held:

1. There was overwhelming evidence that it was the appellant who cut the deceased on the head as narrated by the two young children whose evidence was corroborated by that of the mother of the deceased and the doctor who conducted a post-mortem examination on the body of the deceased.

2. Considering the evidence adduced during the trial as a whole, the Court was satisfied that the statement by the appellant was properly admitted.

3. In view of what the appellant said in his charge and caution statement that he accidentally cut the deceased and as there was no evidence in rebuttal, the appellant ought to have been given the benefit of doubt.

Appeal allowed, conviction for murder substituted with a conviction for manslaughter.

Cases

1. Okeno v Republic [1972] EA 32

2. Muiruri v Republic [1982-88]1 KAR 150

3. Kolil v R [1959] EA 92

4. Tuwamoi v Uganda [1967] EA 84

Statutes

Penal Code (cap 63) sections 202(1), 203, 204, 205

Advocates

Mr A J Kariuki for Appellant

Kenya Shell Company Ltd v Charles

Court of Appeal, at Nyeri May 16, 2003

Tunoi, Shah & Keiwua JJ A

Civil Appeal No 7 of 2000

(Appeal from a Ruling and Order of High Court at Meru (Omwitsa CA)

dated 9.11.1999 in HC Misc Civil App No 70 of 1999)

Judicial Discretion – exercise of judicial discretion - interference with exercise of judicial discretion of the High Court by appellate court – circumstances in which the court may interfere with exercise of judicial discretion by lower court.

The appellant company appealed against a ruling of the High Court dismissing its application for extension of time on the grounds of laches and indolence. The appellant argued that the Commissioner of Assize in arriving at his decision failed to exercise his discretion judiciously and had ignored the wider interest of justice to have the case decided on its merits.

Held:

1. The decision whether or not to extend the time for appealing is essentially discretionary.

2. In general, the terms which the court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.

3. In the present case the Commissioner of Assize exercised his discretion judicially and not arbitrarily or capriciously as the delay involved was substantial and inordinate.

Appeal dismissed with costs.

Cases

Mbogo v Shah [1968] EA 93

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order IXB rule 8

Advocates

Mr Kimundi for the Appellant.

Criminal law - robbery with violence - appellant known to the complainant - offence committed at night - complainant recognizing the appellant – appellant convicted on evidence of only one eye witness - whether appellant properly convicted. Criminal Practice and Procedure - form of charge - charge sheet – charge sheet indicating appellants armed with “panga”- sword produced in evidence as weapon used - whether use of word “panga” instead of “sword” fatal to conviction.

Criminal law - robbery with violence - appellant known to the complainant - offence committed at night - complainant recognizing the appellant – appellant convicted on evidence of only one eye witness - whether appellant properly convicted.

Criminal Practice and Procedure - form of charge - charge sheet – charge sheet indicating appellants armed with “panga”- sword produced in evidence as weapon used - whether use of word “panga” instead of “sword” fatal to conviction.

The appellant was convicted by the trial magistrate of the offence of robbery with violence contrary to s 296(2) of the Penal Code. His appeal to the High Court was dismissed. The prosecution’s case was that both the appellant and the complainant hailed from the same village. The complainant was walking home at night when he was attacked by the appellant in the company of another person. The complainant recognized the appellant with the aid of a torch he was carrying.

The appellant appealed to the Court of Appeal alleging that his conviction was based on the evidence of only one eye witness and that the charge was fatally defective since it indicated he was armed with a panga whereas the police produced a sword as the weapon used during the robbery.

Held:

1. From the evidence recorded by the trial court, the findings thereon and the observations of the first appellate court, there was no mistake as to the identity of the appellant, hence he was properly found guilty of the offence for which he was convicted.

2. The use of the word “panga” instead of “sword” in the charge sheet was not fatal to the conviction and such use occasioned no prejudice to the appellant in as much as both are implements or weapons whose use is of the same effect.

Appeal dismissed.

Cases

1. Abdalla Bin Wendo v Republic (1953) 20 EACA 166

2. Roria v R [1967] EA 583

3. Kamau v Republic [1975] EA 139

4. Anjononi & others v R [1980] KLR 59

Statutes

Penal Code (cap 63) section 296(2)

Advocates

Mr Gachoka for Appellant

Mr Oluoch for State