Shah v Republic

Court of Appeal, at Mombasa August 26, 1984

Kneller, Hancox JJ & Nyarangi Ag JA

Criminal Appeal No 86 of 1983

(Appeal from the High Court at Mombasa, Bhandari J)

Evidence - corroboration - meaning of corroboration - duty of trial judge to point out corroboration evidence to assessors - failure of judge to  discharge duty - whether such failure fatal to conviction.

Evidence - confession - substantially truthful confession – confession containing mistakes - whether such confession may be relied on.

Criminal Practice and Procedure - trial within a trial - purpose of - assessors - presence of assessors in trial within a trial allowed at request of defence counsel - whether presence of assessors proper – whether accused prejudiced by presence of assessors - whether conviction proper.

Assessors - trial within a trial - whether assessors should be present in trial within a trial - whether presence of assessors prejudicial to accused person - opinion of assessors - when and how opinion of assessors presented to court - corroboration evidence - duty of trial judge to point out corroboration evidence to assessors.

Arrest and Detention - length of detention period - arrest and detention without warrant-interrogation and recording of statement from detainee by police - medical examination of detainee done in presence of police officer - appellants detained for three days - whether detention reasonable - circumstances under which detained person will be denied advocate - The Judges’ Rules.

Sentencing - multiple counts - how sentence passed where accused convicted of more than one count - sentence of death - failure to specify the count for which sentence is passed - whether multiple sentences of death proper - Criminal Procedure Code (cap 75) section 169(2).

The appellants were detained and thereafter charged with two counts of murder following the deaths of one Kaushik and his wife Ranjan, who had been their business rivals. The deceased had been found dead in their car with various injuries consistent with an attack by two people, one with a knife and the other with a gun. Near the deceased’s car was a car which had been hired by the appellants, the keys for which they claimed in their report made to the police the night before the discovery of the bodies of the deceased, had been stolen from the first appellant by two persons at gunpoint. A policeman who had been on duty at the place at about the time when that incident was alleged to have taken place, however, had seen and heard nothing of it. Shortly after the time that one person living near the area where the bodies of the deceased were found had heard what sounded like gunshots, one Juma took two passengers and drove them to their home, one of whom he would later identify to the police as the first appellant. A torch was found in the first appellant’s house which Juma said was similar to one that had been held by one of those passengers.

The appellants were formally arrested and detained in various but separate cells. Both were interviewed separately and interrogated by police officers without prior caution. No inquiry statement was taken from either appellant but it was claimed that as a result of something arising from his interrogation, the first appellant had led the police to the crime scene and there, it was further claimed, and the first appellant denied, he had pointed out a magazine of a pistol. The first appellant was taken to a police officer who, it was alleged, after charging him with the murders of the deceased, cautioned him and wrote his reply, but the appellant said that he was forced to write it. The second appellant also recorded a statement after being charged and cautioned and the two statements amounted to confessions. Though the appellants and their advocates alleged that they had been ill-treated by the police, their examinations by a doctor, which had been done in the presence of a policeman soon after the making of the statements, showed them to have been in good health with no visible signs of recent injury. The appellants had been denied access to their families and advocate for three days and five hours after which they were taken to court. Their confession statements were admitted in evidence after a trial within a trial which, upon the request of their advocate, was conducted in the presence of the assessors. At the end of the trial, every assessor’s opinion to the court was that the appellants were guilty of murder. The appellants were convicted of each murder and were sentenced to death. They both appealed.

Held:

1. When a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge, he should, without delay, cause that person to be charged or told that he may be prosecuted for it. It is unlawful and unwise to do otherwise because failure to comply with the Judges’ Rules provides criminals with defences.

2. As there is no statutory maximum period for which the police can detain someone taken into custody without a warrant for murder, the period can only be for what is a reasonable time depending on all the circumstances of the case. In the circumstances of this case, the detention of the appellants for 3 days and five hours was not unreasonable.

3. It is not right to detain people in isolation for too long or whirl them around in different police stations for that would disorientate them and make it difficult to know what weight to give their answers or actions - R v Reid [1982] Crim LR 514

4. A detained person should not be denied an advocate except for good reason as, for example, in cases involving immediate risk to life, limb and property. Where it is done because the police believe the advocate would advise the detainee not to answer questions put to him by them or deliberately give them unhelpful information, that is not a good reason for it should be supposed that the advocate will act with integrity until the opposite is known or suspected. Lemsatef v R [1977] 2 All ER 835. Even if this practice is breached, however, there remains, as with other rules of practice, the discretion vested in the trial judge whether to admit or not to admit the confession - R v Reid [1982] Crim LR 514

5. The presence of police officers at medical examinations of detainees is deprecated - Paul Nakwale Ekai v Republic Criminal Appeal No 115 of 1981

6. Corroboration is some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence- Clynes [1960] 44 Cr App R 158, 161. The trial judge had set out ten matters as being independent admissible evidence which he accepted as corroboration yet there were only three of them which could be termed as corroboration.

