John Brown Shilenje v Republic

High Court, Nairobi

4th September 1980

Trevelyan J

Criminal Application No 180 of 1980

Criminal law – trial – venue - transfer to another Court - no fair and impartial trial – test - Criminal Procedure Code (cap 75), section 81(1) (a).

The applicant, a State Counsel, was charged with corruption. He applied for bail on his own bond and, although the Republic’s representative did not oppose the application, the magistrate required a surety. The case was originally fixed for hearing before another magistrate, but was re-allocated and came before the magistrate who heard the application for bail. The applicant applied for the transfer of the case to another magistrate under the Criminal Procedure Code, section 81(1)(a), on the ground that he feared that he would not receive a fair trial before the magistrate who had refused bail on his own bond, whom he had previously known socially when they were both working in the same province, that he had conducted prosecutions before the magistrate and they had from time to time “agreed to disagree” on points of law and practice and that an advocate whom the applicant had wished to represent him had declined to do so on grounds of ill-health after speaking with the magistrate on the phone. At the hearing of the application the applicant added that after the alleged phone call he had pleaded with the advocate to ask the Court to accommodate him on such days as his ill-health prevented him from conducting the case. The advocate, however, denied having made any such phone call.

Held:

The application would be dismissed because the refusal of bail on the applicant’s bond alone could not be construed as a suggestion of bias, their earlier social contact did not preclude the magistrate from trying the applicant fairly and impartially, their “agreeing to disagree” with one another on occasions could not support a reasonable apprehension of partiality, it had not been shown that the alleged phone call had taken place, and (even if it had) the applicant’s subsequent plea to the advocate to take the case negated any apprehension of unfairness on the part of the magistrate; accordingly, the incidents referred to by the applicant whether taken individually or collectively would not have created a reasonable apprehension in any right-thinking person’s mind that a fair and impartial trial might not be had before the magistrate.

Re M S Patel’s Application (1913) 5 KLR 66 and

The Republic v Hashimu [1968] EA 656 applied.

Cases referred to in judgment:

1. Hannam v Bradford City Council [1970] 1 WLR 937 [1970]2 All ER 690, England CA.
2. Metropolitan Properties Co (FGC) Co Ltd v Lannon [1969] 1 QB 577,
3. [1968] 3 WLR 694, [1968] All ER 304, England CA.
4. Patel’s (MS) Application, Re (1913) 5 KLR 66, Hamilton CJ.
5. Republic, The v Hashmu [1968] EA 656, Saidi J.

Motion

John Brown Shilenje applied to the High Court (Criminal Application No 180 of 1980) for an order transferring his trial on a charge of corruption from the Chief Magistrate to another Court. The facts are set out in Trevelyan J’s judgment.

KC Gautama and SA Wako (instructed by Gautama & Kibuchi) for the Applicant.

B Suttill and J Momanyi Bwonwonga (instructed by the Attorney-General).

James Njoroge Kinyanjui v Republic

High Court, Appellate Side, Nairobi

18th June 1980

Trevelyan & Chesoni JJ

Criminal Appeal No 175 of 1980

Criminal law - rash or negligent act – charge - no allegation of rashness or negligence - charge defective - Penal Code (cap 63), section 243.

Criminal law - rash or negligent act - omission to take precautions against danger from animal - probable danger - need to show animal naturally fierce or vicious - Penal Code (cap 63), section 243(d).

Bail - cash bail - return of bail - entitlement to return - imposition of alternative fine or custodial sentence - order that fine be taken out of cash bail - order improper.

A dog in the possession of the appellant bit the complainant. The appellant was charged with “omitting to take precautions against any probable danger from any animal in his possession contrary to section 243(d) of the Penal Code”. The particulars of the offence also referred to the omission to take such precautions and to the fact that the dog had bitten the complainant and occasioned her grievous harm. The appellant was admitted to bail on making a cash payment. At his trial hearsay evidence was admitted to the effect that the appellant’s wife had told the complainant that the dog had a habit of biting women. There was no other evidence that the dog was naturally vicious; but the trial magistrate inferred, from the fact that the appellant’s home was fenced, that the dog was kept to protect the home; and relying on the evidence of what the appellant’s wife was supposed to have said, he convicted the appellant. He imposed a fine of Shs 700 or the alternative of six months’ imprisonment and, without discovering whether the appellant would pay the fine or go to prison, ordered the fine to be taken out of the cash bail. On appeal,

