Kanyoko t/a Amigos Bar & Restaurant v Nderu & 2 others

Court of Appeal, at Nakuru

October 21, 1988

Nyarangi, Gachuhi & Apaloo JJA

Civil Appeal No 142 of 1987

(Appeal from a Ruling and Order of the High Court at Nakuru, Tunoi Ag J)

Civil Practice and Procedure – attachment before judgment – matters the court should consider before ordering such attachment – applicant acting mala fides and out of malice – court failing to consider alternative offer of security made by respondent – whether order of attachment proper - Civil Procedure Rules order XXXVIII rule 5.

The respondents/landlords brought an action in the High Court against the appellant/tenant claiming, among other relief, payment of the increased rent of the premises. The appellant denied that he had been served with the statutory notice of increase of rent.

The respondents moved the court under the Civil Procedure Rules order 38 rules 5 and 12 for attachment of the appellant’s property before judgment. The application was made ex parte and without notice to the appellant. In supporting the application, the 1st respondent swore that the he had been informed that the appellant was about to abscond and that he had disposed or removed a number of his properties. The attachment order was granted and executed.

Upon the appellant’s application, the order was set aside and the appellant proceeded to show cause why he should not furnish security. He swore that the information given by the 1st respondent was false and gave evidence to show that he was in a position to pay any judgment that could be given against him. The 1st respondent on the other hand re-iterated his information.

The court ordered the attachment of the moveable properties of the appellant and the payment by him of the broker’s charges.

Held:

1. The burden of showing that the appellant had disposed of his properties or removed them from the court’s jurisdiction or was about to abscond in either case with the object of defeating any decree that may be passed against him lay on the respondents.

2. The power to attach is not to be exercised lightly without proof of the mischief aimed and vague allegations are insufficient. The appellant’s allegations that the appellant was about to abscond were vague and there was no proof that the appellant was minded of committing the mischief of disposing his properties.

3. The facts deponed to by the appellant were weightier than the bare hearsay information related by the 1st respondent and on balance, the weight of the affidavit evidence tilted in the appellant’s favour. In any event, the appellant had offered to provide security, the sufficiency of which the judge failed to even consider.

4. An applicant for attachment before judgment must act bona fide. There was evidence that the respondent had acted unreasonably and maliciously in attaching the appellant’s property.

5. Courts should be extremely slow in ordering attachment of a defendant’s property before judgment not only because it is hardly consistent with justice to exact punishment but also because of the time-consuming process of the courts, the rights and liabilities of the parties may not be determined for a long time.

6. The attachment of the appellant’s property was wrongly granted and the respondent, not the appellant, was to be liable for the broker’s charges

and fees.

Appeal allowed.

Cases

1. Ndirangu v Abdallah [1984] KLR 746

2. Mareva Compagnie Naviera v International Bulk Carriers [1975] 2 Lloyds Rep 509; 1 All ER 213

3. Lister & Co v Stubbs (1890) 45 Ch 1

4. Ndungu v Mbugua & another Civil Appeal No 112 of 1984 (unreported)

5. Meru Farmers Co-operative Union v Suleiman (No 2) [1966] EA 442

Texts

Mulla on the Code of Civil Procedure 18th Edn

Statutes

1. Landlord and Tenant (Shops, Hotels & Caterign Establishments) Act (cap 301) sections 2, 4

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXVIII rules 5,12; order XXXIX

3. Code of Civil Procedure [India]

Moses Kamau Waweru v Republic

Court of Appeal at Nakuru

October 18, 988

Nyarangi, Gachuhi JJA & Masime Ag JA

Criminal Appeal No 53 of 1988

(Appeal from a judgment of the High Court at Nakuru, Tunoi Ag J)

Criminal Law – rape – attempted rape –Penal Code (cap 63) section 141 – corroboration of complainant’s evidence - whether the distressed condition of the complainant in reporting the offence amounts to corroboration.

The appellant was convicted and sentenced for the offence of attempted rape and his appeal to the High Court was dismissed.

Evidence had been given that the offence was committed at the complainant’s lodging quarters at a hotel after which the complainant had ran away naked to the house of a manager who took her to the police and then to hospital.

A doctor who examined the complainant gave evidence that she had bruises and scratches on her neck and arm and a raptured hymen. However, a vagina swab taken from was not found to have any semen.

The appellant’s appeal to the Court of Appeal was mainly on the ground that there had been no sufficient corroboration of the complainant’s evidence.

Held:

1. The distressed condition of a complainant is quite clearly capable of amounting to corroboration. However, the circumstances will vary and in some circumstances, little weight, if any, can be attached to such evidence as corroboration.

2. The condition in which the appellant had appeared at the manager’s house naked, distressed, terrified and reported to him how she had been attacked by the appellant was not only the evidence of consistency.

The manager gave evidence that he had seen bruises on the complainant’s body. All that was sufficient evidence of corroboration of the complainant’s evidence.

3. The injuries were also capable of displacing the suggestion that the complainant had consented to making love with the appellant.

4. There were concurrent findings by the lower courts of the physical stature of the appellant which explained the complainant’s evidence that she had complied with the appellant’s commands out of fear of imminent danger. Moreover, there was corroboration in the evidence of the doctor on her findings when she examined the complainant.