7. A trial judge has a duty to assist the assessors by indicating the evidence which they are entitled to treat as corroboration and while failure to do so could be fatal to a conviction in a trial by jury where such matters are admissible, where the case against the accused had been so overwhelming that there was no miscarriage of justice, it would be right to dismiss the accused’s appeal.

8. When, in a case tried with assessors, the case for both sides is closed and the judge has summed up the evidence for the two sides, he has to ask each of the assessors to state his opinion orally and the judge must record it.

9. The purpose of a trial within a trial is to determine the voluntariness of the statement tendered for the prosecution, because a statement by an accused person is not admissible in evidence against him unless it is proved to have been voluntary.

10. It may happen that an accused person who has originally denied all knowledge of a crime later admits he committed it. The person best able to get the feeling and effect of the circumstances in which a confession was made is the trial judge, and his findings of fact and reasoning are entitled to respect.

11. A substantially truthful confession may contain mistakes but in an appropriate case a trial judge may rely on it despite its mistakes and if a material element in it is demonstrably untrue and it must have been known to its author, it cannot be relied on - Aneriko v Uganda [1927] EA 193

12. As a general rule, the assessors should be absent during the whole of the determination as to the admissibility of an extra-judicial statement because where the evidence relating to a challenged statement is heard in the presence of assessors, whether the assessors are there as spectators or not, the accused person will be prejudiced because should the judge rule against admissibility, the assessors will have heard a great deal of inadmissible evidence, or, if not inadmissible, evidence going to the issue of something which has become inadmissible. In this case, there was no prejudice occasioned to the appellants by the course taken in the trial within a trial.

13. The decision in Ajodha v The Queen [1981] 2 All ER 193, on which the court had relied in acceding to the defence’s request that the assessors be present during the trial within a trial was given in relation to different conditions and circumstances. It was not of binding authority and appears to have been doubted by the Court of Appeal in R v Airey The Times 19th June, 1984.

14. The trial judge, in sentencing the appellants to death, had failed to specify for which count the sentence was passed in accordance with section 169(2) of the Criminal Procedure Code (cap 75) and the appellants should have been sentenced to death on each count.

15. (Obiter) It is undesirable, because inhuman, that double or multiple sentences of death be passed and they can and should be avoided where the charges allege murder. It is not improper to file an information containing two or more counts of murder and it is within the discretion of the court to allow or disallow this. Generally, however, the court should ask the Republic to choose the one with which it prefers to proceed and leave the other or others on the court file until further order.

16. (Obiter) The pre-1964 Judges’ Rules of England apply in Kenya and are rules of practice - Anyangu v Republic [1968] EA 239.

Appeals dismissed.

Cases

1. Regina v Rennie The Times November 7 1981; [1982] 1 All ER 385; [1982] 1 WLR 64

2. Aneriko v Uganda [1972] EA 193

3. Anyangu v Republic [1968] EA 239

4. R v Reid [1982] Crim App R (s) 280

5. Lemsatef v R [1977] 2 All ER 835

6. Paul Nakwale Ekai v R Crim App No 115 of 1981; [1981] KLR 569

7. Boyd Mackintosh [1983] 76 Cr App R 177

8. Ibrahim v Rex [1914] AC 559, 609

9. Tuwamoi v Uganda [1967] EA 84

10. Patrick Joseph Clynes [1960] 44 Cr App R 158, 161

11. Leslie Martin, Henry Ansell and Thomas Ross (1934) 24 Cr App R 177, 185

12. Regina v Cullinane (Stephen) The Times March 1 1984

13. Walukau and Musete v R [1981] Cr App R 25 1981

14. Ajodha v The State [1981] 2 All ER 193

15. R v Airey The Times 19 June 1984

16. The Queen v Thompson [1893] 2 QB 12

17. Mwangi s/o Njoroge v R (1954) 21 EACA 377

18. Kinyori s/o Karuditu v Reginam (1956) 23 EACA 480

19. Gatheru s/o Njagwara v Reginam (1954) 21 EACA 384

20. Turon v Republic [1967] EA 789

21. Okwaro Wanjala v Republic [1978] KLR 114

22. Alaka v Republic [1978] KLR 114

23. Jackson Ndambuki Mutuse v R Mombasa Cr App 66 of 1982 (unreported)

24. Gerald Kamau Kihara v Republic Nairobi Criminal Appeal 10 of 1983 (unreported)

25. Gachuga s/o Thiongo v Rex (1950) 17 EACA 145

26. Mongella s/o Ngui v Rex (1934) 1 EACA 152

Statutes

1. Criminal Procedure Code (cap 75) sections 36, 169(2), 322(1)

2. Evidence Act (cap 80) section 26

Advocates

Mr Prinja for Appellant

Mr Metho for Republic

Wanje v Saikwa (No 2)