Held:

The appeal would be allowed, because:

1. The charge was defective in that there was no allegation of either rashness or negligence on the part of the appellant and one of these was an essential ingredient of an offence under section 243 of the Penal Code. Njenga v The Republic [1980] Kenya LR 89 followed.
2. In the absence of any evidence that the dog was naturally fierce or vicious, the appellant could not be said to have been negligent (or rash) in omitting to take appropriate precautions against any probable danger. Per curiam. An accused is entitled, when he appears as required, to the return of his cash bail. A magistrate does not have the right, on awarding the alternative of a monetary fine or a custodial sentence, to order the fine to be taken out of the cash bail.

Cases referred to in judgment:

1. Chebuye (Joseph Luliva) v The Republic (unreported) High Court  riminal Appeal No 921 of 1976.
2. Njenga v The Republic [1980] Kenya LR 89, Trevelyan and Chesoni JJ
3. R v Kinumbi s/o Thuo (unreported) High Court Criminal Revision Case No 267 of 1943.

Appeal

James Njoroge Kinyanjui appealed to the High Court (Criminal Appeal No 175 of 1980) against his conviction and sentence for omitting to take precautions against probable danger from an animal in his possession before the Second Class District Magistrates’ Court, Kiambu, in Criminal Case No 2738 of 1979. The facts are set out in the judgment of the court delivered by Trevelyan J.

Advocates

SP Vaid for the Appellant.

Mrs S Chana State Counsel for the Republic.

Festo Wandera Mukando and Michael Kariuki Waweru  v  Republic

High Court, Appellate Side, Nairobi

24th April 1980

Trevelyan & Chesoni JJ

Criminal Appeal Nos 641 and 642 of 1979

Criminal law – information - particulars of offence - inclusion of otiose words - accused not misled - no ground to quash conviction - Coffee Act (cap 333), section 13(1)(a).

Agriculture – coffee – licensing - trading without licence – transacting business - meaning of “transact” - Coffee Act (cap 333), section 13(1)(a).

Criminal law – trial - submission of no case to answer - rejection of submission - undesirability of detailed reasons for rejection.

The appellants did not hold a licence to deal in coffee under the Coffee Act, nor were they exempt from having any such licence. They were approached by a policeman (an agent provocateur) who inquired about purchasing coffee. They produced some coffee and negotiations were commenced. Subject to finalising the price to be paid, a bargain had been struck between the parties just before further police intervened and arrested the appellants. The appellants were charged with transacting business in coffee without a licence, contrary to section 13(1)(a) of the Act. The particulars of the offence alleged that the appellants “transacted a business of sale ... of coffee without being the holders of a current licence ……”, although section 13(1)(a) did not refer to transacting a business of sale (“ ... no person shall ... deal in or transact any business in coffee unless he is the holder of a current licence ...”). The prosecution case was that the transaction alleged was of a business nature rather than a domestic transaction. The appellants were convicted and sentenced. On their appeals against conviction,

Held:

The appeals against conviction would be dismissed, because:

1. The words “of sale” in the particulars of the offence were otiose; but as the appellants had not been misled as to the nature of the charge which they faced, nor confused, embarrassed or prejudiced, there was no ground on which to quash their convictions.
2. The word “transact” meant to conduct or negotiate about, to perform, to do business, to deal with or in, to have dealings, to treat, to have to do, and so on; accordingly, as there had been negotiation and treating between the parties and their arrangements had been frustrated only just before fruition by the intervention of the police, the parties had been transacting business within the meaning of section 13(1)(a) of the Coffee Act and were guilty of the offence charged.

Brewin v Short (1855) 5 E & B 227, Krehl v Great Central Gas Co (1870) LR 5 Exch 289 and Barron v Littman [1952] 2 All ER 548 applied.

Wallis v Lomas (1890) The Times, 10th February distinguished.

Per curiam. It is inadvisable for a trial court to give reasons for holding that an accused has no case to answer (aliter, where a submission of no case to answer is upheld).

