Joseph Waruinge Njenga V Republic  EKLR
|Criminal Appeal 69 of 1980||26 Mar 1980|
Edward Trevelyan, Zakayo Richard Chesoni
Court of Appeal at Nairobi
Joseph Waruinge Njenga v Republic
Joseph Waruinge Njenga v Republic  eKLR
Joseph Waruinge Njenga v Republic
High Court, Appellate side, Nairobi
26th March 1980
Trevelyan & Chesoni JJ
Criminal Appeal No 69 of 1980
Criminal law - rash or negligent act – charge - rashness and negligence charged in same count - Criminal Procedure Code (cap 75), section 137(b)(i) - Penal Code (cap 63), section 243.
Criminal law - rash or negligent act – conviction - need to state how offence committed - Penal Code (cap 63), section 243.
Criminal law - rash or negligent act - rash – meaning - Penal Code (cap 63), section 243.
Criminal appeal - jurisdiction of appellate tribunal – sentence – ground for altering on appeal - miscarriage of justice.
The appellant was a painter. He had been instructed not to smoke when working with inflammable paint thinner. Nevertheless, one Sunday when working inside a building with thinner and kerosene he lit a cigarette and fire broke out in consequence. He was charged with an offence under section 243(c) of the Penal Code, that he “in a manner so rash or negligent as to endanger human life, omitted to take precautions ... and lit a cigarette .…” The magistrate ruled that the appellant’s action was “full of both rashness and negligence”, convicted him and sentenced him to one year’s imprisonment. The appellant appealed against both conviction and sentence.
The appeal would be dismissed because:
- The enactment constituting the offence (section 243(c) of the Penal Code) stated the offence to be the omission to take precautions, and that the omission might occur by rashness or negligence; accordingly, under section 137(b)(i) of the Criminal Procedure Code the mode of commission of the offence might properly be stated in the alternative in the charge and the charge was not bad for duplicity. Cherere s/o Gukuli v R (1955) 22 EACA 478 considered.
- Although it was sufficient in the case of such a charge that the conviction should record that the accused was guilty as charged, the magistrate ought to have stated which of the particulars had been proved; failure to do so, however, was not a ground for quashing the conviction.
- The appellant had taken a deliberate, unjustifiable risk in lighting a cigarette in complete disregard of the consequences which he knew would be expected to follow; that constituted rashness for the purposes of section 243 of the Penal Code and was the proper basis of the conviction.
- An appellate court would only interfere with a sentence imposed by a trial judge if there had been a miscarriage of justice; there was no miscarriage of justice in awarding a custodial sentence on the fact of this case. Harries v R (1921) 8 KLR 186 applied.
Cases referred to in judgment:
- Cherere s/o Gukuli v R (1955) 22 EACA 478.
- Harries v R (1921) 8 KLR 186, EACA.
- Pope v R  EA 132, EACA.
- Wanjema v The Republic  EA 493, Trevelyan J.
Joseph Waruinge Njenga appealed to the High Court (Criminal Appeal No 69 of 1980) against his conviction and sentence at the Senior Resident Magistrates’ Court, Nairobi, in Criminal Case No 1923 of 1979, for reckless and negligent acts. The facts are set out in the judgment of the court delivered by Trevelyan J.
P Le Pelley and JW Okwach for the Appellant.
J M Bwonwonga State Counsel for the Republic.