Land law - dispute between father and son over occupation of ancestral land - land registered in the name of father after land consolidation - land registered under the Registered Land Act - father seeking to evict his son from the land due to family disagreement - whether son having a customary law right to occupy ancestral land - whether customary rights extinguished by father's rights as registered owner under section 27 of the Registered Land Act - whether son's occupation and possession of the land gave rise to a trust.

Negligence - traffic accident - collision between a lorry and motor cycle resulting in death of 34 year man - deceased married with children - evidence - burden of proof to lie on the party who asserts - apportionment of negligence.

Kinoti v Republic

Court of Appeal, at Nyeri November 5, 2004

O’Kubasu, Githinji & Waki JJ A

Criminal Appeal No 54 of 2004

(Appeal from the Ruling of the High Court of Kenya at Nyeri (Khamoni J) dated 2nd February, 2004 in HCCRA No 71 of 2002)

Criminal Practice and Procedure – appeal - summary dismissal of appeal – appeal from subordinate court to the High Court - where appeal is dismissed for want of prosecution – remedy available to the appellant – whether to appeal or to apply for setting aside of the dismissal order – whether an appeal falling under section 353 and 354 of the Criminal Procedure Code (cap 75) can be summarily dismissed – whether court obliged to consider the appeal and make a determination.

The appellant was convicted in a Senior Resident Magistrate’s Court on two counts of assault and sentenced to a fine. His appeal against the judgment was admitted to hearing on 12th May, 2003. On the first hearing date, the appeal was adjourned as there was no appearance for both the appellant and the State.

On the next hearing date, there was no appearance for the State and the hearing was adjourned again to February 2, 2004. On that date, the appellant’s advocate instructed a colleague to apply for an adjournment for the reason that she would not make it from Meru to the Court in Nyeri  in time for the hearing. Khamoni J refused to grant an adjournment and dismissed the appeal for failure to prosecute it. The appellant filed this appeal against that order.

Held:

1. The course open to the appellant upon the dismissal of his appeal for want of prosecution was to take out a Memorandum of Appeal to the Court of Appeal because there are no provisions in the Criminal Procedure Code (cap 75) for setting aside such dismissal before the same court. Indeed, there is no provision for determination of an appeal that has been admitted to hearing without consideration by the court of the merits thereof.

2. The appellant’s appeal before the High Court was governed by section 353 and 354 of the Criminal Procedure Code. While section 353 which relates to the notice of time and place of hearing is couched in mandatory terms, there is no mandatory requirement in section 354, which relates to the powers of the High Court at the hearing of an appeal, that the appellant or his advocate or the State should address the Court.

3. It is nonetheless incumbent on the Court to consider the appeal and make a determination in accordance with section 354(3) of the Code.

4. The High Court had erred in dismissing the appeal summarily. Furthermore, the grounds upon which the appellant’s advocate had sought an adjournment were reasonable in the circumstances.

Appeal allowed, order dismissing appeal quashed, record remitted back to the High Court for hearing.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 251, 259

2. Criminal Procedure Code (cap 75) sections 352(1); 353; 354(3)

Advocates

Mrs Ntarangwi for the Appellant

Mr Orinda for the Respondent

Kanyeki v Republic

Court of Appeal at Nyeri November 5, 2004

O’Kubasu, Githinji & Waki JJ A

Criminal Appeal No 38 of 2001

(Appeal from the judgment of the High Court at Nyeri (Juam & Tuiyot JJ) dated 1st December 2000 in HCCr Appeal No 92 of 2000)

Criminal Practice and Procedure – prosecutor – persons who are qualified to conduct public prosecutions – prosecution conducted by an unqualified person – police officer of the rank of sergeant - whether the trial should be declared null and void – whether a retrial should be ordered.

Criminal Practice and Procedure – retrial – circumstances in which a retrial may be ordered – trial declared a nullity for having been conducted by a person not qualified to be a public prosecutor – court considering whether to order retrial – court taking into account the nature of the offence charged and the availability of witnesses.

The appellant was tried and convicted in a Senior Resident Magistrate’s Court on three counts of robbery with violence contrary to section 296(2) of the Penal Code (Cap 63) and sentenced death. His appeal to the High Court was dismissed and he filed this second appeal.

State Counsel drew the Court’s attention to the fact that the prosecution of the appellant before the subordinate court had been conducted by a person who was not qualified to conduct such prosecution, being a police officer of the rank of Sergeant. State Counsel therefore urged the Court to order a retrial on the ground that there was clear evidence against the appellant. The appellant’s advocate submitted that this was not a proper case for a retrial as the appellant had been sufficiently punished.

Held:

1. The issue of who is a qualified person to prosecute in criminal trials had been considered by this Court in various decisions. For one to be appointed as a public prosecutor by the Attorney General one must either be an advocate of the High Court of Kenya or a person employed in the public service not being a police officer below the rank of an assistant Inspector of Police.

2. Because the police officer who conducted the appellant’s prosecution did not in law have authority to prosecute as a public prosecutor, this Court would declare the entire trial a nullity with the result that the convictions recorded against the appellant are quashed and sentences set aside.

3. On the issue of retrial, the plea by counsel for the appellant to the effect that his client had been sufficiently punished would only be appropriate if the appellant had been tried on some other offence which did not provide for a mandatory death sentence.

4. Considering the nature of the alleged offence and that the victims of the robbery were from Nyeri town where the robbery was alleged to have been committed and they could be easily traced, this was a proper case for a retrial.

Retrial ordered.

Cases

Elirema & another v Republic [2003] KLR 537

Statutes

Penal Code (cap 63) section 296(2)

Advocates

Mr Ng’ang’a for the Appellant.

Mr Orinda for the Respondent.

Judicial Review - certiorari - power of the High Court to quash the proceedings of inferior tribunals where a decision is made without jurisdiction - jurisdiction of a Land Disputes Tribunal - Land Disputes Act 1990 section 3 - whether the Tribunal has powers to award ownership of land registered under the Registered Land Act (Cap 300)

Civil Procedure - application for extension of time to serve notice of appeal and filed record of appeal - duty of applicant to establish good reasons entitling him to the exercise of the court's discretion to extend time in his favour.

Civil Procedure - application for extension of time to file and serve notice and record of appeal - Court of Appeal Rules rule 4 - discretion of the court in extending time - principles the court will consider in such an application

Arbitration - setting aside arbitrator's decision on grounds of corruption,misconduct and fraudulent concealment of facts by a party - duty of applicant to prove the grounds for the setting aside of the award

Arbitration – reference of an issue to arbitration – Civil Procedure Rules Order 45 rule 17 - suit for revocation of grant – parties agreeing to go to arbitration on the issue of who was entitled to inherit the suit land – whether proper to revoke the gra