Cases referred to in judgment:

1. Barron v Littman [1952] 2 All ER 548, HL.
2. Brewin v Short (1855) 5 E&B 227, 24 LJQB 297; 25 LTOS 159; 119 ER 466.
3. Krehl v Great Central Gas Co (1870) LR 5 Exch 289, 39 LJ Ex 197;23 LT 72.
4. Wallis v Lomas (1890) The Times, 10th February.

Appeals

Festo Wandera Mukando and Michael Kariuki Waweru appealed to the High Court (Criminal Appeal Nos 641 and 642 of 1979) against their convictions and sentences in the Senior Resident Magistrate’s Court, Nairobi, in Criminal Case No 1090 of 1979 for transacting business in coffee without a licence. The facts are set out in the judgement of the court delivered by Trevelyan J.

Advocates

Shadrack Opiyo Arum (instructed by Onyango Otieno & Co) for Festo Wandera Mukando.

Waweru did not appear and was not represented.

F Nabutete State counsel for the Republic.

Charles Mwaniki Kababi v Republic

High Court, Appellate Side, Nairobi

27th March 1980

Trevelyan J

Criminal Appeal No 9 of 1980

Traffic - dangerous driving - causing death by - failure to charge each death separately - no miscarriage of justice.

Criminal law - information - charge - amendment of charge - failure to comply with statutory procedure following amendment - conviction not necessarily invalid - Criminal Procedure Code (cap 75), section 214(1).

Criminal law – sentence - factors affecting sentence - death of victim of crime.

The appellant was charged with causing death by dangerous driving. Three deaths were alleged in one count. However, no objection was raised at the appellant’s trial by his counsel to the fact that there was only one count. The charge was itself amended during the course of the trial and, notwithstanding the mandatory requirements of section 214(1) of the Criminal Procedure Code, the magistrate did not call upon the appellant to plead to the amended charge; nor did she inquire whether the defence wanted any witness recalled. The appellant’s counsel indicated, however, that she had no objection to the amendment. The appellant was convicted and appealed.

Held:

The appeal would be dismissed because:

1. Counsel had not objected to the single charge and it could not have occasioned any miscarriage of justice.
2. Although the provisions of section 214(1) were mandatory, failure to comply with them did not necessarily render the conviction a nullity; each case had to be viewed according to its circumstances and in the present case there had been no possibility of a miscarriage of justice. Observations on the relevance of the death of a victim when sentencing an offender for his crime.

Cases referred to in judgment:

1. Atito v The Republic [1975] EA 278, EACA.
2. Harries v R (1921) 8 KLR 186, EACA.
3. Khalif v The Republic [1973] EA 364, Sir James Wicks CJ and Trevelyan J.
4. R v Eneriko Sempala slo Yowana Batista (1936) 3 EACA 23.
5. Republic, The v Zakaria Shilisia AgweYu [1980] Kenya LR 62, CA.
6. Uganda v Khimchand Kalidas Shah [1966] EA 30, EACA.

Appeal

Charles Mwaniki Kababi appealed to the High Court (Criminal Appeal No 9 of 1980) against his conviction and sentence for causing death for dangerous driving in Traffic Case No 3190 of 1979 in the acting Resident Magistrate’s Court, Nairobi. The facts are set out in the judgment.

Advocates’

MTA Malik for the Appellant.

JM Bwonwongwa for the Republic.

Charles Jim Wachira, Joseph Thumbi and Osman Mukiri v Republic

High Court, Appellate Side, Nairobi 27th November, 10th December 1979

Trevelyan & Hancox JJ

Criminal Appeal Nos 588, 589 and 596, respectively, of 1979

Theft – robbery – assault with intent to steal with violence – charging offence – use of statutory words – Penal Code (cap 63), section 297.

Criminal law – evidence – corroboration - Retracted confession - corroboration not essential by reason of contents and manner of challenge.

Criminal law – accomplice - common purpose - abandonment of common purpose – intention – opportunity to dissuade fellow accomplice from acting not taken – escape from scene of crime.

Criminal law – trial - reference to defendant - co-defendants – desirability of avoiding reference only by number.

