Re Garnets Mining Co Ltd

High Court, at Nairobi 21st, 22nd December 1977, 20th January8th, 9th February 5th, 6th, 10th-12th, 14th , 17th-19th, 21st July, 23rd November 1978

Kneller J

Winding-up Cause No 12 of 1977

Winding-up – winding-up by Court – circumstances in which order may be made – just and equitable – criteria – loss of confidence in management – Companies Act (Cap 486), section 219(f).

Winding-up – winding-up by Court – petitioner – need for petitioner to come to Court with clean hands – petition relying on just and equitable ground.

Winding-up – winding-up by Court – circumstances in which order may be made – just and equitable – criteria – company a quasi-partnership – Companies Act (cap 486), section 219(f).

Whether or not a company should be wound up by the Court on the ground that it is just and equitable to wind it up under section 219(f) of the Companies Act is a matter of discretion. The court’s discretion in this respect is wide and must be exercised judicially. Each case depends on its own facts as they are at the time of the hearing; but, generally, where a petitioner can show that he has lost confidence in the management of the company because it has a lack of probity, the court’s discretion (in the absence of special circumstances) is likely to be exercised in his favour.

A petitioner seeking to rely on just and equitable grounds must approach the Court with clean hands.

Re Blériot Manufacturing Air Craft Co (1916) 32 TL R 253, Baird v Lees 1924 SC 83, Loch v John Blackwood Ltd [1924] AC 783, Davis & Co Ltd v Brunswick (Australia) Ltd [1936] 1 All ER 299, Re Straw Products Pty Ltd [1942] VLR 222, Re Fildes Bros Ltd [1970] 1 WLR 592, Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 and Cookson v Knowles [1978] 2 WLR 978 Applied.

Where a company is a quasi-partnership, even if all the creditors or shareholders are not entitled to participate in the conduct of the company’s business, the company may be wound up by the Court under section 219(f) of the Companies Act on the ground of its being just and equitable, in circumstances where it would be appropriate to dissolve a partnership; but this would not be the case where the cause of complaint arises from the valid exercise by the other members of their powers under the articles of association.

Symington v Symington’s Quarries Ltd 1905 8 F 121, Re Yenidje Tobacco Co Ltd [1916] 2 Ch 426, Loch v John Blackwood Ltd [1924] AC 783, Thomson v Drysdale 1925 SC 311, Tench v Tench Bros [1930] NZLR 403, Re Davis and Collett Ltd [1935] Ch 693, Re Cuthbert Cooper & Sons Ltd [1937] Ch 392, Re Straw Products Pty Ltd [1942] VLR 222 and Re Wondoflex Textiles Pty Ltd [1951] V L R 458 applied

Cases referred to in judgment:

1. A&BC Chewing Gum Ltd, Re [1975] 1 WLR 579, [1975] 1 All ER 1017.
2. Alexander v Automatic Telephone Co [1900] 2 Ch 56, 69 LJ Ch 428, 82 LT 400, CA.
3. Baird v Lees 1924 SC 83.
4. Bellador Silk Ltd, Re [1965] 1 All ER 667.
5. Bentley-Stevens v Jones [1974] 1 WLR 638, [1974] 2 All ER 653.
6. Blériot Manufacturing Air Craft Co, Re (1916) 32 TLR 253.
7. Busland v Earle [1902] AC 83.
8. Campbell v Rothwell (1877) 47 LJQ 144, 38 LT 33.
9. Charles Forte Investments Ltd v Amanda [1964] Ch 240, [1963] 3 WLR 662, [1963] 2 All ER 940, CA.
10. Chesterfield Catering Co Ltd, Re [1977] Ch 373, [1976] 3 WLR 879, [1976] 3 All ER 294.
11. Clemens v Clemens Bros [1976] 2 All E R 268.
12. Cohen, Re [1924] 2 Ch 515, 94 LJ Ch 73, CA.
13. Cookson v Knowles [1979] AC 556, [1978] 2 WLR 978, [1978] 2 All ER 604, HL.
14. Cumberland Holdings Ltd, Re [1976] 1 ACLR.
15. Cuthbert Cooper & Sons Ltd, Re [1937] Ch 392, [1937] 2 All ER 466.
16. Daniels v Daniels [1978] Ch 406, [1978] 2 WLR 73, [1978] 2 All ER 89.
17. Daslo-Stolan Mining & Financial Corporation Ltd, Re [1910] WN 13.
18. Davis & Co Ltd v Brunswick (Australia) Ltd [1936] 1 All ER 299, PC.
19. Davis and Collett Ltd, Re [1935] Ch 693, 104 L J Ch 340, 153 LT 329.
20. Davis Investments (East Ham) Ltd, Re [1961] 1 WLR 1396, [1961] 3 All ER 926, CA.
21. Diamond Fuel Co, Re (1879) 13 Ch D 400, 49 LJ Ch 301, 41 LT 779, CA.
22. Ebrahimi v Westbourne Galleries Ltd [1973] AC 360, [1972] 2 WLR 1289, [1972] 2 All ER 492, HL.
23. Expanded Plugs Ltd, Re [1966] 1 WLR 514, [1966] 1 All ER 887.
24. Fildes Bros Ltd, Re [1970] 1 WLR 592, [1970] 1 All ER 923.
25. Foss v Harbottle (1843) 2 Hare 461.
26. German Date Coffee Co, Re (1882) 20 Ch D 169, 51 LJ Ch 564, 46 LT 327, CA.
27. Gold Hill Mines, Re (1883) 23 Ch D 210, 49 LT 66, CA.
28. Hang (Sverre) v Buhemba Mines Ltd (1953) 20 EA CA 28.
29. Haven Gold Mining Co, Re (1882) 20 Ch D 151, 51 L J Ch 242, 42 LT 322, CA.
30. Hawken (S A) Ltd, Re [1950] 2 All E R 408.
31. Haycraft Gold Reduction and Mining Co, Re [1900] 2 Ch 230, 69 LJ Ch 497, 83 LT 166.
32. K/9 Meat Supplies (Guildford) Ltd, Re [1966] 1 WLR 1112, [1966] 3 All ER 320.
33. Kitson & Co Ltd, Re [1946] 1 All ER 435, CA.
34. Leadenhall General Hardware Stores Ltd, Re (1971) 115 SJ 202.
35. Lewis v Haas 1970 SLT (Notes) 67.
36. Loch v John Blackwood Ltd [1924] AC 783, 93 LJP C 257, 131 L T 719, PC.
37. London and Manchester Industrial Association, Re (1875) 1 Ch D 466.
38. London Suburban Bank, Re (1871) 6 Ch App 164, 40 LJ Ch 774.
39. Lundie Bros Ltd, Re [1965] 1 WLR 1051, [1965] 2 All ER 692.
40. Mason Bros Ltd, Re (1891) 12 NSW Eq 183.
41. Meyers v Cassidy (1913) 17 CLR 90, High Court of Australia.
42. Modern Retreading Co Ltd, Re [1962] EA 57, High Court of Tanzania.
43. Mohamed Mitha v Ibrahim Mitha [1967] EA 575, High Court of Uganda.
44. Mozley v Alston (1847) 1 Ph 790, 16 LJ Ch 217, 9 LTO S 97.
45. New Callao Ltd, Re (1882) 47 LT 175.
46. Newman and Howard Ltd, Re [1962] Ch 257, [1961] 3 WLR 192, [1961] 2 All ER 495.
47. North End Motels (Huntly) Ltd, Re [1976] NZLR 446.
48. Oakbank Oil Co v Crum (1882) 8 App Cas 65, 48 L T 537, H L.
49. Othery Construction Ltd, Re [1966] 1 WLR 69, [1966] 1 All ER 145.
50. Peruvian Amazon Co Ltd, Re (1913) 29 TLR 384.
51. Phillips v Manufacturers’ Securities Ltd (1917) 86 LJ Ch 305, 116 LT 290, CA.
52. Rhoprops Ltd, Ex parte; Re Piras Garden Properties (Pvt) Ltd 1953 (3) SA 630.
53. Rica Gold Washing Co, Re (1879) 11 Ch D 36, 40 Lt 531, CA.
54. Smith and Fawcett Ltd, Re [1942] Ch 304, [1942] 1 All ER 542, CA.
55. Spackman, Ex parte (1899) 1 Mac & G 170, 18 L J Ch 261, 13 LTOS 358, 41 ER 1229.
56. Straw Products Pty Ltd, Re [1942] VLR 222.
57. Suburban Hotel Co, Re (1867) 2 Ch App 737, 36 LJ Ch 710, 17 LT 22.
58. Symington v Symington’s Quarries Ltd 1905 8 F 121.
59. Taldua Rubber Co Ltd, Re [1946] 2 All ER 763.
60. Tench v Tench Bros [1930] NZLR 403.
61. Thomas Edward Brinsmead & Sons, Re [1897] 1 Ch 406, 66 L J Ch 290, 76 LT 100, CA.
62. Thomson v Drysdale1925 SC 311.
63. West Surrey Tanning Co, Re (1866) LR 2 Eq 737.
64. Wondoflex Textiles Pty Ltd, Re [1951] VLR 458.
65. Yenidje Tobacco Co Ltd, Re [1916] 2 Ch 426, 86 LJ Ch 1, 115 LT 530, CA.