Court of Appeal, at Mombasa July 27, 1984

Hancox JA, Chesoni & Nyarangi Ag JJA

Civil Appeal No 72 of 1982

(Appeal from the High Court at Mombasa, Schofield J)

Adverse Possession – proof of – elements to be established – to support a claim of adverse possession – when is possession adverse – meaning of dispossession of true owner supporting adverse possession – when time begins to run in favour of adverse possession.

Limitation of Actions – tenancy at will - under the Limitation of Actions Act (cap 22) – provisions of section 12(1) – determination of tenancy at will.

The four respondents were the registered owners of a piece of land which they had purchased from a previous owner, Hussein Dairy Limited. The ninety-four appellants were alleged to have been living on the land as squatters at the time the respondents purchased it and they had refused to vacate it. The respondents filed a suit in the High Court in which they sought a declaration that the appellants were not entitled to enter and reside upon the land, the eviction of the appellants from the land and damages. In granting the orders sought by the respondents, the trial judge observed that the appellants’ (then the defendants) advocate had in his closing submission suggested that the appellants were entitled to the land by virtue of adverse possession but this claim had neither been pleaded nor proved. The appellants appealed.

Held:

1. In order to acquire by the statute of limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it.

2. What constitutes dispossession of a proprietor are acts done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.

3. A person who occupies another person’s land with that person’s consent cannot be said to be in adverse possession as in reality he has not dispossessed the owner of the land and the possession is not illegal.

4. The appellants had been tenants at will under the previous owner of the land and had not been trespassers.

5. The appellants’ possession of the land could only have become adverse when the period of the notice to quit given by the respondents expired and the appellants had failed to prove the fact of twelve years’ adverse possession.

Appeal dismissed.

Cases

1. Wambugu v Njuguna Civil Appeal No 10 of 1982; [1983] KLR 172

2. Littledale v Liverpool College [1900] 1 CL 19 at p 21

3. Leigh v Jack (1879) 5 Ex D at p264

4. Pearlberg v May [1951] Ch 699

5. Wainaina v Murai and others [1976] KLR 227 at p 231

6. Gatimu Kinguru v Muya Gathangi [1976] KLR 253 at p 260

Texts

1. Megarry, R., (1975) A Manual on the Law of Real Property, London: Stevenson & Sons 5th Edn p 490

2. Topham, A.F., Pratt, E.M., (1936) Mulla on the Transfer of Property Act, 1882 Bombay: N.M. Tripathi Private Ltd, 2nd Edn p569

3. Burke, J., (1977) Jowitt’s Dictionary of English Law London: Sweet & Maxwell, 2nd Edn Vol 2 p1749

Statutes

1. Limitation of Actions Act (cap 22) sections 7, 12(1), 17

2. Transfer of Property Act 1882 section 105

Advocates

Mr Kupalia for Appellants

Mr Kamere for Respondents

Hintz v Mwakima

Court of Appeal, at Mombasa July 26, 1984

Kneller, Chesoni & Nyarangi Ag JA

Civil Appeal No 72 of 1983

(Appeal from the High Court at Mombasa, Bhandari J)

Succession – intestate succession – property of intestate – chose in action in the form of a cause of action – how transmitted and enforced after death of intestate – personal representative – legal representative – heir of the estate of a child – whether such heir capable of suing on behalf of such estate without grant of letters of administration – whether Indian Succession Act 1865 applicable – whether Law of Succession Act (cap 160) applicable – Law Reform Act (cap 26).

Criminal Practice and Procedure - parties – parties to suit – suit for the benefit of an intestate’s estate – how such a suit is instituted – persons by whom such suit may be instituted - heir of the estate of deceased child – whether such heir capable of suing on behalf of such estate without grant of letters of administration - Law Reform Act (cap 26).

Statute – interpretation of statutes – Fatal Accidents Act (cap 32) – Law Reform Act - Law of Succession Act - causes of action arising under Fatal Accidents Act and Law Reform Act – nature of - whether such causes of action separate and distinct - suit for the benefit of an intestate’s estate under Law Reform Act - whether heir capable of suing on behalf of such estate without grant of letters of administration.