C, O and J raided a store in broad daylight with intent to steal money; C was armed with a pistol and ammunition. As they entered the store C told I (who was inside) to lie down; as he did not do so, C shot him with his pistol. Mrs M (a shop assistant) was also shot before the gang decided to leave, their plan having been foiled; as they were escaping one of them shot at and wounded T. O subsequently made a statement to the police in which he said that when C drew the pistol and fired at I he (ie O) did not wait to see the result but ran back to the get-away vehicle. The statement, however, was not as damning to O as might have been expected had it been fabricated by the police with intent to secure O’s conviction; moreover, it contained details which were not known to the police. C, O and J were charged with “being armed with a pistol and with intent to steal, jointly attempted to steal money from Mrs M and at or immediately before or immediately after the time of the attempted robbery wounded Mrs M, T and I”. At their trial O denied having made the statement to the police and claimed that, having been beaten and slapped at the police station, he had been forced to sign a document which had been prepared by someone else. Although a police inspector was cross-examined about the statement, no reference was made in cross-examination to the alleged beating or slapping. The magistrate ruled that the statement was admissible, that what it said was, true and that it was corroborated by the evidence of other witness. C, O and J were convicted and appealed.

Held:

Dismissing the appeals,

(1) although it was desirable that the offence of attempted robbery should be charged in the actual words of section 297 of the Penal Code and although the fact that T had been wounded should not have been referred to in the charge as he was wounded in the course of the escape after the proposed robbery had failed, the errors in the form of the charge did not in the circumstances prejudice the appellants nor did they constitute a failure of justice. Dictum of Lord Morris of Borth-y-Gest in Director of Public Prosecutions v Merriman [1972] 3 All ER 42, 47, and Abubakali v Uganda [1973] EA 230 applied. Gakuu Macharia v The Republic, page 264, ante, approved.

(2) There was sufficient corroboration of O’s statement to the police to justify the magistrate’s reliance on it; even had there not been, the magistrate would have been entitled to rely on it by reason of its contents and the manner in which it had been challenged. R v Wanjerwa (1944) 11 EACA 93 and Dictum of Lord Hailsham of St Marylebone LC in R v Kilbourne [1973] 2 WLR 254, 263, applied. Sahal Mohammed Hussein v The Republic [1976] Kenya LR 53 approved.

(3) O could not be said to have dissociated himself from the crime as he did not attempt to stop C from using the pistol (which he knew that C had and had seen him draw) and the mere escape to the vehicle did not constitute an abandonment of the joint enterprise. Thiong’o v The Republic [1977] Kenya LR 180 followed. R v Becerra (Antonio) (1976) 62 Cr App Rep 212 applied. Observation on the undesirability in a criminal trial of referring to coaccused in Court only by numbers (such as “the first accused”).

Appeals

Charles Jim Wachira, Joseph Thumbi and Osman Mukiri appealed to the High Court (Criminal Appeal Nos 588, 589 and 596, respectively, of 1979) against their convictions and sentences at the Senior Resident Magistrate’s Court, Nyeri (Criminal Case No 183 of 1979) on a charge of a attempted robbery. At the trial, Charles was accused No 1, Joseph was accused No 3 and Osman was accused No 2. Their appeals were consolidated. The facts are set out in the judgment of the court which was delivered by Trevelyan J.

Cases referred to in judgment:

1. Abubakali v Uganda [1973] EA 230, EACA.
2. Anyangu v The Republic [1968] EA 239, EACA.
3. Balbir Sain Joshi v R (1951) 18 EACA 228.
4. Director of Public Prosecutions v Merriman [1973] AC 584, [1972] 3 WLR 545, [1972] 3 All ER 42 HL.
5. Gakuu Macharia v The Republic, page 264, ante,
6. Gitonga v The Republic (1977) (unreported) Criminal Appeal Nos 529 and 721 of 1976, Trevelyan and Platt JJ.
7. Makin v Attorney-General of New South Wales [1894] AC 57, 63 LJPC 41, 69 LT 778, PC.
8. Mbugua v The Republic (1979) (unreported) criminal appeals 166 and 291 of 1979 High Court; criminal appeal 28 of 1979, CA
9. R v Becerra (Antonio) and John David Codrer (1976) 62 Cr App Rep 212 CA.
10. R v Seaman (1978) 67 Cr App Rep 234, CA.
11. R v Wanjerwa (1944) 11 EA CA 93.
12. Republic, The Kasungu Kombe [1966] EA 69, EACA.
13. Sahal Mohammed Hussein v The Republic [1976] Kenya LR 53,

Trevelyan and Sachdeva JJ

Thiong’o v The Republic[1977] Kenya LR 180 EACA.