Petition

Mrs Beth Wambui Mugo petitioned the Court in Winding-up Cause No 12 of 1977 to wind up Garnets Mining Co Ltd. The company opposed the petition. In the course of his judgment, Kneller J described the petitioner as the daughter of Mr James Muigai, the brother of the late President Kenyatta. She was married to Mr Nicholas Mugo, the Ambassador to Ethiopia and later to various countries in Europe.

Advocates

P Le Pelley and KA Fraser for the Petitioner.

PK Muite for Garnets.

Cur adv vult.

Joseph Wangangu v The Republic

Kamau Macharia v The Republic

High Court, Appellate Side, Nairobi 20th December 1977

Trevelyan & Todd JJ

Theft - robbery - use of actual violence - meaning of “actual violence” - victim pushed and tied up - Penal Code (cap 63), section 295.

In section 295 of the Penal Code, which defined the offence of robbery, the expression “actual violence” means any unjustifiable force. Hence the pushing of a victim and tying him up constitutes the use of actual violence to him.

R v Carney (1922) 18th December (unreported), R v Harrison (1930) 22 Cr App Rep 82, R v Desmond [1965] AC 960 and Gathuri Njuguna v The Republic (unreported) considered.

Cases referred to in judgment:

Gathuri Njuguna v The Republic (unreported) Criminal Appeal No 526 of 1965, High Court.

Okethi Okale v The Republic [1965] EA 555, EACA.

R v Carney (1922) 18th December (unreported) CCA.

R v Desmond [1965] AC 960, [1965] 2 WLR 894; [965] 1 All ER 976, HL.

R v Harrison (1930) 22 Cr App Rep 82, CCA.

R v Israili Epuku s/o Achietu (1934) 1 EACA 166.

Solomon Mungai v The Republic [1965] EA 782, EACA.

Appeals

Joseph Wangangu and Kamau Macharia appealed against their convictions for robbery (Criminal Appeal Nos 659 and 693 of 1977) by the Resident Magistrate at Kiambu in Criminal Case No 239 of 1977. Kamau Macharia also appealed against an order of forfeiture made in respect of the vehicle used in connection with the offence. The facts are set out in judgment of the court.

SM Otieno for the Appellant Kamau Macharia.

Mrs S Chana State counsel for the Republic.

East African Power and Lighting Co Ltd v The

Attorney-General

High Court, at Nairobi 24th, 25th. 26th, 27th, 31st October;

Muli J 1st, 2nd November; 16th December 1977

Landlord and tenant - agreement for lease - entry into possession following agreement - nature of tenancy following entry and payment of rent - monthly tenancy or tenancy at will - essential elements of lease not agreed - Transfer of Property Act (India ), section 106.

Where a prospective tenant is permitted to occupy premises in anticipation of the execution of a formal lease but all the essential elements of the lease have not been agreed, section 106 of the Transfer of the Property Act (India) has no application and, even though the prospective tenant may pay rent, the relationship between the parties is that of a tenancy at will.

