Madhupaper International Limited v Kerr

Court of Appeal, at Kisumu

December 16, 1985

Kneller, Nyarangi JJA & Gachuhi Ag JA

 Civil Application No NAI 116 of 1985

(Application from the High Court at Nairobi, O’Connor J)

Injunction – injunction pending appeal – concurrent jurisdiction of High Court and Court of Appeal to grant – matters court should consider in exercising this jurisdiction.

The applicant company filed a suit in the High Court against the respondents, who were a bank (KCB), its subsidiary (KCFC) and the receivers appointed over the property of the applicant by the bank and the subsidiary. According to the plaint in which the applicant sought, among other things, a perpetual injunction restraining the respondents from interfering with its business, the applicant had obtained both a loan from KCFC which was secured by a debenture and an overdraft from KCB. When the applicant failed to comply with demands by KCB and KCFC for the repayments of the loan and the overdraft, which demands the applicant averred were premature, they appointed the receivers and managers who took control over the applicant’s premises. In due course, the applicant asked the court for an interlocutory injunction restraining the respondents from taking possession of its undertaking, interfering with its business or putting it under receivership until the suit was determined. After the judge dismissed the application, the applicant moved the court for an interim injunction pending the determination of its appeal from the judge’s ruling. The judge observed that there were grounds for granting an injunction that would result in an order contrary to the ruling he had previously delivered, and that the application should be made to the appeal court.

The applicant then filed an appeal against this ruling and an ex parte motion on notice under rule 5(2) of the Court of Appeal Rules asking that the orders declined by the High Court be made until the appeal is dealt with since the applicant stood to suffer great loss. The Court of Appeal granted an ex parte injunction which the parties later argued inter partes.

Held:

1. Where a judge dismisses an application for interlocutory injunction, he has jurisdiction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal and there is no inconsistency in doing so as the purpose of granting the injunction would be to prevent the decision of the appellate court from being nugatory should the appeal succeed.
2. (Obiter)It is preferable for the High Court to deal with an application for injunction pending an appeal from its decision not so much as to protect the Court of Appeal from inconvenience but more because the Court of Appeal would have the advantage of seeing what the High Court judge made of the application. The judges of the High Court should take note of this concurrent jurisdiction which the two courts have and exercise theirs.
3. The Court of Appeal’s jurisdiction to grant an injunction pending an appeal is discretionary and is to be exercised judicially and not arbitrarily. It would be wrong to grant the injunction where the appeal is frivolous or where to grant it would inflict greater hardship than it would avoid.
4. A debenture-holder having the contractual right to appoint a receiver to protect its own interests is not under any duty to refrain from exercising its rights because doing so might cause loss to the debtor or its unsecured creditors.
5. In this case, to grant an injunction pending appeal would be wrong as it would probably inflict greater hardship than it would avoid.

Application refused, ex parte injunction lifted.

Cases

1. Giella v Casssman Brown & Co Ltd [1973] EA 358
2. 2.Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448; [1974] 1 Ch 261
3. Wilson v Church (No 2) (1879) 12 Ch D 454
4. Orion Property Trust Ltd v Du Cane Court Ltd and Others [1962] 3 All ER 466; [1962] 1 WLR 1085; (1962) 106 Sol Jo
5. Cuckmere Brick Co Ltd v Mutual Finances Ltd [1971] Ch 949; [1971] 2 All ER 633; [1971] 2 WLR 1207
6. Re Potters Oils Ltd (No 2) [1986] 1 All ER 890.
7. R.A. Cripps & Sons Ltd v Wickenden and Another [1973] 1 WLR 944; [1973] 2 All ER 606

Statutes

1. Banking Act (cap 488)
2. Civil Procedure Rules (cap 21 Sub leg) order XXXIX rules 1, 2, 3
3. Court of Appeal Rules (cap 9 Sub leg) rule 5(2)
4. Court of Appeal (Amendment) Rules 1984 clause 3 (Legal Notice No 18 of 1984)

Joseph Kanyua Kariuki v Republic

Court of Appeal, at Kisumu

December 6, 1985

Kneller JA, Platt & Gachuhi Ag JJA

 Criminal Appeal No 74 of 1985

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

Criminal law – robbery – offence of - contrary to the Penal Code (cap 63) section 296(1) – definition of the offence – theft – meaning of – taking of a thing – thing not moved or caused to move – whether offence committed – Penal Code sections 295, 268(5).

