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.

Held:

The appeal would be dismissed because:

1. 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.
2. 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.
3. 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.
4. 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:

1. Cherere s/o Gukuli v R (1955) 22 EACA 478.
2. Harries v R (1921) 8 KLR 186, EACA.
3. Pope v R [1960] EA 132, EACA.
4. Wanjema v The Republic [1971] EA 493, Trevelyan J.

Appeal

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.

Advocates

P Le Pelley and JW Okwach for the Appellant.

J M Bwonwonga State Counsel for the Republic.

Abdulrehman v Almaery

Court of Appeal, at Nairobi

 May 25, 1978

Trevelyan Ag CJ, Wambuzi & Law JJA

Civil Appeal No 36 of 1977

(Appeal from the High Court at Nairobi, Madan J)

Civil Practice and Procedure - adjournment of suits - exercise of discretion - refusal to grant adjournment - power of the appellate court to interfere with refusal - appeal against refusal or order for adjournment - factors to be taken into consideration - principles applicable in applications for amendment.

The plaintiff filed a suit and on the day of the hearing the defendants sought an adjournment to enable them contact one of their witnesses who was absent. The court refused the adjournment. The issue of appeal is whether or not the adjournment should have been granted and whether the appellate court can interfere with the exercise of discretion of the trial court.

Held:

1. The refusal to grant an adjournment is within the discretion of the trial court and the appellate court cannot interfere with this discretion unless it has not been incorrectly exercised.
2. An adjournment ought to be granted as long as, it is not unreasonable, no apparent miscarriage of justice is likely to arise and extra expense occasioned by the adjournment can be compensated by way of costs.
3. An adjournment should be granted if refusal will cause the possibility of an injustice.

Appeal allowed. Order for retrial.

Cases

1. Balderkumar Mohindra v Mathuraderi Mohindra (1953) 20 EACA 56
2. Manubhai Bhailalbhai Patel v Richard Gottfired (1953) 20 EACA 81

Statutes

No statute referred to.