The appellants were not represented on the appeal.

John Ndegwa State Counsel for the Republic.

Khalif Haret v Republic

High Court, Appellate Side, Nairobi 14th November 1979

Trevelyan & Hancox JJ

Criminal Appeal No 1 of 1979

Theft - handling stolen goods - stolen goods - belief by defendant that goods stolen – Penal Code (cap 63), section 322.

Court martial – evidence - abstract of evidence - certificate accompanying–failure to supply certificate to defendant with abstract.

Evidence - hearsay – meaning of “hearsay”.

On a charge of handling stolen property (contrary to section 322 of the Penal Code), the prosecution must prove that the goods in question had been stolen and it is not sufficient to establish merely that the defendant believed that the goods had been stolen. Dictum of Lord Reid in Haughton v Smith [1974] 2 WLR 1, 11, applied.

A certificate in prescribed form should accompany an abstract of evidence which is served on an accused person under the Armed Forces Rules of Procedure; if it does not accompany the abstract, however, its absence may be treated as a mere technical breach of the rules, provided that it does not have a prejudicial effect on the accused or the conduct of his defence.

Hearsay evidence is evidence of a fact spoken to by someone who did not himself perceive it of his own senses, but proved by him to have been said by someone else. Hence, what a person not called as a witness has said cannot be received in evidence to prove the truth of the facts stated; although if it is not the truth of what was said that is sought to be proved but only that it was said, the evidence would be admissible.

Appeal

Khalif Haret appealed to the High Court (Court–martial Criminal Appeal No 1 of 1979) against his conviction and sentence by a Court–martial held at 3 KR, Nakuru Barracks, on charges of committing two civil offences, contrary to section 69 (1) of the Armed Forces Act. The facts are set out in the judgment of the court delivered by Hancox J.

Cases referred to in judgment:

1. Davies v Director of Public Prosecutions [1954] AC 378, [1954] 2 WLR 343, [1954]: 1 ALL 507, ER HL.
2. Haughton v Smith [1975] AC 476, [1974] 2 WLR 1, [1973] 3 All ER 1109, HL.
3. Mahon v Osborne [1939] 2 KB 14, [1939] 1 All ER 535, CA.
4. Okethi Okali v The Republic [1965] EA 555, EACA.
5. Pyaralal Melaram Bassan v R [1961] EA 521, EACA.
6. R v Asumani Logoni s/o Muza (1943) 10 EACA 92.
7. R v Gokaldas Kanji Karia (1949) 16 EACA 116.
8. R v Kilbourne [1973] 2 WLR 254, [1973] 1 All ER 440, HL.
9. R v Kipkering arap Koske (1949) 16 EACA 135.
10. R v Thakar Singh s/o Kahir Singh (1934) 1 EACA 110.
11. Tuwamoi v Uganda (1967) EA 84, EACA.
12. Uganda v Kimchand Kalidas Shah [1966] EA 30, EACA.
13. Wanja Kanyoro Kamau v The Republic [1965] EA 501, EACA.

CN Omondi for the Appellant.

Capt Mbewa for the Republic.

Silas Anditi Kojewi v Republic

High Court, Appellate Side, Nairobi

30th October, 5th November 1979

Trevelyan & Hancox JJ

Criminal Appeal No 351 of 1979

Theft – obtaining by false pretences - obtaining credit – ingredients of offence - Penal Code (cap 63), section 316.

The offence of obtaining credit by false pretences (section 316 of the Penal Code) comprises three distinct elements: an incurring of a debt or liability, an obtaining of credit in respect of the payment or repayment of money, and fraud.

R v Jones [1898] 1 QB 119 and Fisher v Raven [1964] R C 210 applied.

Appeal

Silas Anditi Kojewi appealed to the High Court (Criminal Appeal No 351 of 1979) against his convictions on four charges of obtaining credit by false pretences and sentence in the Resident Magistrate’s Court, Nairobi (Criminal Case No 2358 of 1978).

Cases referred to in judgment:

1. Fisher v Raven [1964] AC 210, [1963] 2 WLR 1137, [1963] 2 All ER 389, HL.
2. R v Jones [1898] 1 QB 119, 67 LJQB 41, 77 LT 503, CCR.

The appellant did not appear and was not represented.

J Ndegwa for the Republic.

