Omoro v Republic

Court of Appeal, at Kisumu December 2, 1994

Gicheru, Akiwumi & Tunoi JJ A

Criminal Appeal No 114 of 1987

(Appeal from a conviction and sentence of the High Court of Kenya  at Kisumu (Mr Justice R S C Omolo) dated 13th May, 1987 in HCCR Case No 18 of 1986)

Criminal law – murder – essential ingredients of the offence of murder – section 204 Penal Code.

Criminal law – murder – appellant killing the deceased as a result of a simmering land dispute – trial court omitting to inquire into the role of the dispute in the killing – whether conviction for murder was sound.

The appellant who was convicted for murder and sentenced to death appealed against his conviction contending on the main that there was no clear evidence as to who was at the scene of the incident thereby casting serious doubt over the witnesses recount of what happened on the material day.

Counsel for the appellant further submitted that non-exploration of the issue of provocation and eventually omitting to put it to the assessors by the trial judge led the assessors into returning a verdict of murder when the circumstances of the killing pointed to manslaughter particularly considering that the main actors in this tragedy were relatives who had a running land dispute between them.

The State however submitted that there was nothing in the prosecution’s case that indicated the witnesses had made up the story of the deceased’s assault. Concerning omission to explore possibility of provocation in the killing, the State submitted that this failure by the judge did not prejudice the appellant.

Held:

1. Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions:-

a) The intention to cause death

b) The intention to cause grievous bodily harm

c) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse.

2. Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not itself enough to convert a homicide into the crime of murder.

3. In the present appeal the Court feels uneasy at the insufficiency of the inquiry into the obvious land dispute that soured the relationship of the protagonists in this tragic incident. The Court therefore hesitates to uphold the appellant’s conviction for the offence of murder.

Appeal against conviction for murder allowed and substituted with conviction for manslaughter.

Cases

Nzuki, Michael Nzioka v Republic Criminal Appeal No 70 of 1991

Statutes

Penal Code (cap 63) sections 204, 205

Advocates

Mr Siganga for the Appellant

Mr Karanja for the State/Respondent

Lusenaka & another v Omocha

Court of Appeal, at Kisumu December 1, 1994

Omolo, Akiwumi & Tunoi JJ A

Civil Appeal No 134 of 1993

(Appeal from the judgment and decree of the High Court of Kenya at Kakamega (Mr Justice JLA Osiemo) dated 10th March, 1993 in Civil Case No 123 of 1987)

Land Law – adverse possession – respondent occupying land for twenty four years uninterrupted by the owner – whether owner can validly sell the land to a third party.

Land Law - Agriculture Act – Settlement Fund Trustees – whether land owned by SFT is Government land.

The respondent sued the 1st appellant seeking ownership of the suit land by virtue of adverse possession. He claimed that he had uninterrupted occupation of the land for a period of twenty four years during which he put up his home and planted coffee.

The 1st appellant however denied the respondent’s claim stating that he came into the land through a settlement fund after paying Kshs 302 for it and that the respondent was brought into the land by the area Chief.

It was argued on behalf of the 2nd appellant that the land belonged to the SFT hence the Government and no claim based on adverse possession could therefore lie. Besides, the cause of action if any was against the SFT and not the 2nd appellant who was a bona fide purchaser for value without notice.

The Court of Appeal noted that the 2nd appellant was registered as the owner of the suit land the next day after consent was given to his transaction with the first appellant.

Held:

1. The plaintiff had been in continuous and uninterrupted possession of the suit land since 1964 until 1987 when the same was subdivided. At this time, the plaintiff had acquired title to the suit land by adverse possession since for the last 24 years his possession was open and notorious.

2. Land owned by Settlement Fund Trustees (SFT) is not land owned by the Government. Under section 167(1) of the Agriculture Act, the SFT is a body corporate with a perpetual succession and can acquire and own property on its own right and can sue and be sued.

3. When the 1st appellant completed the repayment of the loan on the 9th May, 1986, the SFT signed a discharge of the charge. The land was formally transferred to the 1st appellant.

4. The first appellant had sufficient title in the land against which the respondent could acquire prescriptive rights through adverse possession and the matter between the 1st appellant and the respondent had nothing to do with the interest of the SFT in the disputed land.

5. The 2nd appellant claimed his title through the 1st appellant. He (the 2nd appellant) could not have acquired a title better than that of the 1st appellant and the truth of the matter is that the 1st appellant had no title to pass to anyone. His title having been extinguished by the respondent’s adverse possession.

Appeal dismissed.

Cases

Oredo, Boniface v Wabomba Mukile Civil Appeal No 170 of 1989

Statutes

1. Agriculture Act (cap 318) sections 167, 167(1); 175

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

3. Limitations of Actions Act (cap 22) sections 3, 41(a)(i)

Advocates

Mr Machio for the appellants

Ekaita v Republic

Court of Appeal, at Kisumu June 23, 1994

Gachuhi, Gicheru & Omolo JJ A

Criminal Appeal No 25 of 1994

(Appeal from a judgment of the High Court of Kenya at Kisumu  (Mr Justice JA Mango) dated 14th January, 1994 in  HCCR No 9 of 1992)

Criminal law – murder – malice aforethought – meaning of - accused assaulting the deceased for more than half an hour with a walking stick – no evidence led on the size of the stick – whether malice aforethought was established.

Criminal law - murder – assessors – summing up to the assessors – trial judge to record notes of the summing up.

The appellant was tried and convicted of murder and sentenced to death as authorized by law.

The evidence in support of his conviction was that he assaulted the deceased using a walking stick called “Kakamega stick” for more than half an hour. The deceased was arrested and put in his custody at the chief’s camp on suspicion of stock theft.

At the hearing of the appeal it was submitted on behalf of the appellant that before the alleged assault the deceased had been beaten by members of the public. It was therefore not clear whose assault was responsible for the deceased’s death.

The appellant further complained that failure by the trial judge to record notes of his summing up to the assessors amounted to miscarriage of justice.

The appellate court while dismissing the appellants’ contention over who was responsible for the fatal assault noted that no evidence was available or led as to the size of the so called “Kakamega stick” with some witnesses calling it a club while others, a walking stick.

Held:

1. Where an accused knows that there is a serious risk that death or grievious bodily harm will ensue from his acts, and he proceeds to

commit those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as a result of those acts constitutes malice aforethought.

2. From the evidence available before him, the beating had lasted over thirty minutes. The only snag was the absence of positive evidence as to the size of the appellant’s “Kakamega stick”.

3. In the absence of such evidence and finding, it remained a matter of guess whether or not the appellant knew that there was a serious risk that death or grievious bodily harm would ensue from his sustained assault on the deceased.

4. The possibility therefore that the appellant killed the deceased by a sustained unlawful assault but without the intent necessary to constitute malice requisite to the proof of the offence of murder contrary to section 204 of the Penal Code cannot be excluded.

5. It is desirable that the trial judge should sum upto the assessors and that when he does so, notes of the summing up should appear on the record of the proceedings.

Appeal allowed manslaughter substituted for murder.

Cases

1. Mukono v Uganda [1965] EA 491

2. Upar v Uganda [1971] EA 98

Statutes

Penal Code (cap 63) sections 204; 205; 206(b)

Advocates

Mr Wesa for the Appellant

Mr Karanja for the State/Respondent