Minor – suit by minor – how such suit is instituted – Civil Procedure Rules order XXXI rule 1(1).

Mwakima Mwangombe, a child of the age of four years, died as a result of a traffic accident when a motor vehicle driven by the appellant collided with him on May 1, 1980. In May 1982, the respondent, Mwangombe’s father, filed a suit against the appellant claiming damages under the Law Reform Act (cap 26). In his defence, the appellant contended that the respondent had no cause of action against him under that Act as he had not obtained letters of administration to the estate of the deceased child. It was further submitted that on May 1, 1980 (the day of the deceased’s death), the estates of Africans, who were not Mohammedans, were governed by the Indian Succession Act 1865, under which letters of administration were necessary before a right to any part of the property of a person who had died intestate could be established. In answer to the objection, the respondent argued that the deceased’s cause of action had survived his death and was vested in his estate for the estate’s benefit and that the respondent was not an administrator or legal representative but was a personal representative capable of filing the action without having first obtained letters of administration with respect to the deceased’s estate. The preliminary objection was rejected by the court which held that the respondent was entitled to sue the appellant by reason of not only section 2(1) of the Law Reform Act but also the procedure in section 7 of the Fatal Accidents Act (cap 32). The appellant appealed to the Court of Appeal.

Held:

1. A cause of action in negligence arose and vested in the deceased child at the moment he was injured by the vehicle driven by the appellant and the measure of damages, if he could prove the appellant’s liability, would include fair compensation for his injuries and such loss of expectation of life as was caused to him by that tort.

2. The deceased’s cause of action was property in the form of a chose in action and it was vested in him while he lived. If the deceased had survived the accident, then, since he was a minor, his suit would have had to be instituted in his name by a person referred to as his “next friend” under order XXXI rule 1(1) of the Civil Procedure Rules.

3. An intestate’s property is transmissible to his personal representative such as his next of kin although it may also vest in his legal representative, such as executor or administrator. The deceased’s cause of action against the appellant which comprised his chose in action was his property and the deceased’s property was upon his death transmitted to and not vested in his father, the respondent.

4. A right of action under the Law Reform Act (cap 26) is separate and distinct from a right of action under the Fatal Accidents Act (cap 32) and each Act is independent of the other.

5. Under the Law Reform Act, the right of action is for the benefit of the deceased person’s estate, the money recovered falls into the estate and is subject to the will, if any, of the deceased person and to the claims of his creditors whereas under the Fatal Accidents Act, the right of action is for the benefit of the dependants of the deceased whether the action is brought by the deceased’s personal representative or by the dependant in his personal capacity.

6. The trial judge therefore need not have applied the Fatal Accidents Act as the preliminary objection had been raised under the Law Reform Act.

7. Section 190 of the Indian Succession Act 1865 (which applied to Kenya until July 1981, when it was repealed by the Succession Act (cap 160)), provided that no right to the property of an intestate person could be established unless letters of administration had first been granted, applied to a person seeking to establish a right or claim to part or the whole of a deceased person’s property. The respondent in this case was suing on the deceased’s cause of action and was not seeking to establish a right to the deceased’s property therefore the section did not therefore apply to him.

8. A parent or next of kin or a personal representative can act as a representative of a deceased person and file an action for the benefit of the estate of such person without grant of probate or letters of administration to the estate. If it was intended that an action under the Law Reform Act would be brought by an executor or an administrator, specific provision would have been made to that effect particularly so because that Act commenced ten years after the Fatal Accidents Act.

9. (Kneller JA, dissenting)

The estate of the deceased was subject to the written law which applied to it on the day on which he died. As the plaint was filed on May 25, 1982, it was subject to the provisions of the succession Act hence the administration of the deceased’s estate had to proceed, as far as possible, in accordance with that Act.

10. The right of action vested in the deceased passed under the Law Reform Act to his personal representative and was for the benefit not of the deceased’s dependants but of his estate. Under section 2 of the Law of Succession Act, a personal representative is someone who has been granted letters of administration to the estate of the deceased intestate.

11. The sole heir or one of the heirs of a child may in many instances be his or her father but without a grant, whether general or limited, of letters of administration intestate, the heir cannot represent that estate and bring an action on its behalf because until the grant is obtained by someone, the estate and the legal chose in action are vested in the court. The estate and the legal chose in action automatically pass to the administrator when the grant is obtained.

