[Ruling] – BANKRUPTCY LAW – discharge – application for discharge – where the creditors claim that their debts have not been fully realized effect of – factors the court considers in such applications – validity of order

Election petition – petition seeking nullification of election on grounds that the 1st respondent organised and administered traditional oaths on the 2nd respondent  -  whether the effect of the Kibukusu oath( “khulia silulu”) was to bind voters by bringing a curse on anyone who took it and did not vote for the 2nd respondent - whether the administration of traditional oath constitutes an election offence – whether the 2^nd Respondent was guilty of having committed the election offence of undue influence– whether the election results ought to be nullified - the Election Offences Act (cap 66 laws of Kenya) section 9.

[Ruling] Company Law-winding up cause-preliminary objection to the validity of the petition itself-grounds that the petition was not signed by a director of the company on behalf of the director and that signature by an advocate for the petitioner is not good enough to validate the petition-effects of-factors the court considers in such applications-whether it was necessary for the petitioner to sign the petition

TORT – negligence – plaintiff filed suit as the administratrix of the estate of the deceased – where the deceased, an advocate, was involved in a fatal road accident-where the deceased left behind dependants among them a wife– loss of future earnings – assessment of liability – determination of the proper multiplicand and multiplier to use in assessing loss of earnings - quantum of damages- judgment for the plaintiff against the defendants jointly and severally for Kshs. 2,952,403.20 as general damages - Fatal Accidents Act, Law Reform Act

Mehta v Republic

High Court, at Nairobi August 12, 1994

Mwera J

Miscellaneous Criminal Revision No 54 of 1994

(From original order in Criminal Case No 3591 of 1992 of Principal Magistrate’s Court at Nairobi)

Criminal Practice and Procedure – trial – calling of witnesses after the close of defence case – whether a magistrate has power to order for calling of more witnesses – Criminal Procedure Code (cap 75) section 150.

This was an application referring to the Chief Magistrate Case No 3591/1992 in which the applicant Joginder Singh Mehta stood trial before the Principal Magistrate Mrs J Lesiit for manslaughter.

It stated that the learned trial magistrate heard all the evidence from the prosecution as well as the defence. After the final submissions were filed and judgment set down for delivery, on that day the magistrate did not deliver judgment. Instead she stated that it was unjust for him to decide the case without calling for more expert witnesses to give evidence on issues that were essential to the case by invoking the provisions of section 150 of the Criminal Procedure Code (cap 75).

Held:

1. Section 150 of Criminal Procedure Code gives a wide discretion to a trial magistrate when it comes to calling witnesses to assist in a just trial of a case, but the emphasis of applying this legal provision is more to do with the way the prosecution places its case before the Court.

2. Although this section appears not only to give a wide discretion to a magistrate in calling any witness but also to make it mandatory on him to call or recall any person whose evidence appears to be essential to the just decision of the case, the Courts repeatedly held that a judge should not call a witness in criminal trial after the case for the defence is closed.

3. Where a reasonable doubt appears at the time of composing a judgment, the same need to be resolved in favour of the accused person. No steps should be taken by the Court to appear as if it is seeking further aids to resolve the doubt at all.

Appeal allowed.

Cases

1. Fitalis Ogure s/o Oliech v Rex [1950] 24 KLR 79

2. Oloro s/o Daitayi & others v Reginam (1955) 24 EACA 493

3. Omari s/o Ramadhani v R [1962] EA 486

Statutes

Criminal Procedure Code (cap 75) sections 160, 362, 364

Advocates

Mr Ojiambo for the Applicant

In Re Estate of Ochieng (Deceased)

High Court, at Nairobi August 4, 1994

Ong’udi J

Succession Cause No 881 of 1993

Succession – letters of administration – where deceased was married under the Marriage Act – where one petitions for grant of letters of administration by not disclosing material facts – whether letters of administration granted should be nullified.

A marriage certificate No 29947, showed that Daniel Edwin Ochieng, then 30 years old, married Margaret Juma Odhiambo, then 29 years. On 30th January 1993 Daniel died. Upon his death, the respondents petitioned for grant of letters of administration without including the applicant as a beneficiary to the estate. The persons who did not object to the grant were:

(a) Dora Amelea Awino

(b) John Samuel Okoth

(c) Janet Auma

(d) Joseph David Ouma

The applicant further alleged that there were two issues of the marriage, and only one was mentioned as the beneficiary. She therefore sought a nullification of the grant on the ground that it was obtained fraudulently by making a false statement or by concealment of something material to the case. It was contended on behalf of the respondents that the applicant, by her own conduct, did not qualify as a beneficiary of the estate, since she had removed herself from the matrimonial house in January 1991 and was away till the death of her husband.

Held:

1. Any person married under the Marriage Act has no capacity to contract a valid marriage under any native law or custom.

