Aluta v Republic

Court of Appeal, at Mombasa

July 28, 1982

 Madan, Law & Miller JJA

Criminal Appeal No 125 of 1981

(Appeal from a conviction and sentence of the High Court of Kenya at Mombasa (Kneller,J.dated 26th August, 198I in Criminal Case No. 50 of 1980)

Evidence – supporting conviction - weight of - basis for – whether trial judge can base conviction on a theory not canvassed in evidence at trial.

Evidence – dying declaration – evidential value and weight of a dying declaration – when court can safely convict on the basis of a dying declaration.

The appellant was charged with the murder of one Issa, who it was said in evidence had ran up to a group of people at his relatives home with the stab wound that soon afterwards led to his death and called out “Solomon ameniweza”. This, it was said, had happened moments after the departure of the appellant from the area to which a quarrel with the deceased’s relative had led him. Two witnesses stated that they had rushed to the appellant’s house where they heard him say to his wife “I told you I would return and fight hard...”. A knife was found at the appellant’s house but it had no blood stains. The appellant, on his part, denied ever seeing the deceased at the material time or having stabbed him. The trial judge considered the statement made by the deceased before his death and other evidence. He found, among other things, that the appellant had been provoked to lose control of his passions following the quarrel with the deceased’s relative and this provocation had not ebbed at the time that he met the deceased, so that he injured him with a knife. The appellant was convicted of manslaughter and he appealed.

Held:

1. In criminal cases, the conviction can only be based on the weight of the actual evidence adduced and it is dangerous and inadvisable for a trial judge to put forward a theory not canvassed in evidence or in the speeches of counsel. The trial judge had put forward his own theory of the deceased’s death which had not been put forward in evidence.
2. It is generally speaking unsafe to base a conviction solely on the dying declaration of a deceased person made in the absence of the accused and not subject to cross-examination, unless there is satisfactory corroboration.
3. The fact that the deceased in his dying declaration said that the appellant killed him was evidence of his belief and not a guarantee of accuracy.
4. The trial judge had made the wrong assumption regarding the appellant’s state of mind when he was said to have met the appellant.

1. 5.The trial judge had failed to give sufficient weight to some of the evidence in favour of the appellant and it had not been proved that the appellant was guilty beyond reasonable doubt.

Appeal allowed.

 Cases

Okethi Okale and Others v Republic [1965] EA 555

Statutes

Penal Code (cap 63) section 205

Kenya Ports Authority v East African Power & Lighting Company Ltd

Court of Appeal,

at Mombasa March 9, 1982

Madan, Law & Potter JJA

Civil Appeal No 41 of 1981

 Tort - negligence - breach of statutory duty - strict liability rule in Rylands v Fletcher - pollution of port waters by oil leakage - whether port waters can be regarded as property of appellant - whether any damage was suffered by appellant - liability of respondents for damages.

Land - land use - non-natural user of land - storage of oil on land for electricity generation by person licensed to generate electricity on the land - whether this constitutes non-natural user of land - tort - rule in Rylands v Fletcher.

Land - ownership - sea water - port water - whether these waters are capable of ownership at common law - whether person can have proprietary rights thereon - whether sea water is (“res-nullius”) incapable of ownership - extent of proprietary interest in port waters.

Civil Practice and Procedure - amendment of pleadings - grounds for granting order to amend - time within which an application to amend should be brought.

The respondent had been licensed by the appellant to operate a power station inside the port of Mombasa on the appellant’s land. Following a leakage from the pipes serving the power station, the waters of the port were contaminated with oil. The appellant sued the respondent for damages incurred in cleaning up the harbour which, as pleaded in the plaint, had been done “to avoid combustion.”

In upholding a preliminary objection raised on the respondent’s behalf that the plaint disclosed no cause of action, the High Court held that the appellant did not own the water to which the damage had been caused and that since no damage had been done to its property, its claims both under negligence and under the rule in Rylands v Fletcher must fail. The court also expressed its view that the respondent, by bringing oil onto its land in the port area, was not making a non-natural user of land.

The appellant had submitted, inter alia, that it had a sufficient proprietary interest in the harbour waters to act against trespass as well as to claim damages in negligence leading to the pollution of the water.

The appellant appealed and the respondent cross-appealed.