12. The respondent did not, at common law or in equity or under any written law before or after the Law of Succession Act of Kenya, have the right to bring this action under the Law Reform Act because the chose in action had not vested in him when he filed the plaint or at all and, consequently, the action was and always remained incompetent.

By majority decision, appeal dismissed.

Editorial Note

The points raised in the dissenting judgment of Kneller JA were revisited by the Court of Appeal sitting in Nairobi in the case of Trouistik Union International and Ingrid Ursula Heinz v Jane Mbeyu and Alice Mbeyu Civil Appeal 145 of 1990. The bench of five comprised of Apaloo CJ, Kwach, Cockar, Omolo & Tunoi JJA (as they were then) in a judgment delivered on October 19, 1993 overturned the majority decision of the court in this case. The Court of Appeal held that this case was wrong and that though it had stood for nine years, it had to be overturned.

Cases

1. Hilton v Sutton Steam Laundry (1946) 115 LJK BD 33, 35 CA

2. Burns v Campbell [1951] 2 All ER 965 (CA)

3. The Vera Cruz (No 2) (1884) 9P 96

4. Benjawa Jembe v Priscilla Nyondo (1912) 4 EACA 160, 161

5. Miney Frances v Samuel Bartholomew Kuri as Administrator of the Estate of Samuel Nelson Bartholomew deceased (1951) 24 KLR 1

6. Re Maangi [1968] EA 637, 639 (K)

7. In the matter of the estate of the late Karichwa Pola, Probate and Administration Cause 25 of 1982 (unreported)

8. In the matter of the estate of the late Thomas Kazungu Kavivya Kazau Probate and Administration Cause 100 of 1982 (unreported)

9. Ingall v Moran (1944) 113 LJKB 298, 299 (CA)

10. Rainford v Knowles (1888) 59 LT 359

11. Davies v Powell Duffryn Associated Collierries Ltd [1942] 1 ALL ER 657

Texts

1. Munkman, J., (1980) Damages for Personal Injuries and Death, London: Butterworths, 6th Edn p 135

2. James, J.S., (1971) Stroud’s Judicial Dictionary of Words & Phrases, London: Sweet & Maxwell, 4th Edn

3. Paruck, P.L., (1939) The Indian Succession Act being Act No XXXIX of 1925, Bombay: N.M.Tripathi Ltd 2nd Edn p 294

Statutes

1. Law Reform Act (cap 26) sections 2(1), 4(5), 5(2)

2. Indian Succession Act 1865 sections 190, 187,191, 331

3. Indian Succession Act 1925 section 213

4. Fatal Accidents Act (cap 32) sections 4, 7

5. Workmen’s Compensation Act (cap 236)

6. Civil Procedure Rules (cap 21 Sub Leg) order VII rule 4; order XXXI rule 1(1)

7. Law Reform Act (Miscellaneous Provisions) 1934 [UK]

8. Carriage by Air Act 1932 [UK]

9. Law of Succession Act (cap 160) section 82

10. Application to Natives of the Indian Acts Ordinance 1903

11. Amendments to Applied Indian Acts Ordinance No 10 of 1907

12. Indian Acts (Amendments) Ordinance (cap 2) section 9(1) (Revised Edition Laws of Kenya, 1948)

13. Probate and Administration Act 1881[INDIA]

14. Constitution of Kenya section 26

15. Civil Procedure Act (cap 21) section 2

16. Trustee Act 1850 [UK]

17. East Africa Order in Council 1897

18. Administration of Estates Act 1925 [UK]

Advocates

Mr Inamdar for Appellant 

Mr Mbogholi-Msagha for Respondent

Mbelle v Republic

Court of Appeal, at Mombasa July 23, 1984

Kneller, Hancox JJA & Chesoni Ag JA

Criminal Appeal No 45 of 1984

(Appeal from the High Court at Mombasa, Bhandari J)

Evidence - hearsay evidence - dying declaration - admissibility of - whether safe to base conviction solely on dying declaration - how dying declaration received by court- Evidence Act (cap 80) section 33(a)

Evidence - voice recognition evidence - admissibility of - how such evidence received by court.

Sentencing - severity of sentence - manslaughter - offence of – accused killing deceased with knife after previously arming himself - sentence of imprisonment for six years - whether sentence excessive.

The appellant was charged in the High Court with the murder of Joseph Mukunde, the deceased, who was his brother-in-law, and after trial, he was convicted of the lesser offence of manslaughter and sentenced to six years’ imprisonment. The evidence given against the appellant was (inter alia) that on the material night, the deceased, who had been at his home with his family, had gone to answer a knock at the door. In her committal statement, the deceased’s wife, Stella, stated that she recognised the voice of the caller as that of the appellant and that she had heard the deceased cry out:

“Stella, I have been killed by your brother with a knife”.