5. The appellant had been rightly convicted.

Appeal dismissed.

Cases

1. Kibazo v Uganda [1965] EA 507

2. R v Zielinski (1950) 34 Cr App R 193; 49 LGR 45; [1950] 2 All ER

1114

3. R v Redpath (1962) 46 Cr App R 319; 106 SJ 412

Statutes

1. Penal Code (cap 63) section 141

2. Evidence Act (cap 80) section 77

Advocates

Mr Mungai for the Appellant.

Cases

Rogan-Kamper v Lord Grosvenor [1977] KLR 123

Statutes

Landlord and Tenant (Shops, Hotels & Catering Establishments) Act (cap 301) section 6

Cheruiyot v Bartiony

Court of Appeal, at Nakuru

May 20, 1988

Platt, Apaloo JJA & Masime Ag JA

Civil Appeal No 79 of 1986

(Appeal from a judgment of the High Court at Eldoret, VV Patel J)

Civil Practice and Procedure – counterclaim – respondent’s counterclaim for eviction of appellant dismissed at first instance – appellate court declaring respondent as the rightful title-holder of the land – appellate court overlooking the dismissal of the counterclaim and failing to order the eviction of the appellant – whether respondent entitled to eviction notwithstanding the dismissal of his counterclaim.

Land law – title to land – right of a title-holder to exclusive possession of his land–– whether such right absolute–– appellant entering into possession of respondent’s land pursuant to sale agreement – court declaring sale void and affirming the respondent as the rightful title-holder of land – court omitting to order eviction of the appellant – whether titleholder entitled to possession.

The appellant had moved into possession of the respondent’s land on account of a sale agreement and he filed a suit in a magistrate’s court seeking an order to transfer the title to his name. The respondent in turn filed a counterclaim for the eviction of the appellant. The court found in favour of the appellant and dismissed the respondent’s counterclaim. The title was accordingly transferred to the appellant’s name.

The High Court, on finding that the sale was void, allowed the respondent’s appeal and the title was re-transferred to the respondent. The High Court, however, did not consider the dismissed counterclaim and it did not order the eviction of the appellant, who remained in exclusive possession of the land.

In order to gain possession, the respondent applied by an ex parte chamber summons in a magistrate’s court for the eviction of the appellant. Having read the High Court’s judgment, the magistrate ordered the eviction and later dismissed the appellant’s application to set aside the order.

The appellant appealed to the High Court arguing that since the respondent’s counterclaim for eviction had been dismissed by the court of first instance and that dismissal was never set aside by the High Court on appeal, the order of eviction was wrong. The High Court rejected this argument and dismissed the appeal. The appellant appealed further to the Court of Appeal.

Held:

1. As the validity of the sale was the only basis the appellant had put up for his continued occupation of the land, it would have been legitimate for the High Court, on finding that the sale was invalid, to order the appellant’s eviction from the land as a consequential relief.

2. As the High Court held that the sale was void and that the respondent was the legal owner of the land, the result was that the appellant had no extant right to the land which he could validly assert against the respondent and unless he relinquished possession to someone else, it was the legal owner who was entitled to possession against the whole world.

3. The contest of title having been finally determined in the respondent’s favour, he was entitled, as a necessary incident of that ownership, to have full and exclusive possession of the suit land as against the appellant.

4. The fact that the High Court, while affirming the respondent’s ownership to the suit land, omitted to reverse the magistrate’s consequential order dismissing the respondent’s claim for the appellant’s eviction did not affect the legal position.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Registered Land Act (cap 300) section 27

2. Land Adjudication Act (cap 284) generally

Morgan Ndungu v Republic

Court of Appeal, at Nakuru

April 25, 1988

Platt, Gachuhi & Apaloo JJA

Criminal Appeal No 182 of 1986

(Appeal from a Judgment of the High Court at Nakuru, Omolo J)

Sentencing – illegal sentence – imposition of sentence not prescribed for offence – failure to impose mandatory sentence – power of second appellate court to vary sentence – Penal Code (cap 63) section 308(2), (3)(b).

Criminal Practice and Procedure - charge – defective charge – substitution of charge - statement of wrong section of statute in charge – whether defect curable – facts and evidence disclosing an offence other the one charged – power of second appellate to substitute charge - – Penal Code (cap 63) section 308(2), (3)(b) – Criminal Procedure Code (cap 75) section 187.

The appellant was charged with being in a building at night with intent to commit a felony and this was stated in the charge as an offence contrary to the Penal Code (cap 63) section 308(2). He was convicted and sentenced to five years’ imprisonment and ten strokes of corporal punishment.

The appellant’s first appeal to the High Court was unsuccessful, save that the Court found that the offence charged ought to have been under section 308(3)(b) of the Penal Code.

Held:

1. The corporal punishment imposed on the appellant was illegal as section 308(4) of the Penal Code (cap 63) which prescribed punishments for an offence under section 308(3) did not include such punishment. Hard labour and police supervision were mandatory sentences under that section.

