Orero v Seko

Court of Appeal, at Kisumu December 10, 1984

Hancox JA, Chesoni & Nyarangi Ag JJA

Civil Appeal No 53 of 1984

(Appeal from the High Court at Kisumu, Schofield J)

Appeal – summary  dismissal of - of appeal under Civil Procedure Act (cap 21) section 79B - power of court to dismiss appeal – summarily exercised - appeal raising substantial grounds in law - whether power of summary dismissal exercisable on such appeal.

Judicial discretion - exercise of - discretion to review order under Civil Procedure Rules order XLIV rule 1 - failure of judge to consider all provisions of order XLIV rule 1 entitling applicant to review – whether judge thereby precluding himself from exercise of discretion to review.

Review - powers of - judicial discretion - in exercise of - consideration of the delay in applying for review - when delay is inordinate.

Review - application for - grounds upon which application is made - effect of failure by judge to consider all grounds.

The appellant had filed a suit seeking an eviction order against the respondent who he alleged had wrongfully occupied his land. In the course of the hearing, it became apparent that the trial magistrate had earlier on heard the suit in a case that had involved the relatives of the appellant and the respondent.

After hearing and considering the evidence, the trial magistrate dismissed the appellant’s suit and the appellant filed an appeal to the High Court. Among his grounds of appeal, he stated that the trial magistrate should have disqualified himself from the hearing of the suit. The appeal was summarily rejected and the appellant then moved the High Court by way of notice of motion under the Civil Procedure Act (cap 21) section 80 and under the Civil Procedure Rules order XLIV rule 1 for the court to review the summary rejection of his appeal. That application also was refused and dismissed and the appellant appealed against that decision.

Held:

1. The power granted by the Civil Procedure Act section 79B to a judge of the High Court to summarily reject an appeal should be used most carefully and only in the clearest case such as an appeal based wholly on matters of fact upon which proper findings will have been made.

2. The appellant’s memorandum of appeal contained substantial grounds of law and the summary rejection of the appeal was erroneous.

3. The High Court order summarily rejecting the appellant’s appeal was appealable but as no appeal had been preferred, it was capable of being reviewed as it fell within the provision of the Civil Procedure Act (cap 21) section 80 on review.

4. Under the Civil Procedure Rules order XLIV rule 1(1), there are three grounds upon which a review may be sought and by reciting only one of these grounds, the judge hearing the appellant’s application for review had excluded himself from exercising his discretion.

5. Review may be sought on the following grounds:

a) where there is new and important matter or evidence which after exercise of due diligence was not within the knowledge of an applicant at the time the decree was passed.

b) where there is a mistake or error apparent on the face of the record, and

c) for any other sufficient reason.

6. In applications for review, the judge is entitled to take into account the delay by the applicant to apply for review, but in this case the delay was not inordinate.

Appeal allowed.

Cases

Nzioki v Kitusa Civil Appeal No 54 of 1982; [1984] KLR 487

Statutes

1. Civil Procedure Act (cap 21) sections 79B, 80

2. Civil Procedure Rules (cap 21 Sub Leg) order XLIV rule 1

Advocates

Mr Opiacha for Appellant

Ochieng v Ranmal Merag Ltd

Court of Appeal, at Kisumu

December 10, 1984

Hancox JA

Civil Application No NAI 27 of 1984

Appeal - extension of time – application for – appeal struck out – party seeking extension of time to reinstate appeal – whether court has jurisdiction to entertain such application – Court of Appeal Rules rule 4.

Appeal – extension of time for filing – application for – appeal struck out on technicality – party seeking extension of time to reinstate appeal – whether court has jurisdiction to entertain such application – Court of Appeal Rules rule 4.

The respondent obtained judgment and decree against the applicant pursuant to which the applicant’s property was sold and his application to the High Court to set aside the sale was dismissed. The applicant filed an appeal against the judgement and decree which was struck out on, among other grounds, the condition of the record of appeal and the institution of the appeal some four and a half months out of time. The applicant filed a fresh application in the Court of Appeal seeking leave to file his appeal out of time.

Held:

1. The Court of Appeal has jurisdiction to entertain an application for extension of time to enable an appeal which has been struck out and not dismissed to be re-instated

2. The purchaser of the applicant’s property was a person directly affected by the intended appeal and who should have been served with the notice of appeal and with this application.

3. Though rule 4 of the Court of Appeal Rules no longer required the applicant to give sufficient reason for the delay in instituting the appeal, he should at least have give some explanation for it.

4. (Obiter) In applications, the substantive rule providing for the exercise by the court of the power sought should appear in the heading of the Notice of Motion. The reference in the applicant’s application to the general rule as to the manner of bringing the application was surplusage.

Application allowed on terms.