On appeal against the conviction and sentence, the appellant’s advocate, among other things, challenged the reception by the trial court of the deceased’s alleged statement and of the alleged identification of the appellant’s voice by the deceased’s wife.

Held:

1. The statement of the deceased as to how he had met his death fell within the ambit of the Evidence Act (cap 80) section 33(a) as a dying declaration which was admissible and it had been rightly taken into consideration by the trial court.

2. It would be unsafe to base a conviction solely on a dying declaration and there is a necessity of caution inherent in the reception of this kind of evidence.

3. Once a dying declaration has been received in evidence, the court will have to establish that the declarant did in fact recognize the accused person as his assailant.

4. In dealing with evidence of identification by voice, the court should ensure that:

a) The voice was that of the accused;

b) The witness was familiar with the voice and recognized it;

c The conditions obtaining at the time it was made were such that there was no mistake in testifying to what was said and who had said it.

5. In this case, there existed other evidence which established a strong case against the appellant and the evidence of the identification by voice and the dying declaration, which in any case was properly received by the trial court, only served to augment that other evidence.

6. The appellant had committed a serious crime with a deadly weapon with which he had previously armed himself and therefore the sentence of six years’ imprisonment for manslaughter was not excessive.

Appeal dismissed.

Cases

1. Republic v Tyson Mombasa High Court Criminal Case No 20 of 1983 (unreported)

2. R v Turnbull (1976) 63 Car 132; [1976] 3 All ER 549

3. Oketh Okale v Republic [1965] EA 555

4. R v Eligu s/o Odel and another (1943) 10 EACA 90

5. Tuwamoi v Uganda [1967] EA 84

Statutes

1. Penal Code (cap 63) sections 204, 205

2. Evidence Act (cap 80) section 33(a)

Advocates

Mr Prinja for Appellant

Mr Metho for Respondent

Baya v Republic

Court of Appeal, at Mombasa July 18, 1984

Kneller JA, Chesoni & Nyarangi Ag JJA

Criminal Appeal No 30 of 1984

(Appeal from the High Court at Mombasa, Bhandari J)

Criminal Practice and Procedure - charge - manner of stating charge to the accused persons - plea taking - recording of pleas - equivocal pleas - effect of - pleas when there is a joinder of accused persons - whether one accused person can plead on behalf of his co-accused.

Criminal Practice and Procedure - plea - plea taking - equivocal plea - effect of - accused pleading for himself and co-accused - whether such plea unequivocal.

The two appellants were initially charged with murder contrary to section 204 of the Penal Code (cap 63). This was later reduced to manslaughter contrary to section 205 of the Penal Code. The first appellant pleaded to the new charge saying “We killed him but that was not intentional” after which it appeared from the record of the case that the trial court entered a plea of guilty to the charge for both accused persons. The appellants appealed.

Held:

1. The charge and all its essential ingredients must be explained to the accused in his vernacular or some other language that he understands and the accused’s own words in reply should be correctly translated into English and then carefully recorded. If the words are an admission of a plea of guilty should be recorded.

2. The first appellant’s reply to the charge was equivocal and did not amount to a plea of guilty.

3. There was nothing on the record to show that the second appellant admitted or denied the charge and there was no ground whatsoever for entering a plea of guilty against him.

4. The trial was unsatisfactory and full of irregularities occasioning injustice which are not durable under section 382 of the Criminal Procedure Code. The proper order in such circumstances is to order a retrial. The irregularities in the trial occasioned a failure of justice which was not curable under section 382 of the Criminal Procedure Code (cap 75).

5. An order for retrial is the proper order to make where an accused person has not had a satisfactory trial.

Appeals allowed.

Cases

1. Adan v Republic [1973] EA 445

2. Matu s/o Gichimu v Republic (1951) 18 EACA 311

3. Fatehali Manji v Republic [1966] EA 343

4. R v Vashanjee L Dossani (1946) 13 EACA 150

5. Mwangi v Republic Criminal Appeal No 132 of 1983; [1983] KLR 522

Statutes

1. Penal Code (cap 63) sections 202, 204, 205

2. Criminal Procedure Code (cap 75) sections 136(a), 207, 382

Wakf Commissioners v Mohamed Bin

Umeya Bin Abdulmaji Bin Mwijabu

Court of Appeal, at Mombasa February 23, 1984

Kneller, Hancox JJA & Nyarangi Ag JA

Civil Appeal No 83 of 1983

(Appeal from the High Court at Mombasa, Bhandari J)

Civil Practice and Procedure - originating summons - institution of suits by - law and practice relating to and the scope of originating summons - type of matters to be raised and determined by the procedure of originating summons - factors to be considered in assessing the use and applicability of the originating summons procedure.

