Wilfred Indiasi Lianda & 2 others v Republic

Court of Appeal, at Kisumu December 4, 1992

Gachuhi, Kwach & Cockar JJ A

Criminal Appeal No 87 of 1992

(Appeal from a judgment of the High Court of Kenya at Kakamega  (Mr Justice Osiemo) dated 15th January 1992, in HCCRA Nos 465-467 of 1989)

Criminal Law - evidence - identification - whether being in company of suspected robbers earlier in the day of robbery is sufficient evidence of being part of the robbery gang.

The three appellants were tried and convicted by District Magistrate of the offence of robbery contrary to section 296 (1) of the Penal Code and sentenced to 2 years each with two strokes. Their first appeal to the High Court was dismissed.

The second appeal to the Court of Appeal was solely on identification by prosecution

The Court of Appeal while upholding the conviction of the 1st and 3rd appellants on the grounds that their identification was sufficient were doubtful as to the identification of the 2nd appellant. The only victim who claimed to have identified the 2nd appellant was the complainant. The trial magistrate while conceding that it was possible that the complainant might not have identified anybody as he believed the intruders were policemen all the same convicted him on the basis that had earlier in the day been with the other appellants.

Held:

1. A mere association for a certain period with identified criminals without any independent evidence to provide a positive link with the commission of the crime can never be a basis for a conviction.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1)

Advocates

Mr Mukavale for the Appellants

Mr Karanja for the Respondent

Mary Wesonga v Republic

Court of Appeal, at Kisumu December 4, 1992

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 120 of 1991

( Appeal from a Judgement of the High Court of Kenya at Kakamega  (Osiemo J) dated 24/10/90 in HCCR Appeal No 149 of 1990)

Criminal Law-stealing- fraudulent intent an essential ingredient.

Criminal Law -stealing-fraudulent intent-whether conviction in the absence of fraudulent intent is proper.

The appellant who was found guilty but discharged of the offence of stealing by a person employed in the public service contrary to section 280 of the Penal Code, unsuccessfully appealed to the High Court.

The only evidence, the basis of which she was convicted was her acknowledgement of shortage of money received by her for payment to cotton farmers.

Apart from the acknowledgement there was no evidence, that she stole the money.

In dismissing her first appeal the learned judge observed that there was clear and overwhelming evidence, which militated against interfering with the trial magistrates finding.

Held:

1. Fraudulent intent is a specific ingredient of the offence of stealing.

2.Credible evidence to the effect that the appellant stole the money reflected in the two counts of stealing was lacking.

3.There was a clear absence of any attempt to prove fraudulent intent on the part of the appellant. This being a specific ingredient of the offence with which the appellant was charged in the two counts, its absence was fatal to her conviction.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 35(1); 268(1); 280

Advocates

Mr Karanja for the Respondent/ State

Criminal practice and procedure-appeal-dismissal of appeal-where the appellant could not be traced-Court of Appeal Rules, Rule 70 (7)

Esso Kenya Ltd v Mark Makwata Okiya

Court of Appeal, at Kisumu July 10, 1992

Gachuhi, Masime & Kwach JJ A

Civil Appeal No 69 of 1991

(Appeal from the Ruling of the High Court of Kenya at Kakamega  (Osiemo J) dated 20th February 1991 in HCCC No 379 of 1990)

Injunctions – temporary injunctions – principles for grant of an order of an injunction – where the public interest is at stake against a private person’s claim for profit – consideration by court.

Public Interest – where public interest and property is at stake due to a claim by a private person – whether the Court can make an order detrimental to public interest.

The appellant entered into an agreement with the respondent granting him an exclusive licence to sell the appellant’s products at the service station. The appellant wrote to the respondent terminating the agreement on allegations that he had deliberately contaminated the products. The respondent sought an injunction which was granted by the High Court and an order for damages. The appellant was denied stay pending appeal by the High Court but the Court of Appeal granted stay pending appeal for the appellant to challenge the temporary injunction.

Held:

1. The judge himself made an order for payment of damages against the appellant which implies he accepted that this was a case where damages would be an adequate remedy. This appreciation should have logically led him to the conclusion that the respondent had not laid any proper basis for the grant of an injunction.

2. The judge did not take into account the serious issues of public safety and possible damage to property. There are considerations which must of necessity override the economic interests of the respondent. In his pursuit of profit the society cannot allow him to put at risk the lives and property of members of the public.

3. Once the operator’s agreement was terminated the prayers in the temporary injunction application could not be granted as they assume the agreement was in place.

4. It is settled law that where the remedy sought can be compensated by an award of damages then the equitable relief of an injunction is not available.