Evidence – identification parade – how conducted – four accused persons lined up with twelve other persons – whether such a parade was properly conducted – whether identification in such a parade reliable.

Police - police standing orders - see Evidence - identification parade.

The appellant was convicted and sentenced on four counts of robbery contrary to section 296(1) of the Penal Code (cap 63). The fourth count stated that the appellant, jointly with three other persons, being armed with a rifle, robbed the complainant of a car and a specified amount of money. Evidence was given that the robbers had ordered the complainant, who had been carrying some money, out of her car but as it turned out, the robbers neither moved the car nor stole the money as the car had stalled when the appellant tried to start it. The appellant’s first appeal was dismissed and he filed a second appeal.

Held:

1. The definition of theft provides for the taking of the thing stolen, in that a person is not deemed to take a thing unless he moves it or causes to be moved. On the facts given in support of the fourth count, there was no robbery within the meaning of that offence in section 295 of the Penal Code (cap 63) as read with section 268(5).
2. As the appellant had the intention of stealing and had taken steps to that effect, he should have been convicted of the lesser offence of attempted robbery.
3. Under Police Force (Standing) Orders, while conducting identification parades, one accused person should be lined up against at least eight other non-accused persons. It was an infringement of the Orders and a flaw in the proceedings to line up the four accused persons with twelve other persons in an identification parade and this rendered the parade an unreliable source of identification.
4. As the identification of the appellant in support of the second count was unreliable, and there being no other evidence on this count except the caution statements of two co-accused persons, the conviction on this count was unsound.

Appeal against counts one and three dismissed, appeals against counts two and four allowed.

Cases

1. Mboche & Another v R [1973] EA 95
2. Roria v Republic [1967] EA 583

Statutes

1. Penal Code (cap 63) sections 268, 268(5), 295, 296(1), 297
2. Criminal Procedure Code (cap 75) section 179

Justus Odomo Munyole v Republic

Court of Appeal, at Kisumu

December 5, 1985

Hancox, Nyarangi JJA & Gachuhi Ag JA

Criminal Appeal No 97 of 1985

(Appeal from the judgment of High Court  of  Kenya at Kakamega, Aganyanya J dated 9th May  1984 in Criminal Appeal No. 319 0f  1985)

Retrial - when proper to order retrial - whether retrial proper where prosecution unable to try case fairly and with success - where accused may be prejudiced in his defence.

Criminal Practice and Procedure - joint trial - where several persons charged jointly with several counts of offence - how court should consider evidence in such case – failure to consider evidence against each accused separately – effect of.

Evidence – of statements - charge and cautionary statement – statement of a co-accused - whether admissible against accused – where court fails to ask co-accused if he objects to the statement – Evidence Act (cap 80) section 32 - where several persons charged jointly with several counts - how court should consider evidence – failure to consider evidence against each accused separately – effect of .

The appellant and six others were jointly charged with four counts of robbery with violence contrary to section 296(1) of the Penal Code (cap 63). The appellant, who had denied taking part in the stated robberies, was convicted and sentenced on three of the counts. On his appeal to the High Court, the convictions on two counts were quashed and his sentence reduced. On his second appeal, it was submitted, among other things, that a statement made by his co-accused which incriminated the appellant should not have been admitted in evidence against him because his coaccused had not been asked whether he objected to that statement and that the prosecution, having elected to charge the seven accused persons jointly under the several counts, failed to lead evidence to prove which accused was found in possession of which allegedly stolen goods and to which complainant such goods belonged.