2. The deceased had no capacity to contract any other marriage during the subsistance of his marriage to the applicant.

3. The respondents acted fraudulently to the Deputy Registrar of the High Court by not disclosing a material fact of great importance ie that the deceased was survived by a legal wife.

Application allowed.

Cases

No cases referred to.

Statutes

1. Law of Succession Act (cap 160) section 76

2. Marriage Act (cap 150) section 37

Advocates

Mrs Adul for the Respondents

Republic v Njiraini

High Court, at Nairobi July 27, 1994

Oguk J

Criminal Appeal No 1500 of 1993

(From original conviction and sentence in Criminal Case No 5171 of 1990  of the Resident Magistrate’s Court at Nairobi: C Mwangi (Miss)

Evidence – standard of proof – where doubt is cast on the evidence of the prosecution – whether the accused should be given the benefit of doubt – whether the prosecution can be said to have proved the case beyond any reasonable doubt.

The accused had been charged with forgery contrary to section 349 of the Penal Code and uttering false document contrary to section 353 of the Penal Code and stealing contrary to section 275 of the Penal Code. He was acquitted, hence this appeal by the State.

The respondent was KPCU Depot Manager at Sagana, at the material time, working under Mr Mathew Silvanus Nasibu (PW3) who was the KPCU manager. The respondent is said to have sought authority from PW3, in April 1990 to tarmac the compound of the depot and cleaning of sewage system etc. He subsequently submitted receipts and vouchers. He was paid. Audit reports were subsequently raised and the authenticity of receipts conducted and found to have been dishonestly made. Accused was arrested and prosecuted.

The respondent however did not dispute that all documents originated from his depot, but claimed that as Depot Manager he did not deal directly with suppliers. That the work had been contracted to one Mr Muhia, who was however called to give evidence, but did not do so. Hence the lower court was left in doubt whether accused did commit any of the charges.

Held:

1. The fact that Muhia never gave evidence left room for doubt as to whether the accused acted with intent to steal from his employer or not.

2. The charges as laid against the respondent were not proved beyond all reasonable doubts.

Appeal rejected.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 275, 349, 353

2. Criminal Procedure Code (cap 75) section 150

Advocates

Mr Musau for the State/Appellant

Mr Mwiti for the Respondent

Kibebe v Republic

High Court, at Nairobi July 26, 1994

Oguk J

Criminal Appeal No 1209 of 1993

(From original conviction and sentence in Criminal Case No 6248 of 1990 of the Chief Magistrate’s Court at Nairobi: E B Achieng Esq)

Criminal Practice and Procedure – theft – proof of – where there’s dispute as to who is entitled to the money – where a charge against one is not proved beyond reasonable doubt – whether conviction should stand.

The appellant Danson Methu Kibebe was convicted after trial by learned Chief Magistrate, Nairobi of the offence of stealing contrary to section 275 of the Penal Code. He was alleged to have stolen Shs 888,282/50, the property of Geoffrey Muthogo Kamachiri, convicted and sentenced to serve 6 months imprisonment, hence this appeal.

The dispute between them arose out of partnership. They were both engaged in the business of supplying various equipment to government departments. The Government defaulted in paying and they both sued the Government. It is alleged that the complainant however withdrew from the partnership before the conclusion of the case. The appellant then registered the business as sole proprietorship. Eventually the appellant won the case and was compensated by the Government. The complainant demanded 50% share of the proceeds but the appellant refused stating that he had opted (the complainant) out of partnership so he was not entitled to anything.

Held:

1. The charge laid against the accused was not proved beyond reasonable doubt.

2. The alleged theft was not proved as the appellant adduced evidence showing that he was entitled to the money.

3. The complainant’s claim against the appellant was in the nature of a civil claim which ought to have been pursued in the civil Court.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 275

Advocates

Mr Ndungu Nunu for the Appellant

Mrs Ondieki for the State/Respondent

Malonza v Republic

High Court, at Nairobi July 18, 1994

Oguk J

Criminal Appeal No 1516 of 1993

(From original conviction and sentence in Criminal Case No 1982 of 1993 of the Resident Magistrate’s Court at Nairobi; G Nzioka (Mrs))

Evidence – corroboration – need for – evidence of a 15 year old boy – whether evidence of such a witness needs corroboration.

The appellant and two others were jointly convicted of the offence of store breaking and stealing contrary to sections 306 (a) and 279 (b) of the Penal Code. Upon his conviction he was sentenced to serve 12 months imprisonment with one stroke corporal punishment on each limb to run concurrently, hence this appeal.

There was no dispute that the complainants shop had been broken into, but the appellant was not found in possession of stolen goods. They were however convicted on the basis of evidence of a 15 year old boy which was not corroborated.

Held:

1. The evidence of the young boy (PW2) needed corroboration.

2. It was not safe to act on the evidence of the young boy (PW2) and convict on it in the absence of corroboration.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 279(b); and 306(a)

Advocates

Mr Lubulellah for the Appellant

Mr Musau (State Counsel) for the State/Respondent