Rogan Kamper v Lord Grosvenor (No 2 ), page 123, ante, distinguished.

Cases referred to in judgment:

Birsingh v Khetia [1967] EA 741, High Court of Tanzania.

Rogan Kamper v Lord Grosvenor (No 2 ), page 123, ante.

Walsh v Lonsdsale (1882) 21 Ch D 9, CA.

Action

The East African Power and Lighting Co Ltd instituted proceedings against the Attorney-General (Civil Case No 2687 of 1975 ) representing the National Social Security Fund in which it claimed rent, car-parking and service charges, excess rates and the costs of redecoration of premises occupied by the National Social Security Fund. The facts are set out in the judgment.

KA Fraser (instructed by Messrs Hamilton, Harrison & Mathews) for the Plaintiff.

MM Ole Keiwua State counsel for the Attorney General.

Cur adv vult.

Karibu House (1973) Ltd v Travel Bureau Ltd

High Court, Nairobi

14th December 1977

Kneller and Chesoni JJ

Civil Appeal No 60 of 1976

Appeal – jurisdiction of appellate tribunal – allowing appeal – circumstances in which appeal may be allowed – appeal from Business Premises Rent Tribunal.

On an appeal from the Business Premises Rent Tribunal the High Court is obliged to deal with all the material before it, balancing that for one party against that for the other, and paying due regard to the decision against which the appeal is brought. Unless it is established to the satisfaction of the appellate court that the tribunal has erred by mistake in law, by disregarding principle, by misapprehending fact, by considering irrelevant matters, by failing to exercise a discretion, by employing an obviously unjust method, by disregarding relevant matters, or by paying undue regard to some factors and not enough to others (or some combination of these points), there are no grounds on which it can properly interfere with the decision of the tribunal.

Dictum of Edmund Davies LJ in Sagnata Investments Ltd v Norwich Corporation [1971] 2 All ER 1441, 1457, applied

Cases referred to in judgment:

1. Bosworth, The [1960] 1 Lloyd’s Rep 173, England CA.
2. Kay (John) Ltd v Kay [1952] 2 QB 258, [1952] 1 All ER 1813, England CA.
3. Mbuni Drycleaners Ltd v Barclays Bank DCO [1972] EA 188 Wicks and Chanan Sigh JJ.
4. Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614; [1971] 3 WLR 133, [1971] 2 All 1441, England CA.

Appeal

Karibu House (1973) Ltd appealed to the High Court (Civil Appeal No 60 of 1976) against the decision of the Business Premises Rent Tribunal at Nairobi on 16th June 1975 in which the respondent to the appeal, Travel Bureau Ltd, was ordered to pay Shs 4000 rent to the appellant for premises which it occupied in Nairobi.

Advocates

DH Khanna for the Appellant.

VM Patel for the Respondent.

The Republic v Director-General of East African

Railways Corporation, Ex parte Kaggwa

High Court, Nairobi 14th, 16th, 22nd November 1977

Chesoni J

Judicial review - mandamus - application for order for payment of  judgment debt - damages for wrongful dismissal by East African Railways - application for mandamus to compel Director-General of Railways Corporation to make payment - no person holding office.

Judicial review - mandamus - discretion - bars to exercise of discretion - alternative remedy - judgment debt owed by East African Railways - assets of railways in custodial possession - committee appointed by Government to consider future - possibility of satisfaction of judgment debt by committee or in winding-up of railways.

Judicial review - mandamus - discretion - bars to exercise of discretion - ineffectiveness of order - judgment debt owed by East African Railways - railways without funds to meet debt - no holder of office empowered to make payment - East African Railways Act (Laws of East African Community, cap 18 ), section 91.

Judicial review - mandamus - discretion – bars to exercise of discretion - judicial interference with executive.