2. The High Court on the first appeal ought to have increased the appellant’s sentence accordingly under the Criminal Procedure Code (cap 75) section 354(3) and (6) so as to include hard labour and police supervision and to reduce the sentence by setting aside the corporal punishment.

3. By virtue of section 361 of the Criminal Procedure Code, the only second appeal allowed to this Court is on a matter of law. This Court would only set aside the corporal punishment and leave the sentence at that as it was not clear whether this Court had power to enhance the sentence as a matter of law.

4. The facts and evidence disclosed the offence of preparing to commit a felony under section 308(2) of the Penal Code. This Court was empowered by section 187 of the Criminal Procedure Code to substitute a conviction for that offence.

Conviction under the Penal Code (cap 63) section 308(2) substituted, order of corporal punishment set aside, appeals dismissed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 308, 308(2), 308(3), 308(3)(b), 308(4)

2. Criminal Procedure Code (cap 75) chapter XXIX; sections 187, 221, 344 A, 354(3), 354(6), 361, 361(2)

John Mburu Kinyanjui v Republic

Court of Appeal, at Nakuru

February 26, 1988

Platt, Gachuhi & Apaloo JJA

Criminal Appeal No 141 of 1986

(Appeal from a Judgment of the High Court at Nakuru, Tunoi J)

Criminal Practice and Procedure – charge – form of charge – joinder of offences in a charge – charge containing substantive counts of specific offences together with alternative counts of conspiracy to defraud – whether charge proper – whether proper for case to proceed on such charge – matters the court should consider.

Criminal Law – conspiracy – conspiracy to defraud – fhow offence charged – whether proper to join an alternative count of conspiracy with a substantive charge of a specific offence – matters the court should consider.

The appellant was arraigned in a magistrate’s court on a count of stealing an amount of money which was the property a certain owner, and in the alternative count, for conspiring to defraud that owner of the amount of money. This was followed by another seven charges of theft of another sum of money with an alternative charge of conspiring to defraud the owner of that money. The final ninth count charged an attempted theft of yet another sum of money with the alternative charge of conspiring to defraud the owner of it.

The point for decision in the Court of Appeal was on an objection raised by counsel for the appellant/accused that it was not proper for the prosecution to charge an alternative count of conspiracy to a substantive count for a specific offence.

Held:

1. It is not illegal per se to join an alternative chare of conspiracy with charges of specific offences; indeed it is also not illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences.

2. The desirability of including a count of conspiracy in a charge will depend on the facts of each case and the following points should be considered:

a) As a general rule where, there is an effective and sufficient charge of a substantive offence, the inclusion of a charge of conspiracy is undesirable as it will add nothing;

b) The exceptions to this general rule are that a count of conspiracy is justified:

i) Where it is in the interests of justice to present an overall picture which a series of small substantive offences cannot do;

ii) Where there is clear evidence of conspiracy but little evidence that the conspirators committed any of the overt acts, or where only some of the conspirators committed a few but not all of the overt acts;

iii) Where charges of substantive offences do not adequately represent the overall criminality disclosed in evidence.

c) A count of conspiracy should not be included if the result will be unfair to the defence, and this will be weighed along with other considerations;

d) It may be necessary to try a count of conspiracy separately from substantive counts which are only examples of carrying out the conspiracy;

e) Where the evidence discloses more than one conspiracy, it is undesirable to charge all the conspiracies in one count, but it may not be bad in law;

f) Other factors concern the number and type of conspirators, for instance, the possibility of the two being husband and wife, or the possibility that one of two conspirators may be acquitted, may need to be safeguarded.

3. The question is why it may be desirable to join a count of conspiracy with counts for substantive offences. The main consideration is the unfairness to the accused that may arise because he may not know with what he is charged precisely, or it may be embarrassing to be obliged to defend in the alternative.

4. Secondly, it is desirable that the court admits only evidence admissible in law, as what is admissible in a substantive offence and in a conspiracy may cause confusion.

5. In exercising its inherent powers to see that its process is not abused in the sense that the accused is not oppressed or prejudiced, a court, in a case where a charge contains substantive counts and a related count of conspiracy, should require the prosecution to justify the joinder or failing justification, to elect whether to proceed on the substantive or on the conspiracy counts.

6. The court in this case should have called upon the prosecution to justify the joinder or to elect.

Appeal allowed, case remitted to magistrate’s court to take up the objection  and cause the prosecution to justify its charge sheet or elect which offences it should rely upon.

Cases

1. Mulama v Republic [1976] KLR 24

2. Musinga v R (1951) 18 EACA 211

3. R v Cooper & Compton [1947] 2 All ER 701

4. R v Luberg 19 Cr App Rep 136

5. Verrier v DPP [1966] 3 All ER 568; [1967] 2 AC 195

6. Practice Note [1977] 2 All ER 540

7. Uganda v Milenge [1970] EA 269

Texts

Mitchell, SG et al (Eds) (1979) Archbold: Criminal Pleading, Evidence and Practice London: Sweet & Maxwell 40th Edn para 4073

Statutes

1. Penal Code (cap 63) section 393

2. Criminal Procedure Code (cap 75) section 89(5)

Advocates

Mr Sheth for the Appellant