Cases

1. Murai v Wainaina Civil Application No NAI 9 of 1978; [1982] KLR 33

2. Ngoni-Matengo Co-operative Marketing Union Limited v Alimahomed Osman [1959] EA 577

3. Ruithibo v Nyingi Civil Appeal No 21 of 1982; [1984] KLR 505

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 4, 42, 43(2), 52(b), 76(1) 81(1)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXI rule 78; order XLI rule 4(1); order XLII rule 1(2)

Advocates

Mr Omondo for Applicant

Mr Raichura for Respondent

Jackson Oluoch & Another v Republic

Court of Appeal, at Kisumu

December 7, 1984

Chesoni, Nyarangi & Platt Ag JJA

Criminal Appeal No 66 of 1984

(Appeal from the High Court at Kisumu, Schofield J)

Criminal law - robbery - ingredients of the offence - how offencedifferentiated from robbery with violence - Penal Code section 296(1).

Evidence - identification parades - conduct of - procedure at - suggestionto witness that person to be identified present on the parade - whetheridentification parade properly made - dock identification - whether dockidentification valuable where identifying witness not involved in anyprevious identification parade - identification evidence of single witnessto be tested with the greatest care.

Evidence - witness - evidence of single witness - when evidence of singlewitness to be treated with great care.

Sentencing - punishment - offence of shop breaking and committing felony- order of post-imprisonment police supervision of convicted person -convicted person a first offender - whether sentence proper - CriminalProcedure Code (cap 75) section 344A.

The two appellants were convicted and sentenced by the magistrate’s courton three counts of robbery and one count of shop breaking and committinga felony contrary to the Penal Code sections 296(1) and 306(a) respectively.After their appeals to the High Court were dismissed, they made secondappeals to the Court of Appeal where their cases depended entirely onwhether or not there had been sufficient evidence of their identification.The evidence showed that the appellants had been identified as the personswho had committed the offences charged in an identification parade by awitness who had previously known them. Another witness who had beenthe victim of a recent robbery attended the identification parade at whichhe stated that he had been told “to identify the people who robbed [him]”.Two other witnesses did not attend the identification parade but identifiedthe appellants in the dock during the hearing of the case.The trial magistrate and the High Court judge had made concurrent findingsthat the identification parade had been properly conducted and that theappellants had been positively identified.

Held:

1. In an identification parade, it is dangerous to suggest to an identifyingwitness that the person to be identified is believed to be present on theparade. The value of the parade as evidence in this case was considerablydepreciated by that fact.
2. A dock identification of an accused person by a witness where therehad been no identification parade conducted earlier, and at which thewitness is present, is almost worthless.
3. A fact may be proved by a single witness but when such evidence is inrespect of identification it must be tested with the greatest care.
4. The two concurrent findings made by the trial magistrate and the judgethat the identification parade was properly conducted and that theappellants were positively identified were based on a misdirection whichconstituted an error of law concerning a vital aspect of the prosecutioncase.
5. An order for police supervision after jail does not automatically followfor a person convicted of shopbreaking and committing a felony wherethe person is a first offender.
6. (Obiter) It is not the degree of actual violence that differentiates theoffence of robbery and robbery with violence. Robbery with violenceis committed in any of the following circumstances:

a) The offender is armed with any dangerous and offensive weapon orinstrument; or
b) The offender is in company with one or more other person or persons;or
c) At or immediately before or immediately after the time of the robbery,the offender wounds, beats, strikes, or uses other personal violence toany person. The ingredients of the offence of robbery under section296(1) of the Penal Code are:

i) stealing anything, and
ii) at or immediately before or immediately after thetime of stealing,
iii) using or threatening to use actual violence to anyperson or property in order to obtain or retain the thingstolen or to prevent or to overcome resistance to its beingstolen or retained.

Appeal allowed.

Cases

1. R v Mwango s/o Manaa (1936) 3 EACA 29
2. Rex v Lulatikwa s/o Kabaile alias Rutahaba s/o Kasase (1941) 8 EACA 46
3. Kiarie v Republic Criminal Appeal No 93 of 83; [1984] KLR 739
4. Roria v Republic [1967] EA 583
5. Abdallah bin Wendo & Sheh bin Mwambere v Reginam (1953) 20 EACA166
6. Benjamin Mugo Mwangi & another v R Criminal Appeal No 100 of1984; [1984] KLR 595

Statutes

1. Criminal Procedure Code (cap 75) sections 179 (2), 344(A)
2. Penal Code (cap 63) sections 296 (1), (2); 306(a)

Advocates

1. Mr Ndegwa for the Appellant
2. Mr Bwonwonga for the Respondent

Oweno v Municipal Council of Kisumu

Court of Appeal, at Kisumu

 June 22, 1984

Kneller JA, Chesoni & Nyarangi Ag JJA

Civil Appeal No 27 of 1984

(Appeal from the High Court at Kisumu, Schofield J)

Employment - employment contract - secondment - termination of employment - terminal leave allowance - whether secondment affected the terms of terminal leave allowance under the contract.