 Held:

1. The port waters was res nullius (incapable of ownership) and was therefore not the property of the appellant.
2. No actual damage had been caused to any of the appellant’s property by virtue of the pollution of the port waters.
3. Pecuniary loss arising out of purely precautionary measures taken to clean up pollution which might cause damage to property was not a loss that can be recovered at common law.
4. The storage of oil on land by a person licensed to generate electricity, the oil being essential for the generation of electricity, is not an unnatural use of land.
5. The application to amend could not be allowed where it was made at a very late stage. Such an application must be brought at the earliest convenience.
6. (Obiter Law JA) The plaintiff suffered no actual damage to any of it’s property, to the extent that the water in the port was damaged by pollution, that water was not the property of the plaintiff.
7. (Obiter Law JA) Since pecuniary loss arising out of purely precautionary measures is not recoverable under common law, the remedy would appear to be for legislation to be enacted to make the cost of cleaning up pollution to be recoverable from occupiers of water-side plots as well as ship owners who are responsible for the pollution of territorial waters and harbours.
8. (Obiter Madan JA) It can be an anomaly and indeed vindictive, to make a negligent actor responsible to those who do not suffer either to their person or property as a result of the negligent act. The sea water that was damaged was a moving, shifting, evaporating, vanishing element which had no fixed abode, nor a fixed area containing it. It was unidentifiable as a fixed property unless put in a bucket or bowser. It was incapable of ownership by anyone. In Shimanzi creek today, away tomorrow, may be many miles away, in another creek, or lapping against different shores, or even rising in waves in the open sea. No ownership, no injury; hence no cause of action.

Appeal dismissed, cross-appeal allowed.

 Editorial Note:

The recommendation of Law JA became a reality after 18 years with the enactment of the Environmental Management and Coordination Act, 1999. A person in the situation of the appellant would now have a remedy under the Environmental Management & Coordination Act, 1999 (Act No 8 of 1999) Section 3(3) of which provides that “A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury provided that such action - (a) is not frivolous or vexatious; or (b) is not an abuse of the court process.”

Cases

1. Rylands v Fletcher (1868) 37 LJ Ex 161 Applied
2. Read v Lyons (J) & Co Ltd [1944] 2 All ER 98 Distinguished
3. Prosser (A) & Son Ltd v Levy & Others [1955] 3 All ER 577 Distinguished

Statutes

1. The Laws of the East African Community, Regulation 67
2. East African Harbours Corporation Act (Cap 19) (Extinct)
3. East African Harbours Regulation (Cap 19 Sub Leg) (Extinct) Regulation 67 (Extinct)
4. Kenya Ports Authority Act (Cap 391) Section 73

Advocates

Mr Shields for Appellant

Mr IT Inamdar for Respondent

Kyalo v Bayusuf Brothers Ltd

Court of Appeal, at Mombasa

January 28, 1982

Madan, Law & Miller JJA

Civil Appeal No 38 of 1981

Civil Practice and Procedure - pleadings - amendment of pleadings - leave to amend defence - application to amend filed out of time - amendment making an allegation of fact inconsistent with the previous pleading in the same suit - no satisfactory reason for such change - whether leave should be granted in such circumstances.

Judicial discretion - exercise of - granting of leave to amend pleadings - meaning of discretion rightly and judicially exercised - whether court should interfere with the exercise of discretion.

An amended plaint was filed in court claiming damages resulting from a collision between the plaintiff’s motor vehicle and one allegedly owned by the defendants. The defendants (now appellants), who had filed a defence to the original plaint admitting ownership of the vehicle and that the driver was their employee, failed to file an amended defence within fourteen days. Their advocate applied by chamber summons for leave to file an amended defence out of time so as to plead that they were not the owners of the said vehicle or employers of the driver at the material time, in contradiction of the specific admissions made in the original defence. The learned judge exercised his discretion against the appellants and dismissed their application, noting that the proposed amended defence was in contradiction of the original defence and that the reasons for taking such a different stand had not been persuasive.

Held:

1. Applications for amendment of pleadings should only be allowed if they are brought within reasonable time because to allow a late amendment would amount to an abuse of the court process. In this case the amendment came six years late.

2. Amendments that contain allegations completely inconsistent with the previous pleadings in the same suit cannot be allowed, especially if they are late, as they would delay fair trial and prejudice the other party.

3. The learned judge exercised his discretion rightly and judicially in refusing to grant leave and there was no reason to interfere with the principles applicable as they were rightly applied.

Appeal dismissed.

 Cases

 No cases referred to.

 Statutes

Civil Procedure Rules (cap 21 Sub Leg) order VIA rule 1(2)(b)

 Advocates

MG Sharma for Appellants