Muiruri v Republic

Court of Appeal, at Mombasa August 8, 2003

Kwach, Githinji & Waki JJ A

Criminal Appeal No 84 of 2003

(Appeal from a conviction and sentence of the High Court

at Mombasa, Hayanga J, dated 23rd October 2001 in

High Court Criminal Case No 1 of 1990)

Criminal Practice and Procedure – assessors – where legal requirement for number of assessors not met–– where assessors appear alternately.

Criminal Practice and Procedure – retrial - when a retrial may be ordered - where accused in custody for a long time - whether retrial proper.

The trial record in this case indicated that during the trial less than 3 assessors appeared during the trial.

The trial record revealed that though three assessors had been selected, all three were present and participated in only two sessions. The records further revealed that the assessors appeared alternately and as they desired.

The state counsel applied for a retrial while the appellant through his advocate opposed the order for retrial and called for an acquittal citing the long period elapsed between arrest and the hearing of this appeal i.e. 15 years.

Held:

1. Unless valid and sufficient reasons are advanced and a considered ruling made on record for proceeding with a trial before the High Court with the assistance of two assessors, there must be three assessors as provided by the law.

2. To compound the irregularity, the order appeared to have been abandoned or forgotten since the assessors thereafter appeared alternatively as and when they desired.

3. Generally whether a retrial should be ordered or not must depend on the circumstances of the case.

4. It will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Other factors include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the appellant, whether the mistakes leading to the quashing of the conviction were entirely the prosecution’s making or the court’s.

5. By the time the trial commenced effluxion of time had taken its toll and several material witnesses had died. It would be an act of futility for the court to order a retrial after a period of 15 years.

Trial a nullity, conviction quashed, retrial refused.

Cases

Manyala, Zedekiah Ojuondo v Republic Criminal Appeal No 57 of 1980

Statutes

Criminal Procedure Code (cap 75) sections 262, 263, 298

Advocates

Mrs Mwangi for the Respondent.

Mr Kitui for the Appellant.

Lucy Momanyi t/a L.N. Momanyi & Company v Nurein M.A. Hatimy & another

Court of Appeal, at Mombasa August 8, 2003

Omolo, Lakha & Keiwua JJ A

Civil Appeal No 139 of 2002

(An appeal from a Ruling and Preliminary Decree of the High Court at

Mombasa (Ang’awa J) dated 14th October, 1997 in HCCC No 46 of 1997)

Advocate - negligence of advocate - where allegation of negligence and misrepresentation is made against an advocate - requirement to grant unconditional leave to defend - where the allegation precedes and is meant to found a claim for a new sum - where such new sum may not be sustainable in the plaint - manner in which the allegations must be proved.

Civil Practice and Procedure - admissions - applying for judgment on admission - nature of the admission - principle as to simplicity in meaning - nature of the principle - whether judgment on admission can be entered for recovery of that which is neither sued nor prayed for in the plaint - order XII of the Civil Procedure Rules (cap 21 Sub Leg).

Civil Practice and Procedure - summary judgment - application for summary judgment - where triable issues are disclosed in the application - whether the Court may exercise its discretion to award summary judgment - summary judgment in mixed claims - when summary judgment can be entered with regard to such claims.

The appellant had unsuccessfully resisted a suit in which the respondents claimed that she had misrepresented to them that the suit premises was free from any encumbrances and available for immediate transfer and registration. The respondents were alleged to have been induced by such misrepresentation to part with the purchase price of the suit premises and Kshs 60,000/= being the agreed advocates fees. The appellant was also alleged to be liable to the respondents for general damages for anxiety caused to the respondents by unethical behavior consisting of gross negligence as the respondent’s advocate.

In her defence the appellant disclosed that the sum the respondents paid as her fees was Kshs 80,000/= (admitted sum) as opposed to the sum of Kshs 60,000/= claimed in the plaint. She denied allegations that she had been negligent in her conduct or that she had made any misrepresentation.

The appellant further contended that the defence she filed on record raised serious triable issues which could not be tried on affidavit evidence adduced by the respondents. She also averred that it would be a grave injustice to enter summary judgment against her where the allegation was that of negligence, due to the deposit of an amount that had not been ascertained.

Held:

1. Summary judgment or judgment on admission should not be entered for recovery of that which is neither sued nor prayed for in the plaint. A plaint has to be amended to substitute the admitted sum for that sued for.

2. Where allegations of negligence and misrepresentation are made against an advocate, leave to defend should be granted unconditionally if the defence is not frivolous and discloses serious triable issues.

3. Where allegations of negligence and mispresentation precede and are meant to found a claim for the refund of a new sum which might not be sustainable in the plaint and without proof of the allegations, those allegations must be proved through oral as opposed to affidavit evidence.

4. For order XII of the Civil Procedure Rules to apply there must be admission of facts, which entitle the plaintiff to apply for judgment without waiting for determination of any other question between the parties.