The East African Railways Corporation was established by the three partner States of the East African Community. It was funded by the regions directly; but for some years the regions had failed to remit funds and in 1976 the corporations’ current bank account was substantially in debit. One of the corporation’s employees, the applicant, was dismissed in that year (his dismissal being in no way connected with the financial position at the time) and in 1977 he obtained a judgment for wrongful termination of employment against the corporation for Shs 146,000 plus costs and interests. Following the judgment the applicants advocate wrote to the Director-General of the corporation (as the officer empowered by the East African Railway Corporation Act, section 91, to pay any judgment debt) seeking payment. His letter was returned by the managing director of Kenya Railways stating that the whereabouts of the addressee were not known to him. The managing director of Kenya Railways had, in 1975, been appointed as Director-General of the corporation, but had declined to accept the position; instead he had been acting Director-General until 1977 when he took up his position with the Kenya Railways and vacated the position of Director-General of the corporation; since then, to the best of his knowledge, there had been no fresh appointment to the position of Director-General. The applicant maintained that both the corporation and its Director-General were still de jure in existence, although the corporation’s assets in Kenya had been taken into the custodial possession of the Kenya Government and a committee had been formed to discuss and deal with the assets and liabilities of the former East African Community and its institutions and corporations; unless the applicant could obtain satisfaction for his judgment soon, he might be deprived of his fruits. He therefore applied for an order of mandamus against the Director -General for the payment of his judgment debts and taxed costs, and for the attachment and sale of the corporation’s property in execution.

Held:

Refusing the application, that mandamus did not lie as a matter of course against a public officer and the court discretion would be exercised against the applicant because (1) there being no person de facto in the office of the Director-General, it could not properly be said that there had been a failure or refusal by the Director-General to perform a public duty; (ii) the applicant had an alternative remedy by seeking satisfaction either from the committee or in any eventual winding up of the corporation; (iii) without there being de facto a Director-General of the corporation there could be no adequate supervision of an order by the Court and, as the corporation was without funds, any order to make payment would be ineffective; and (iv) where, as here, there were bars on the exercise of the courts discretion to make an order of mandamus, although the bars were not absolute, the exercise of that discretion in favour of the applicant would constitute judicial interference with the executive arm of the Government.

Re Bristol and North Somerset Railway Co (1877) 3 QBD 10, R v Sarun (Bishop) [1916] 1 KB 466 and R v Dunsheath, ex parte Meredith [1950] 2 All ER 741 applied.

Shah v Attorney-General (Uganda) (No 3) [1970] EA 543 distinguished.

Cases referred to in judgment:

Bristol and North Somerset Railway Co (1877) 3 QBD 10; 47 LJQB 48; 37 LT 527.

Kaggwa v East African Railway Corporation (unreported), 11th August 1977, Kneller J (Civil Case No 2231 of 1976).

R v Dunsheath, ex parte Meredith [1951] 1 KB 127; [1950] 2 All ER 741.

R v Sarum (Bishop) [1916] 1 KB 466; [1914-15] All ER Rep 946; 85 LJKB 544; 114 LT 366.

Shah v Attorney General (Uganda) (No 3 ) [1970] EA 543.

Motion

George Nume Kaggwa applied to the High Court (Miscellaneous Civil Case No 209 of 1977) by leave granted on 21st September 1977 for an order of mandamus against the Director-General of East African Railways Corporation to enforce a judgment. The facts are set out in the judgment.

RK Mitra for Applicant.

JF Shields Principal State counsel and Mrs Onyango State counsel for the Respondent.

Wakitata v The Republic

High Court, Appellate Side, Nairobi 10th October 1977

Sir James Wicks CJ & Sachdeva J

Criminal law - sentence - imprisonment in default of payment of fine -omnibus sentence in default - whether necessary to impose separate default sentence for each fine.

Wildlife - conservation - certificate of ownership - possession of game trophy without certificate - penalty- forfeiture - Wildlife (Conservational and Management) Act (cap 376), section 39 (1) (d), 42(1) (b).

Where a Court imposes separate fines for individual offences it cannot impose an omnibus default sentence of imprisonment but must indicate a separate default sentence for each fine in the event of its non-payment.

Although there is no power to order forfeiture for an offence of possession of game trophies without a certificate of ownership (under section 42 (1) (b) of the Wildlife (Conservation and Management) Act), the animal or trophy automatically becomes Government property by virtue of section 39(1)(d).