Held:

1. There had been a failure by both the trial magistrate and the judge on the first appeal to analyse the evidence so as to establish which accused person was in possession of which allegedly stolen goods and to which complainant such goods belonged.
2. This failure to analyse the evidence led to a failure by the lower courts to make findings of fact as to whether the appellant was found with any, and if so, which goods. That was an error of law which prejudiced the case of the appellant.
3. The confession of a co-accused cannot in itself form the basis of a case against the accused but is intended to be used to corroborate and even to supplement the evidence in those exceptional cases in which, without its aid, the other evidence falls short by a very narrow margin of that standard of proof which is requisite for a conviction.
4. The appellant’s co-accused had not been given an opportunity to object to the charge and cautionary statement which the judge had considered in evidence against the appellant. Even if this statement had been admissible, it could not form a basis of the case against the appellant but could only supplement evidence which narrowly fell short of proof beyond reasonable doubt.
5. In a joint trial involving more than one accused person, the evidence against each accused must be considered separately and the case against each accused must be such as to prove the guilt of that particular accused beyond reasonable doubt. It is also a misdirection to deal separately with one part of the evidence and omit to relate it to the whole.
6. Had the case been properly prosecuted and admissible evidence adduced, a conviction might have resulted. However, a retrial would not be ordered as it would not be possible at the last stage for the prosecution to marshal their witnesses and exhibits so as to prosecute the case fairly and with reasonable prospect of success, and as the appellant might be prejudiced in his defence.

 Appeal allowed.

Cases

1. Gopa s/o Gidamebanya & Others v Reginam (1953) 20 EACA 318
2. Ahamed Ali Sumar v Republic [1964] EA 481
3. Makupe v Republic Criminal Appeal No 93 of 1983 (unreported)
4. Rafiq v Republic Criminal Appeal No 56 of 1983 (unreported)
5. Bassan v Republic [1960] EA 854
6. Muthige s/o Mwigai and Others v Reginam (1954) 21 EACA 267

Statutes

1. Evidence Act (cap 80) section 32

Advocates

1. Mr M Bwonwonga, Principal State Counsel,
2. Mr Timosi, for the Respondent.

Leonida Nekesa v Musa Wanjala

Court Appeal, at Kisumu August 9, 1985

Hancox JA, Platt & Gachuhi Ag JA

Civil Appeal No 23 of 1985

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

Land – registered land – first registration under the Registered Land Act (cap 300) – sanctity of such registration – whether such registration may be affected by decision of panel of elders arbitrating under the Magistrate’s Courts Act (cap 10).

Jurisdiction – of panel of elders – arbitrating under the Magistrate’s Courts Act (cap 10) – elders’ decision affecting a first registration of land under the Registered Land Act (cap 300) – whether elders’ having jurisdiction to make such decision.

A land dispute between the appellant and the respondent was referred to a panel of elders for arbitration. The appellant claimed that her deceased brother had stated in his will that the land was to be sold to discharge his debts and a share of the remainder to be given to her. The respondent, on the other hand, was the registered owner under a first registration and he gave evidence that he had been awarded the deceased’s land by family elders.

The arbitration panel found in favour of the appellant on the basis of the alleged oral will of the deceased and judgement was entered in a Resident Magistrate’s court in terms of the award.

On the respondent’s appeal, the High Court reversed the judgment on a point of jurisdiction and remitted the award to the magistrate’s court for setting aside. The appellant appealed against this decision of the High

Court.

Held:

1. The registration of the dispute land in the respondent’s name was a first registration and the elders had no jurisdiction to arbitrate over it in light of the provisions of the Registered Land Act (cap 300) section 143(1).

2. The procedure introduced into the Magistrate’s Courts Act (cap 10) by the Magistrate’s Jurisdiction (Amendment) Act, 1981 was not intended to affect title to land.

3. The proceedings taken by the elders were a nullity and this was the basis upon which the High Court should have set the proceedings aside and declared the subsequent judgment and orders a nullity.

Appeal dismissed.

Cases

Obiero v Opiyo & others [1972] EA 227

Texts

Cotran, E. (1969) Restatement of African Customary Law of Succession

London: Sweet & Maxwell Vol II

Statutes

1. Registered Land Act (cap 300) section 143(1)

2. Adjudication Act (cap 283) section 26

3. Limitation of Actions Act (cap 22)

4. Magistrates’ Juridiction (Amendment) Act 1981 section 9D(3)(a)

5. Magistrates’ Courts Act (cap 10) section 9D3(a)

Advocates

Mr Owinga for the Respondent.