5. Admissions have to be plain and obvious. The admission must have no room for doubt that the parties passed out of the stage of negotiations onto a definite contract.

6. When it comes to admission, the principle as to simplicity in meaning is the same in contract as it is in tort.

7. If triable issues have been disclosed in an application for summary judgment, there is no discretion to be exercised. The only thing left for the Court to do is to grant unconditional leave to defend where the defendant is able to raise a prima facie triable issue.

8. Summary judgment can only be entered in mixed claims where one of those claims is liquidated and can be dealt with separately without violating the other claims.

Appeal allowed.

Cases

1. Choitram v Nazari [1984] KLR 327

2. Osodo v Barclays Bank International Ltd [1981] KLR 30

3. Trust Bank Limited & Michael Muhindi v Investec Bank Ltd Civil Appeals Nos 258 & 315 of 1999

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XII rule 6; order XXXV rule 1

Advocates

Mr Mabeya for the Appellant.

Mr Master for the Respondent.

Roy Richard Elirema & another v Republic

Court of Appeal, at Mombasa August 5, 2003

Omolo, Tunoi & Lakha JJ A

Criminal Appeal No 67 of 2002

(Appeal from a Judgment of the High Court of Kenya at Mombasa,

Mr Justice Waki & Commissioner Tuthi dated 6th November 2001 in

High Court Crimnal Appeal No 271&273 of 2000)

Criminal Practice and Procedure – conduct of prosecution – by person unauthorized - prosecution conducted by a police officer below the rank of Assistant Inspector - whether such person competent – whether proceedings proper - Criminal Procedure Code (cap 75) section 85.

Criminal Practice and Procedure – retrial–– where previous prosecution conducted by unauthorized person – whether proper to order retrial.

The appellant was making his third appeal against a conviction on charges of robbery with violence. The grounds of appeal were that inter alia, the trial magistrate erred in law in permitting the conduct of the prosecution by unauthorized persons i.e two police officers of the rank of Corporal.

The prosecution was also partly led by a police officer of the rank of Inspector. Other grounds were that the magistrate erred in law and in fact in granting herself jurisdiction to hear the cases contrary to section 5 of the Penal Code. This ground was based on the fact that appellants, who were Tanzanian nationals, were charged with committing a crime outside the boundaries of Kenya, against persons not shown to be Kenyan citizens, traveling in a Somali vehicle outside Kenya.

Held:

1. Going by the provisions of the Criminal Procedure Code it is clear that the Attorney General had no power to appoint a police officer below the rank of Assistant Inspector Public Prosecutor.

2. Corporals Kamotho and Gitau were clearly not entitled to act as Public Prosecutors.

3. The trial of the appellants in which Corporals Kamotho and Gitau purported to act as Public Prosecutors had to be declared a nullity.

4. Taking into consideration the question of jurisdiction of the Kenyan courts, the fact that it is unknown whether the witnesses were still available and the fact that the prosecution was entirely responsible for the mistakes that led to the quashing of the convictions, it would not be just to subject the appellants to a fresh trial.

Conviction quashed, sentenced set aside and retrial refused.

Cases

1. Uganda v Milenge & another [1970] EA 269

2. Mubito v R [1961] EA 244

Statutes

1. Penal Code (cap 63) section 296(2)

2. Court of Appeal Rules (cap 9 Sub Leg) rule 63(2)

3. Criminal Procedure Code (cap 75) sections 85; 85(2); 86; 88(1); 202

4. Police Act (cap 84) section 3(2)

5. Constitution of Kenya section 77(1)

Advocates

Mr Bryant for the Appellant.

Gabriel Kamau Kinuthia v Republic

Court of Appeal, at Mombasa January 24, 2003

Tunoi, Owuor & Keiwua JJ A

Criminal Appeal No 207 of 2002

(Appeal from the Judgment of the High Court at Mombasa (Tutui CA)

dated 28th February 2002 in HC Cr Appeal No 267 of 2002)

Evidence – witness – evidence of a witness – where the court doubts the integrity of a witness – whether the court can accept evidence of that witness.

The appellant was convicted of the offence of defilement. The appellant challenged the conviction alleging, inter alia, that he had been framed as the one of the main witnesses in the case also had a similar criminal case and he had a marital relationship with the mother of the complainant child. During cross-examination by the appellant, the mother stated that there was no conspiracy between the witness and herself to frame the appellant.

Held:

1. In a criminal case, a witness should not create an impression in the mind of the court that he is not a straightforward person. If a witness raises suspicion about his trustworthiness or does or says something which indicates that he is a person of doubtful integrity, he will be deemed unreliable which makes it unsafe to accept his evidence.

2. Upon a proper consideration of the evidence on record, the evidence of the mother of the complainant was untrustworthy.

3. It would be unsafe to allow the appellant’s conviction to stand.

Appeal allowed.

Cases

Ndungu Kimanyi v Republic [1979] KLR 282

Statutes

1. Penal Code (cap 63) section 145(1)

2. Children Act 2001