Cases referred to in judgment:

Hassan v The Republic [1975] EA 221, EACA.

Republic, The v Ofunya [1970] EA 78.

Shikwaya v The Republic [1970] EA 399.

Appeal

Thomas Wakitata appealed to the High Court (Criminal Appeal No 494 of 1977) against conviction and sentence by Mrs M Price in the Resident Magistrate’s Court, Nairobi, in Criminal Case No 4042 of 1976, on two counts of being in possession of game trophies without a certificate of ownership, contrary to section 42(1)(b) of the Wildlife (Conservation and Management) Act. The facts are set out in the judgment of the court.

The appellant did not appear and was not represented.

AR Rebelo senior State counsel for the Republic.

Muchoki Irima v The Republic

Musyoka Kamuti v The Republic

Marimum Muriu v The Republic

High Court, Appellate Side, Nairobi 30th September; 5th October 1977

Sir James Wicks CJ & Sachdeva J

Criminal appeal - petition - grounds of appeal - specification of particulars - inadequacy of grounds expressed in general terms - incorrect use of term “memorandum of appeal” - Criminal Procedure Code (cap 75), section 350(1), (2).

The term “memorandum of appeal” should not be used in connection with an appeal under the Criminal Procedure Code, section 350(1), which requires an appeal to be made in the form of a petition in writing.

The requirement that every petition of appeal should contain particulars of the matters of law or fact in regard to which the subordinate court appealed from is alleged to have erred (section 350 (2)) is not satisfied by drafting grounds of appeal in general terms, for example that the prosecution has not proved its case beyond reasonable doubt or that the prosecution has not proved all the essential elements of the charge.

Mutemba s/o Rutehenda v R (1953) 20 EACA 276 applied.

R v McNair (1909) 2 Cr App Rep 2, R v Simpson (1909) 2 Cr App Rep

128, Aladesura v R [1956] AC 49, PC, Riano s/o Lenalaimer [1960] EA 1960, EACA and Osongo v The Republic [1972] EA 170, EACA, considered.

Cases referred to in judgment:

Aladesura v R [1956] AC 49, [1955] 3 WLR 515, 39 Cr App Rep 184, PC.

Mutemba s/o Rutehenda v R (1953) 20 EACA 276.

Okeno v The Republic [1972] EA 32, EACA.

Osongo v The Republic [1972] EA 170, EACA.

R v McNair (1909) 2 Cr App Rep 2; 25 TLR 228.

R v Simpson (1909) 2 Cr App Rep 128.

Riano s/o Lenalaimer v R [1960] EA 1960] EACA

Appeals

The appeals of Muchoki Irima (Criminal Appeal No 495 of 1977), Musyoka Kamuti (Criminal Appeal No 496 of 1977) and Marimum Muriu (Criminal Appeal No 497 of 1977) from their convictions for stock-theft in the Resident Magistrate’s Court, Kitui were consolidated. When the appeals came on for hearing on 30th September 1977, the High Court quashed the convictions and substituted convictions for simple theft. The Court, however, reserved its reasons. The facts are set out in the judgment of the court.

Ndeto Mututo for the Appellant.

AR Rebelo senior State counsel for the Republic.

Cur adv vult.

M v M

High Court, Nairobi 9th June; 27th September 1977

Simpson J

Order - defiance of court order - consequence of defiance - party in contempt of court - whether party able to make application to Court in related matter.

Case referred to in judgment:

Hadkinson v Hadkinson [1952] P 285; [1925] 2 All ER 567, CA.

Chamber summons

The attorney of S B H M applied to set aside an award of an arbitrator in favour of F B S M in Miscellaneous Civil Case No 219 of 1976. The facts are set out in the judgment.

BJ Robson (instructed by Robson, Harris & Co) for the Applicant

Satish Gautama for the Respondent.

Cur adv vult.

The Republic v Wahome

High Court, Appellate Side, Nairobi 27th July 1977

Kneller & Sachdeva JJ

Traffic - notice of intended prosecution - ineffective notice - onus of proof - adequacy of description of place in notice - Traffic Act (cap 403), section 50.

