Evans Moses Saeta v Republic

Court of Appeal, at Nakuru December 23, 1992

Masime, Gicheru & Kwach, JJ A

Criminal Appeal No 67 of 1992

(An Appeal from a judgment of the High Court of Kenya at Nakuru (Tanui, J) dated the 24th day of October, 1991 in HCCr A No 248 of 1991)

Criminal law – demanding with menaces – essential ingredients of.

Criminal law – demanding with menaces – appellant asking for money to end purported arrest for unlawful logging – whether such conduct amounts to demanding with menaces.

The appellant was convicted of demanding Kshs 1000 with menaces contrary to section 302 of the Penal Code and sentenced to 18 months imprisonment.

The appellant who was an Administration Police Corporal arrested the complainant allegedly for logging without permit. When the permit was finally availed to him he claimed the permit should have indicated the size and not the acreage of trees to be felled. He therefore detained the complainant’s power saw and axe and asked to be given Kshs 1000/= to end the matter.

His appeal to the High Court on conviction and sentence was dismissed in its entirety. On second appeal he contended that there was no proof that he demanded Kshs 1,000/= from the complainant with menaces.

Held:

1. A demand with menaces need not be express. The demeanor of an accused person together with the circumstances of a particular case culminating with the victim’s understanding that a demand was being made upon him and that that demand was accompanied with menaces so that his balance of mind was upset would amount to a demand with menaces.

2. The list of the menaces is the answer to the question whether the menaces were if proved, likely to operate on or affect the mind of a person of ordinary firm courage and character by placing such person in the position revealed by the facts of the particular case.

3. Placing the complainant in the facts outlined and his reactions to the circumstances appertaining thereto, the Court cannot say with certainty that the appellant’s importunity for money from him amounted to a demand nor that it operated upon his mind so as to affect his balance and thereby acceded to it unwillingly.

Appeal allowed.

Cases

1. Rex v Falabhai Jethabhai & another (1946) 13 EACA 179

2. R v Thomas James Collister & Warhurst (1955) 39 Cr App Rep 100

3. Regina v Clear [1968] 1 QB 690; [1968] 1 All ER 74

Statutes

Penal Code (cap 63) section 302

Mwancha v Republic

Court of Appeal, at Nakuru December 23, 1992

Masime, Gicheru & Kwach JJ A

Criminal Appeal No 26 of 1992

(Appeal from a judgment of the High Court of Kenya at Eldoret (Aganyanya, J) dated 15/11/91 in HCCRC No 8 of 1991

Criminal Law – self-defence – law relating to self-defence - considerations Court should take into account when accused pleads self-defence.

Evidence – accused plea of self-defence not having been disproved by the prosecution but Court nevertheless convicting him of manslaughter – validity of conviction.

The appellant appealed against his conviction for manslaughter contending that the said conviction was wrong as the evidence on record demonstrated a clear case of self-defence; and that the sentence of 4 years imprisonment was excessive in the circumstances of the case.

The brief facts were that at about 7.30 pm on 16th July, 1990 the appellant received a report originating from Kapsabet police divisional radio room to the effect that motor vehicle registration No KUV 944, Subaru, white in colour had been stolen in Kakamega area and was said to be heading towards Nandi area. In it were some armed men. The appellant was required to put up a road block to check on this vehicle. At about 8.00 pm, the appellant together with Corporal Harun Cheruiyot (PW15) booked out on patrol duties around Lessos trading centre. They did not trace this vehicle. The two police officers therefore returned to Lessos Police Station, where they booked themselves in and went to sleep.

Meanwhile, on the same day and at about the same time, the deceased who was travelling to Nairobi from Kakamega in his official motor vehicle registration No KYL 895, Nissan Sunny and was accompanied by his girlfriend together with her three weeks old child and two other persons decided to stop at Lessos trading centre for the night after the vehicle aforementioned broke down near the said trading centre

Once the appellant was booked in his room, he went into the nearby Salama bar where he and some of his friends drank beer until about 11.00 pm then moved to the next bar where they continued drinking. At about mid-night, the lights in the bar were put off as that was the closing time for the day’s business. The deceased and his friend had not at the time finished drinking the beer they had. He therefore asked the bar attendant why the lights were put off while they were still drinking. PW8 intervened and told the deceased and his companion to leave the bar as the legitimate time for drinking beer in the bar was over. He also refused the deceased’s request to be allowed to complete drinking his beer. In the meantime, the bar watchman, came into the bar flashing his torch with a view to ejecting the deceased and his friend out of the bar. As he did so, the deceased pulled out a pistol and pointed it at him. He then went out of the bar. Thereafter, the deceased who was dressed in a Kaunda suit left the bar together with his friend and at the verandah of the adjacent Salama bar where there was electric light he pulled out his pistol and dared PW3, PW7, and PW8 to say what you were saying while inside the bar to which PW8 responded by raising up his hands and said: “old man, go and sleep we have no problem with you.”