5. The Court should avoid granting orders which have not been asked for in the application before it or determine the issues in the suit before the actual hearing.

Cases

1. Esso (Kenya) Ltd v Gumbi Road Service Station Ltd Civil Appeal No 12 of 1991

2. Giella v Cassman Brown & Co Ltd [1973] EA 358

Texts

Hailsham, Lord et al (Eds) (1979) Halsbury’s Laws of England London: Butterworths & Co Ltd 4th Edn Vol XXIV para 953

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XXXIX

Advocates

Mr Muthoga for the Appellant

Mr Bakhoya for the Respondent

Jonathan Orengo Obiayo v Moses Ondiegi Okoth

Court of Appeal, at Kisumu June 19, 1992

Masime, Gicheru & Kwach JJ A

Civil Appeal No 146 of 1990

(Appeal from the Ruling and order of the High Court of Kenya at Kisumu (Omolo, J) dated 2nd July, 1990 in HCCC No 138 of 1987) 

Succession - intestate succession – where a beneficiary files suit before taking out letters of administration – where letters of administration are taken out later – whether such a party can maintain the suit – section 80 (2), and 82 of the Law of Succession Act cap 160.

The appellant by chamber summons filed in Court, sought to strike out the plaint on two points. Firstly that the respondent had no locus standi having not applied for and obtained a grant of letters of administration to the estate of his father thus the suit was incompetent. Secondly, he argued that as the title he held to land was a first registration the prayers sought in the plaint were unavailable. The High Court declined to strike out the plaint and allowed the respondent to amend the plaint to substitute a cause of action based on trust. The judge held that the grant of letters of administration after filing of the plaint enabled him to maintain the suit. The appellant lodged an appeal from the said decision on grounds that it was erroneous.

Held:

1. Section 80 of the Law of Succession Act (cap 160) provides that a grant of letters of administration, with or without the will annexed, shall take effect only as from the date of the grant.

Appeal allowed.

Cases

No cases referred to.

Statutes

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

2. Law of Succession Act (cap 160) sections 80, 82(a)

Kigen Kandagor v Rotich Kandagor

Court of Appeal, at Kisumu April 10, 1992

Cockar, Muli JJ A & Omolo Ag JA

Civil Appeal No 71 of 1989

(An appeal from the Judgment of the High Court of Kenya at Nakuru (Tunoi J), dated 25th July 1988 in HCCA No 19 of 1987)

Land- land dispute –reference of a land dispute to a panel of elders –whether a complaint should be made directly to the panel or reference should be made by a magistrate –effect of – decision where a complaint is made directly to the panel –provisions of the Magistrates’ Courts Act section 9A (1), (a), (b), (c) and (d).

Land -land dispute –panel of elders –whether a panel of elders has jurisdiction to deal with a dispute relating to registered land.

Adverse possession- procedure - procedure to apply for acquisition of land by adverse possession - section 38 of the Limitation of Actions Act cap 22 and o XXXVI of the Civil Procedure Rules.

A complaint was filed before the District Officer by the respondent claiming that the appellant had trespassed into 3 acres of the adjoining respondent’s land, thus he sought a rectification so that he could get his 3 acres back. The panel of elders in its decision held that the land belonged to the respondent. Upon filing of the decision in Court the appellant objected that the elders did not have jurisdiction, which the Court upheld on a further appeal, the High Court reinstated the award of the panel of elders and made orders that the respondent had acquired the property through adverse possession.

The appellant appealed to the Court of Appeal on grounds that the judge erred in setting aside the ruling of the magistrate and confirming the elders’ award yet they had no jurisdiction and the judge erred by making orders which were outside the appeal proceedings before him.

Held:

1. Reference to the panel of elders through a direct complaint to a district officer was not a valid reference at all. Jurisdiction by the panel of elders to deal with matters set out in section 9A (1)(a), (b), (c) and (d) of the Magistrates’ Courts Act is derived only through a reference to it by a magistrate’s court.

2. Apart from the proceedings before the panel of elders being a nullity, they had no jurisdiction to deal with a dispute relating to registered land where the ownership is by first registration.

3. There is a special procedure laid down to prove adverse possession in court.

Cases

1. Khayadi v Agwanda [1988] KLR 204; [1982-88] 1 KAR 1155

2. Nekesa v Wanjala [1987] KLR 140

Statutes

1. Magistrates’ Courts Act (cap 10) section 9A(1)

2. Registered Land Act (cap 300) sections 143, 159

3. Limitation of Actions Act (cap 22) section 38

4. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rule 3D(1),(2),(3)