The respondent was driving a motor vehicle on 17th July 1976 and was alleged to have caused the death of another by his driving. He was served with a notice of intended prosecution alleging that the accident had occurred on the “Juja road”, a road some ten miles long. He appeared in Court on 20th July and pleaded not guilty to a charge of causing death by dangerous driving. His trial was fixed for 30th August, when the magistrate, allowed a plea that the notice of intended prosecution was invalid (in that it did not adequately describe the place of the accident) to be tried as a preliminary issue. The magistrate upheld the plea and acquitted the respondent. On appeal by the Republic,

Held:

Allowing the appeal

(1) That as section 50(c)(ii) of the Traffic Act placed the burden of proving that the notice of intended prosecution was invalid on the respondent, this issue should not have been tried as a preliminary point of law.

Greene v R [1970] E A 62, EACA, followed.

(2) That, bearing in mind that a person had been killed and that the respondent had been brought to Court within three days, the place of the accident was adequately described in the notice; and, furthermore, the notice itself was intended merely to give warning to the respondent and did not form the basis of a conviction.

Ndungu Mwaura v The Republic [1976] Kenya LR 214 considered.

Young v Day (1959) 123 JP 317 distinguished.

Cases referred to in judgment:

Attorney General v Husein Mohamed (unreported) Mombasa Criminal Appeal No 12 of 1974.

Beresford v St Albans’Justices (1905) 22 TLR 1.

Goody v Fletcher [1962] Crim LR 324.

Greene v The Republic [1970] EA 62, High Court and EACA.

Hunter (GR) v R [1957] EA 561.

Milner v Allen [1933] 1 KB 698; 102 LJKB 395; 149 LT 16.

Ndungu Mwaura v The Republic [1976] Kenya LR 214.

Pope v Clark [1953] 1 WLR 1060; [1953] 2 All ER 704; 37 Cr App Rep 141.

Venn v Morgan [1949] 2 All ER 562; [1949] WN 353; 65 TLR 571.

Young v Day (1959) 123 JP 317.

Appeal

The Republic appealed to the High Court (Criminal Appeal No 966 of 1976) from an acquittal of Francis Wahome, the respondent on charges under section 46 and 55 (1) of the Traffic Act after a magistrate on a preliminary point of law had ruled in Traffic Case T 14065 that a notice of intended prosecution was ineffective. The facts are set out in the judgment of the court.

CM Gathenji State Counsel for the Republic.

RS Sehmi for the Respondent.

High Court, Appellate side, Nairobi 12th July 1977

Kneller & Sachdeva JJ

Criminal law - trial – plea of guilty - unequivocal plea - duty of Court to ensure plea unequivocal - recording of verdict - Criminal Procedure Code (cap 75), section 207(2).

Section 207(2) of the Criminal Procedure Code empowers the Court to convict a defendant who admits the truth of the charge. The following proviso was added to section 207(2) by the Statute Law (Miscellaneous Amendments) Act 1974: “Provided that after such conviction and before passing sentence or making an order the Court may permit or require the complainant to outline to the Court the facts upon which the charges is founded.”

On a plea of guilty being received the Court, notwithstanding the proviso to section 207(2) of the Criminal Procedure Code, should ensure that the defendant wished to admit without any qualification each and every essential ingredient of the charge, especially if he is not asked to admit or deny the facts outlined by the prosecutor.

Adan v The Republic [1973] EA 445, EACA, and Lebiringin v The Republic [1974] EA 103 considered.

Observation on the form in which pleas of guilty should be recorded.

Cases referred to in judgment:

Adan v The Republic [1973] EA 445, EACA.

Desai v The Republic [1971] EA 542, EACA.

Kato v The Republic [1971] EA 416, EACA.

Lebiringini v The Republic [1974] EA 103.

Appeal

Charles Lusiti appealed to the High Court (Criminal Appeal No 319 of 1971) against his conviction and sentence by FG Hiuhu Esq in the Resident Magistrate’s Court, Nairobi (Criminal Case No 708 of 1977) for burglary and theft.

The appellant did not appear and was not represented.

Mrs S Chana State counsel for the Republic.