Employment - see Contract - employment contract also.

The appellant was an employee of the Central Government employed by the East African Community. He was seconded to the respondent as a Town Treasurer, and his secondment was terminated by way of a letter and a dispute arose at the settlement of some of the appellant's benefits.

The respondent claimed that the appellant was not entitled to some of the benefits he sought such as owner occupier allowance. The High Court granted some of the claims and disallowed the claim for owner occupied house allowance. The appellant appealed.

Held:

1. The terminal leave allowance was payable on the central government rates as the Council did not direct that the terms and conditions of the Council would apply to the officer on secondment.
2. The claim for owner occupied house allowance would similarly succeed as the Council had not made resolutions to affect the appellant's entitlement to the allowance.

Judgment for the appellant accordingly.

Cases

No cases referred to.

Statutes

No statute referred to.

Kariuki v Republic

Court of Appeal, at Kisumu June 20, 1984

Hancox JA, Chesoni & Nyarangi Ag JJA

Criminal Appeal No 22 of 1984

(Appeal from the High Court at Kakamega, Gicheru J)

Criminal Practice and Procedure - plea - plea of guilty - manner of recording plea - plea recorded in the word “do” after stating of facts of offence to accused - whether plea properly taken and recorded - how plea of guilty should be recorded.

Appeal - second appeal - jurisdiction of court to order retrial – derivation and scope of the jurisdiction - Criminal Procedure Code (cap 75) section 361(2).

Civil Practice and Procedure - retrial - circumstances in which retrial ordered - omissions and irregularities made by trial magistrate - trial of accused unsatisfactory - whether retrial proper order to make - power of Court of Appeal to order retrial on second appeal - Criminal Procedure Code (cap 75) section 361(2).

The appellant was charged along with four other persons, with importing goods contrary to sections 185(ii) and 197(1) of the Customs and Excise Act (cap 472) and under section 184 subsections (b) and (c)(iii) of the same Act, he was charged with “allowing goods intended for illegal importation to be placed on a board of a motor vehicle for conveyance…”. The particulars of the charges were read and explained to the appellant and his co-accused persons. After the prosecutor had narrated the facts, the record of the proceedings reads:

“Accused 1-story is correct

Accused 2-do

Accused 3-do

Accused 4-do

Court-plea of guilty entered for all”.

The trial magistrate sentenced the appellant and ordered the forfeiture of the motor vehicle. It was unclear from the record which of the two counts the appellant was alleged to have replied “do”.

The appeal to the High Court against conviction and sentence was successful in respect of the first count but the appeal against conviction on the second count was dismissed and the forfeiture of the motor vehicle was upheld. The appellant appealed to the Court of Appeal.

Held:

1. The word “do” recorded by the trial court as the accused persons’ answer to the facts of the of the offence meant nothing and was neither an admission nor a denial of the facts.

2. The manner in which a plea of guilty should be recorded is:

(a) the trial magistrate or judge should read and explain to the accused the charge and all the ingredients in the accused’s language or in a language he understands;

(b) he should then record the accused’s own words and if they are an admission, a plea of guilty should be recorded;

(c) the prosecution may then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;

(d) if the accused does not agree to the facts or raises any question of his guilt his reply must be recorded and a change of plea entered but if there is no change of plea, a conviction should be recorded together with a statement of the facts relevant to sentence and the accused’s reply - Adan v Republic [1973] EA 445.

3. The statement of offence in the second count and the particulars revealed at least three charges against the appellant and one could not tell to which one he was alleged to have pleaded guilty.

4. The irregularities and omissions committed by the subordinate court resulted in the appellant not having a satisfactory trial.

5. The fairest and proper order to make where the accused person has not had a satisfactory trial is an order for a retrial.

6. The Court of Appeal has authority and jurisdiction on a second appeal to remit the case, together with its judgment or order thereon, to the first appellate court or to the subordinate court for determination, whether or not by way of rehearing, with such directions as the Court of Appeal may think necessary - Criminal Procedure Code (cap 75) section 361(2).

Appeal allowed, case remitted to subordinate court for retrial.

Cases

1. Adan v Republic [1973] EA 445

2. Vashanjee Liladhar Dossani (1946)13 EACA 150

Statutes

1. Customs and Excise Act (cap 472) sections 184(c) (iii); 185(ii); 197(i); 201(1); 203(a)

2. Criminal Procedure Code (cap 75) sections 207(2), 361(2)