The trio however worried by the kind of person the deceased was decided to report to Lessos Police Station that there was somebody at Cheptungey bar and lodging who was armed with a pistol. On making this report, they were given three police officers who were in uniform. Two of the police officers were each armed with a G3 military rifle while the third police officer was armed with a “rungu” and returned to Cheptungey Bar & Lodging where they were led to the deceased’s room.

Outside that room the appellant knocked at the door which was locked from inside and identified himself and his colleagues as police officers. He told the deceased to open the door but the deceased said that he would not do so as he had committed no offence. The appellant continued knocking at this door while at the same time he was telling the deceased that he and his companions were police officers. Electric light was switched on in the room but the deceased did not open the door. Eventually, the appellant told the deceased that if he did not open the door he would break it. He then kicked the door four times in an attempt to break it open. Suddenly the door was opened and the deceased confronted the appellant pointing a pistol to him. According to the appellant, with this confrontation, he tried to dodge and found no way of escape. Immediately thereafter, it all became dark to him and impulsively he fired his loaded G3 military rifle. The deceased staggered backwards towards the bed he had been sleeping on dropping the pistol on the floor of the room and then sat on the said bed with his back leaning against the wall of that room. He died shortly afterwards as a result of a penetrating gunshot wound on the lower part of the right side of the abdominal cavity.

Held:

1. Where the issue is one of self-defence, it is desirable and indeed necessary to remind oneself that the state of mind of the accused, that is, his view of the danger threatening him at the time of the incident, is material.

2. The test of reasonableness is not, to put it at its lowest, a purely objective one. What is reasonable, judged from the viewpoint of an outsider looking at a situation quite dispassionately and the viewpoint of the accused himself with the intellectual capabilities of which he may in fact be possessed and with all the emotional strains and stresses to which at the moment of unexpected anguish he may be subjected to, is what would amount to his having done what he honestly and instinctively thought was necessary.

3. The appellant’s plea of self-defence was not disproved by the prosecution and his plea that he had committed no unlawful act starkly remained to be resolved.

Appeal allowed.

Cases

1. R v Whyte [1987] 3 All ER 416; 85 Cr App R 283

2. James Russel Shannon v R (1980) 71 Cr App R 192

3. Regina v Lobell [1957] 1 QB 547; [1957] 1 All ER 734; [1957] 2 WLR 524

4. R v Alan Abraham (1973) 57 Cr App R 799

5. R v Wheeler (1967) 52 Cr App R 28

Statutes

Penal Code (cap 63) section 205

George Ngaruiya & Another v Republic

Court of Appeal, at Nakuru October 24, 1992

Gicheru, Cockar & Muli JJ A

Criminal Appeal No 28 of 1992

(An Appeal from a judgment of the High Court of Kenya at Eldoret  (Aganyanya, J) dated 11th day of June, 1990 in  HCCR Appeal No 10 of 1990)

Criminal Practice and Procedure - appeal - summary rejection of-when first appellate court may summarily reject appeal.

Criminal Practice and Procedure - appeal -summary rejection of-appellant challenging conviction on grounds of credibility of prosecution’s witnesses and severerity of sentence-whether appeal can be validly rejected summarily-section 352(2)-Criminal Procedure Code.

The appellants were convicted by the Magistrate’s Court at Eldoret of the offence of willfully and unlawfully damaging property contrary to section 339 (1) of the Penal Code and sentenced to a fine of Kshs 2,000/= each or in default 5 months imprisonment. The appellants appealed to the High Court against their conviction and sentence contending inter alia that their conviction was against the weight of evidence and the sentence meted was excessive. The appellants contended in their appeal that the evidence upon which they were convicted concerned unresolved conflicting evidence of the prosecution witnesses some of whom had perjured themselves. The appellants accused the trial court of failing to evaluate the prosecution evidence in isolation and disregarding the evidence for the defence. They thus submitted that failure to give them the benefit of doubt in view of the prosecution not discharging its onus of proof showed the trial magistrate’s bias against them, nevertheless, the High Court, summarily rejected the appellants’ appeal under section 352 (2) of the Criminal Procedure Code.