Costs - order for - factors to be considered when awarding costs – when the successful party allowed the unsuccessful party to pursue a wrong course - assessment of costs in such circumstances.

The original suit prior to this appeal was instituted against certain Wakf commissioners by the respondents as the descendants of a deceased person, whose property was vested in the Wakf Commissioners. The suit was begun by way of originating summons filed by the two respondents, who claimed mismanagement and lack of prudence in the administration of the estate by the Commissioners. At the hearing, the Commissioners, now the appellants, raised a preliminary objection to the effect that the issues raised by originating summons were not suitable to be tried by this form of procedure and that the matter should be the subject of a suit in the normal way. The preliminary objection was disallowed and the appellants appealed.

Held:

1. Originating summons procedure is intended for settling simple matters without the expense of a full trial and not for serious complex issues.

2. Where complex issues are raised and disputed in an application made by way of originating summons the court should dismiss the summons and leave the parties to pursue their claims by way of an ordinary suit.

3. It is incumbent upon the parties to bring to the attention of the court their respective positions and the failure by the respondents to raise the objections earlier disentitled them to part of the costs even though they were the successful party.

Appeal allowed.

Cases

1. Kulsumbhai v Abdulhussein [1957] EA 699

2. Kibutiri v Kibutiri Civil Appeal No 30 of 1982; [1983] KLR 62

3. Kenya Commercial Bank Ltd v Osebe Civil Appeal No 60 of 1982; [1982] KLR 296

4. Official Receiver v Sukhdev [1970] EA 243

5. Re Sir Lindsay Parkinson & Co Ltd's Trusts Deed, Bishop & Others v Smith & Another [1965] 1 All ER 609, 610

6. Standard Chartered Bank Ltd v Walker & Another [1982] 3 All ER 938

7. In re Giles Ral and Personal Advance Company v Michell (1890) 43 Ch D 391

Texts

Jacob I.H. et al, (Ed) (1991) Atkin’s Encyclopaedia of Court Forms in Civil Proceedings, London: Butterworths 2 Edn Vol XXIX

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rule 10

2. Rules of the Supreme Court [UK] order 28 rule 8(1),(3)

3. Wakf Commissioners Act (cap 109) section 4

4. Civil Procedure Act (cap 21) section 62

Advocates

Mr Magan for Appellant.

Mr Malik for Respondent.

Mugachia v Mwakibundu

Court of Appeal, at Mombasa February 1, 1984

Hancox JA, Chesoni & Nyarangi Ag JJA

Civil Appeals Nos 59 & 89 of 1983

(Appeals from the High Court at Mombasa, Aragon Ag J)

Judicial discretion - exercise of - when Court of Appeal will interfere with judge’s exercise of discretion - discretion to grant adjournment - refusal to grant adjournment resulting in dismissal of suit in absence of claimant - dismissal amounting to visiting advocate’s mistake upon client - whether discretion to grant adjournment was properly exercised.

Civil Practice and Procedure - ex parte proceedings - meaning of - claimant and witness absent on hearing date - claimant’s advocate’s application for adjournment refused - advocate stating to court that he offered no evidence - suit dismissed - whether such proceedings are ex parte proceedings – whether judgment in such proceedings capable of being set aside under Civil Procedure Rules order IXB.

Civil Practice and Procedure - adjournment - granting of - how judicial discretion to grant adjournment is exercised - refusal to grant adjournment resulting in dismissal of suit in absence of claimant - whether discretion to refuse adjournment properly exercised.

The appellant filed a suit against the respondents claiming damages for personal injuries suffered in a traffic accident. On the date of the hearing of the case, which had been confirmed by both parties during a call-over, the appellant’s advocate applied for an adjournment because the plaintiff and his key witness, a medical surgeon who had examined him, were absent. As it turned out, the surgeon had travelled overseas and the appellant had been advised not to attend the hearing on that day by his advocate who had anticipated that the court would not decline his application for adjournment. The court, however, refused to grant the adjournment, observing that the fact that the witness was abroad did not mean that the case could not start and other evidence taken. At that point, the appellant’s advocate stated that he offered no evidence and the judge dismissed the suit with costs. The appellant later applied for the setting aside of the judgment under the Civil Procedure Rules order IX B rules 4 and 8, which application was refused by the same judge. The appellant appealed against both the dismissal of the suit and the dismissal of his application for setting aside of the judgment.