Gregory Muli Masau and Michael Muisa Masau v Republic

High Court, Appellate Side, Nairobi

31st October 1979

Trevelyan & Hancox JJ

Criminal Appeals Nos 550 and 549 of 1979

Criminal law - wrongful confinement - nature of offence - total restraint of victim – Penal Code (cap 63), section 263.

Criminal law – evidence –witness – credibility - comments by trial judge - comments at conclusion of witness’s evidence – Criminal Procedure Code (cap 75), section 199.

Two appellants handcuffed their victim in the hotel where he worked, forced him outside, demanded money as the price of his release and assaulted him. They were charged, inter-alia, with wrongful confinement contrary to section 263 of the Penal Code and assault. At their trial a clinical officer gave evidence regarding the victim’s injuries; at the conclusion of his evidence, the magistrate stated that the witness was entirely uncreditworthy. The appellants were convicted and appealed.

Held:

Dismissing the appeals on the charges of wrongful confinement and assault:

1. No fixed boundaries were necessary for an offence under section 263 to be committed; it was sufficient for the prosecution to have shown that the victim was totally restrained by the appellants. Bird v Jones (1845) 115 ER 668 applied.
2. (2)Although a magistrate might properly pass remarks on a witness’s demeanour whilst the witness was under examination (ie in accordance with section 199 of the Criminal Procedure Code), he was not similarly entitled to indicate his view as to the credibility of that witness on the sum total of his evidence at that stage in the trial; nevertheless, on the totality of the evidence, the magistrate had been entitled to reach the findings that he did with regard to the assault. Byamungu s/o Rusiliba v R (1951) 18 EACA 236 applied.

Cases referred to in judgment:

1. Bird v Jones (1845) 7 QB 742, 15 LJQB 82; 115 ER 668.
2. Byamungu s/o Rusiliba v R (1951) 18 EACA 236.
3. R v Billas s/o Luhoyo (1947) 14 EACA 137.

Appeals

The appeals of Gregory Muli Masau and Michael Muisa Masau to the High Court (Criminal Appeals Nos 550 and 549 of 1979, respectively) against their convictions before VD Shevde Esq in the Resident Magistrate’s Court Machakos, on counts of robbery; wrongful confinement and assault were consolidated and heard together. They also appealed against sentence. The facts are set out in the judgment of the court delivered by Hancox J.

Advocate

J Ndegwa State Counsel for the Republic.

The appellants were not present, nor represented.

Firdos Verjee v Republic

High Court, Appellate Side, Nairobi

30th October 1979

Trevelyan & Hancox JJ

Criminal Appeal No 809 of 1979

Criminal law – sentence - factors affecting sentence – illness requiring treatment - need for proof that treatment not available in prison -need to bring illness to the attention of trial court.

Appeal

Firdos Verjee appealed to the High Court (Criminal Appeal No 809 of 1979) against her sentence of three years imprisonment ordered by the Senior Resident Magistrate, Nairobi, on her conviction of conspiracy with Joseph Kuria to defraud the Standard Bank . (In a note dated 21st November 1979 appended by Hancox J (with the approval of Trevelyan J) to the transcript of the judgment it is stated that an appeal by Joseph Kuria was  summarily dismissed by Simpson J on 22nd September 1979 (Criminal Appeal No 681 of 1979).

No case was cited in the judgment.

Advocates

S Dhanji for the Appellant.

J Ndegwa State Counsel for the Republic.

Joseph Gitonga Githongo v Republic

High Court, Appellate Side, Nairobi

29th October 1979

Trevelyan & Hancox JJ

Criminal Appeal No 277 of 1979

Theft – information - particulars of offence - allegation that cash stolen – inadequacy of charge where cheque stolen.

Appeal

Joseph Gitonga Githongo appealed to the High Court (Criminal Appeal No 277 of 1979) against his conviction and sentence by TTM Aswani Esq in the Senior Resident Magistrate’s Court, Nyeri (Criminal Case No 1037 of 1978), for stealing by a person employed in the public service. The facts are set out in the judgment of the court.

Case referred to in judgmet:

1. Menzour Ahmed s/o Sheikh Saleh Mohamed v R [1957] EA 386, EACA.

Ole Kaparo for the Appellant.

Mrs S Channa State Counsel for the Republic.