Held:

1. An appeal can only be summarily dismissed under section 352(2) of the Criminal Procedure Code by the superior court in its appellate jurisdiction where it is brought on the ground that the conviction is against the weight of evidence, or that the sentence is excessive.

2. Where an appeal is brought not only on the ground that the conviction was against the weight of the evidence or that the sentence is excessive but also on some other ground or grounds, the superior court in its appellate jurisdiction has strictly no jurisdiction to deal with that appeal summarily however little merit there may, or may not be in any of the other ground or grounds.

3. The particulars of the appellant’s appeal to the High Court at Eldoret was not restricted to their conviction by the trial court being against the weight of evidence or to their sentence being excessive. That Court in its appellate jurisdiction had no jurisdiction to deal with the appellants’ appeal summarily. Its summary rejection of that appeal was wrong.

Appeal allowed.

Cases

1. Karioki s/o Gachohi v Rex (1950) 17 EACA 141

2. Lighton alias Mogege s/o Nundekesye v Rev (1951) 18 EACA 309

3. Mulokh Raj Mahan v Reginam (1954) 21 EACA 383

4. Raphael v Republic [1973] EA 473

Statutes

1. Penal Code (cap 63) section 339(1)

2. Criminal Procedure Code (cap 75) section 352(2)

CRIMINAL PRACTICE AND PROCEDURE - manslaughter - appellant was charged with the offence of murder - convicted on the charge of manslaughter and sentenced to 6 years imprisonment - appeal against the conviction and sentence of the High Court - where there was overwhelming evidence against her - where she was the only other person besides the deceased present in her house where the attack tool place - whether the conviction was lawful - mitigating circumstances - whether the court could reduce the sentence imposed - Penal Code section 203 as read with 204

Wilson Chumo v Messrs Kapsimatwo Express

Cout of Appeal, at Nakuru September 24, 1992

Gachuhi, Gicheru & Muli JJ A

Civil Appeal No 42 of 1990

(Appeal against the Judgment and Decree of the High Court of Kenya at Eldoret (Mr Aganyanya J) dated 31st of October, 1989 in Civil Case No R 21 of 1988)

Road traffic accident – damages – award of – circumstance in which an appellate court may interfere with an award of damages.

Road traffic accident – dependency – apportionment of – a matter of fact not law.

The appellant who commenced action on behalf of his deceased daughter prepared an appeal against the decision of the High Court claiming that that Court’s award was inordinately low as to reflect application of wrong principles in assessment of damages.

Counsel for the appellant argued that the learned trial judge failed to give proper attention to the evidence adduced by the appellant in that he failed to consider dependency for the deceased’s two young children at the time of her death. Counsel further argued that it was erroneous on the part of the Judge in apportioning dependency at 1/3 of the deceased net income instead of 2/3.

Held:

1. The principles to be observed by any appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

2. Clearly the learned trial judge failed to take into account relevant factors and thereby arrived at a wholly erroneous estimate of damages.

3. The ratio on a formula 1/3 deceased’s personal expenses and 2/3 for dependant’s or vice versa was the genesis in 1956 although the decision was not reported until 1961 in Hayes v Patel [1961] EA 129 per Kenneth O’Connor CJ as he then was.

4. The principle applied in assessing dependency is that the Court should find the age and expectation of working life of the deceased and consider the wages and expectations of the deceased and apportion his net income which he would have made available for his dependants.

5. Long list of decisions indicate that the 1/3, 2/3 proportions for personal expenses and dependency respectively has been applied under the assumption that it is the rule of law. It is not. Dependency and ascertainment of personal expenses are matters of fact.

Appeal allowed.

Cases

1. Kemfro Africa Ltd t/a Meru Express Services (1976) & another v Lubia & another [1987] KLR 27; [1982-88] 1 KAR 727

2. Hayes v Patel [1961] EA 129

3. Hassan v Nathan Mwangi Kamau Transporters & 4 Others [1986] KLR 457; [1982-88] 1 KAR 946; (2008) 1 KLR (G & F) 901

4. Khemaney v Murlidhar [1958] EA 268

5. Bor, Jane Chelagat v Andrew Otieno Onduu & 2 Others Civil Appeal No 17 of 1990

Statutes

Fatal Accidents Act (cap 32) section 6

Advocates

Mr Onyinkwa for the Appellant

Mr Machio for the Respondent.

Appeal-abetment of appeal-where the appellant died-court order

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