Held:

1. As the appellant’s advocate had, on being refused the adjournment, conducted the case when he stated he had no instructions to withdraw and elected to offer no evidence, that did not constitute ex parte proceedings for which an application for an order to set aside under order IX B rule 8 could be made.

2. The granting of an adjournment involves the exercise of a discretion by the presiding judge and the Court of Appeal will not interfere with the judge’s exercise of the discretion unless he has either acted on wrong principles or exercised his discretion injudiciously.

3. In exercising his discretion to refuse an adjournment, the judge had failed to take into account a consideration which he ought to have taken into account, namely, that by visiting the error of the advocate on the appellant, he denied the appellant the right of having his case heard at all, which should be the last resort of any court.

4. The decision of the judge to refuse the adjournment and dismiss the appellant’s suit involved an incorrect exercise of discretion and, if allowed to stand, would result in grave injustice to one of the parties, in that he would be shut out from a hearing of his case.

5. (Obiter) “The court should indeed discourage unnecessary adjournments of cases set down for hearing but that must not be done at the expense of proper and judicious administration of justice with fairness to the parties”.

Appeal against order dismissing application for setting aside judgment dismissed, appeal against decision dismissing suit allowed.

Cases

1. Sodha v Hemraj (1952) 7 ULR 11

2. Baldevkumar Mohindra v Mathuradevi Mohindra (1953) 20 EACA 56

3. Manubhai Bhailalbhai Patel v Richard Gottfried (1953) 20 EACA 81

4. Abdulrehman v Almaery Civil Appeal No 36 of 1977 (unreported)

5. Abdala Habib v Harban Singh Rajput [1960] EA 325

6. Din Mohamed v Lalji Visram & Co (1937) 4 EACA 1

7. The El Amria (1981) 2 Lloyd’s Rep 123

8. Mbogo and Another v Shah [1968] EA 93

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order IXB rules 4, 8

Advocates

Mr Jiwaji for Appellant

Mr Satchu for Respondent

Haji v Marair Freight Agencies Ltd

Court of Appeal, at Mombasa January 31, 1984

Kneller, Hancox JJA & Nyarangi Ag JA

Civil Appeal No 67 of 1983

(Appeal from the High Court at Mombasa, Aragon J)

Evidence - burden of proof - proof of negligence - traffic accident involving two vehicles and cattle - evidence not sufficient to establish negligence - absence of evidence on how to apportion liability - duty of court to make finding - whether court is compelled to apportion blame equally in such circumstances.

Negligence - proof of - assessment of liability - liability for negligence - in the absence of evidence to establish negligence - when speculative inferences can be made.

The appellants were the widows of Ahmed Maow Farah (deceased) who had died in a road accident. They filed a suit in the High Court seeking damages for themselves, their 11 children and the mother of the deceased. The deceased was a passenger in his pick-up which was involved in a fatal accident along the Nairobi-Mombasa road in the middle of the night. The accident occurred in circumstances that were difficult to establish. During the trial which was limited solely to the issue of liability the learned judge did not permit any of the witnesses called by the appellants or respondent to suggest how the accident occurred. As a result the learned judge held that the appellants had not proved the respondent liable. The appellants appealed and during the appeal urged the court to find that the judge had erred in law in not holding that both drivers were equally to blame in the absence of any evidence other than the fact that an accident occurred. Both the parties were not keen to have the matter remitted to the High Court.

Held:

1. The cause of the accident was so speculative that no reasonable or probable inference could be drawn that either driver was at fault. There was no direct evidence that either driver was negligent nor could it be inferred from the circumstances.

2. There was a lack of evidence and not a conflict of evidence and the paucity of evidence was such that any finding would be purely speculative.

3. Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable distribution the blame can be apportioned equally on each. However in this instant case there was no evidence at all to establish that either party was negligent.

4. (Obiter) There can be no doubt that it is the clear duty of a court to arrive at a finding on the facts however difficult the circumstances may be and therefore the learned judge should not have excluded as he did the evidence of the police officer who attempted to give his opinion as to what happened based on his experience as a police officer of over 20 years standing as this may have shed more light.

Appeal dismissed.

Cases

1. Baker v Market Hardborough Industrial Co-operative Society Limited [1953] 1 WLR 1472

2. Wallace v Richards (Leicester) Limited [1953] 1WLR 1472

3. Welch v Standard Bank Ltd [1970] EA 115

4. Lakhamshi v Attorney General [1971] EA 118

Statutes

Fatal Accidents Act (cap 32)

Advocates

Messrs M Satchu & H Aboo for Appellants

Mr B N Georgiadis for Respondents