Criminal Law-murder-self defence-where the deceased was killed with his own knife after attacking the accused-whether this is a complete defence-Penal Code (cap.63), Section 203 as read with Section 204

Isaac Kamau Ndirangu v Commercial Bank of Africa

High Court, at Nairobi

October 8, 2002

Oguk J

Civil Case No 1803 of 1985

Consent Judgments – setting aside consent judgments – grounds for setting aside – circumstances under which a court will interfere with consent judgments – circumstances affording a good ground for varying or rescinding a contract

Civil Practice and Procedure - review – applications for review – grounds for such application – circumstances that must be proved for application to succeed.

The parties entered into a consent judgment. The applicant later made an application, the subject of this ruling, to have the consent judgment set aside and reviewed.

Held:

1. It is well settled law that a consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract, for example, fraud, mistake or misrepresentation.

2. An application for review can only succeed if the applicant proves an error or mistake apparent on the face of the record, discovery of new evidence or any sufficient reason.

3. An application for review on the ground of new evidence will succeed only if the applicant proves that he did not have it in his possession at the time and could not have obtained it despite due diligence.

4. The applicant had not satisfied the court that there was an error or mistake on the face of the record.

5. There was no other sufficient reason to warrant the review sought or the setting aside of the consent judgment.

Application dismissed

Cases

1. Wasike v Wamboko (1982-88) 1 KAR 625; [1988] KLR 429

2. Purcell v FC Trigell t/a Southern Window and General Cleaning Co & another [1970] 3 All ER 671

3. Brooke bond Liebig (T) Ltd v Mallya [1975] EA 266

 4. Shah v Dharamchi [1981] KLR 560

 Statutes

1. Civil Procedure Rules (cap 21 Sub leg) order XLIV rule 1; order L rule 1

 2. Civil Procedure Act (cap 21) section 3A

Criminal practice and procedure-robbery with violence-the appellant was convicted on 10 counts of the offence and sentenced to death-appeal against conviction and sentence-whether the evidence adduced was sufficient to secure a conviction on all counts-whether the prosecution had proved its case to the required standards in law-whether the appeal had merit-Penal Code section 296 (1) (2)

Alfred Mochama Nyabena & another v Republic

High Court, at Nairobi May 8, 2001

Oguk J

Criminal Appeals Nos 189 & 281 of 2001 (Consolidated)

(From Original Conviction and Sentence in Criminal Case

No 1365 of 2000 of the Senior Resident Magistrate’s

Court at Nairobi, C Githua (Mrs))

Constitutional Law – Attorney General – powers of the Attorney General to institute, take over and discontinue criminal proceedings – decision of a constitutional court declaring a prosecutorial body, the Kenya Anti-

Corruption Commission (KACA), unconstitutional – whether the decision meant that pending criminal prosecutions instituted by the body were to be terminated and accused persons acquitted – whether the Attorney General had the residual power to take over the proceedings and proceed with them as he deemed fit in the exercise of his powers – whether it was proper for State Counsel to take the place of KACA’s representative in such proceedings – Constitution of Kenya section 26

The appellants had been in the Nairobi Chief Magistrate’s Court with various offences under the Prevention of Corruption Act (Cap. 65) in a prosecution mounted by the Kenya Anti-Corruption Authority (KACA).

They brought an ex parte application before the trial court arguing that because a Constitutional Court had delivered a ruling in a separate case in which it declared KACA unconstitutional, then their prosecution should be terminated as KACA was no longer capable of further prosecuting them. Further, they asked the court to order for the release of certain exhibits which had been taken from them by KACA officers at the time of their arrest.

In her ruling on the application, the Senior Resident Magistrate (Mrs. C.Githua) considered the fact that the decision of the Constitutional Court had not emanated from a reference of the trial court and secondly, that the decision did not direct that all pending cases which were being prosecuted by KACA were to be terminated and the accused persons acquitted. The appellant’s application was therefore dismissed, thus prompting this appeal.

Held:

1. Even though KACA was declared by the Constitutional Court to have been unconstitutionally established, the powers conferred on the Attorney General under sections 26(3) of the Constitution to institute, take over and discontinue criminal proceedings were not challenged and they could not be successfully challenged before any court.

2. The proper respondent in every criminal appeal is the Republic, represented by the Attorney General or someone instructed by him. The appeals in this case having been filed against the Republic, the Attorney General was therefore entitled to representation and Senior Principal State Counsel was properly before the Court in the appeals even though the prosecution in the court below was commenced by KACA with the consent of the Attorney General.

3. The trial magistrate had correctly followed and interpreted the decision of the Constitutional Court. The decision did not state that cases where

KACA was the prosecuting body were to be terminated and accused persons acquitted. The Constitutional Court left room for the Attorney General to take whatever steps he deemed necessary with regard to the pending cases in the exercise of his powers under section 26 of the Constitution.

Appeals dismissed.

Cases

Riddlesbarger v Robson [1959] EA 841

Statutes

1. Prevention of Corruption Act (cap 65) section 3(1), 3(3)(a)(i)

2. Constitution of Kenya sections 67(1), 84(5)

Advocates

Mr Nyandieka for the 1st Appellant.

Mr Avedi for the 2nd Appellant.

Mr Okumu for the Respondent.

Law Society of Kenya v Chesoni

High Court, at Nairobi April 11, 2000

Oguk J

Miscellaneous Civil Cause No 100 of 1999

Judicial officers – immunity – immunity of judicial officers – whether judicial officers may be challenged personally for their judicial decisions.

Judicial Review – available against inferior tribunal – whether Chief Justice is such inferior tribunal.

The Law Society of Kenya moved the Court ex-parte under order 53 of the Civil Procedure Rules, the Law Reform Act and all enabling powers and provisions of the law seeking an order of mandamus directed to the Chief Justice requiring him to represent to the President of the Republic of Kenya that the question of removing a certain judge of the High Court ought to be investigated so as to facilitate the appointment by the President of a tribunal to enquire into the allegation of misbehaviour made against the judge.

Held:

1. An order made by the Hon Chief Justice in a judicial capacity cannot be said to have been made by an inferior court or authority to which the Court has powers to direct otherwise.

Application dismissed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order LIII

2. Law Reform Act (cap 26)

3. Penal Code (cap 63) sections 108, 117

4. Constitution of Kenya sections 26(4); 62(5)

5. Judicature Act (cap 8) section 6

[Ruling]-Civil practice and procedure-stay of execution-application for stay of execution of decree and Judgment pending appeal--where the defendant applicant had already paid part of the decretal sum-claim by the applicant's counsel that in the event of a successful appeal on quantum, they might not be able to recover any money from the Respondent/Plaintiff once it had been paid out-whether the application could be allowed- Order 41 rule 4 of the Civil Procedure Rules

TORT – negligence – plaintiff filed suit as the administratrix of the estate of the deceased – where the deceased, aged 28 years, had been involved in a fatal road accident-where the deceased left behind dependants a wife and a child– loss of future earnings – assessment of liability – quantum of damages- Judgment for the Plaintiff against the Defendants jointly and severally for Kshs. 2,578,910