John Wambua Kiiti v Republic

High Court, at Kisumu December 17, 1993

Mango J

Criminal Appeal No 242 of 1992

(From Original Conviction and Sentence in Criminal Case No 2602

of 1989 of the Resident Magistrate’s Court at Winam:

F M O Kadima Esq RM

Criminal Practice and Procedure – acquittal and discharge – where one is acquitted since no evidence has been adduced – whether such acquittal may be made under section 210 of Criminal Procedure Code.

On 14th June, 1990, the accused’s case came up for hearing and the witnesses for the prosecution were not in Court. The prosecution therefore sought adjournment of the case stating that he did not know why the witnesses did not attend. The application was however opposed by the accused’s counsel, whereby the trial magistrate upheld the objection and ordered trial to proceed. Since the prosecutor had no evidence to offer, the accused was acquitted under section 210 of the Criminal procedure Code.

Held:

1. If at the close of the evidence in support of the charge and after hearing such summing up, submission or argument, as the prosecutor and the accused person or his advocate may wish to put forward, if it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall discuss the case and forthwith acquit him.

2. There was no evidence and indeed, the prosecutor had not even started to adduce evidence.

3. An acquittal and discharge under section 210 of criminal procedure code was wrong.

Appeal allowed.

Cases

No cases referred to

Statutes

Criminal Procedure Code (cap 75) sections 87 (a); 210

Advocates

Mr Kiplagat for the Appellant

Henry Opicho Ngome v Republic

High Court, at Kisumu October 15, 1993

Mango J

Criminal Appeal No 218 of 1991

(From the original conviction and sentence in Criminal Case No 57 of 1991

of the Resident Magistrate’s Court at Nyando: Kiarie, Esq, RM)

Criminal Practice and Procedure – recent possession - application of the doctrine – where accused gives reasonable and plausible explanation on how he came to be in possession of items – whether this entitles one to be acquitted.

The appellant was convicted of burglary and stealing contrary to section 304(1) and section 279 of the Penal Code.

The evidence was that on 3rd/4th January, 1991 in Muhoroni township Gundesia Atieno, had her house broken into when she was not in and property worth Kshs 11,251/- stolen therein.

On early morning of 4th January, 1991 one Moses Odembo was arrested with some suspected stolen property, which was identified by complainant on 6th January, 1991, as part of her stolen property. The appellant was found with part of property identified as belonging to complainant. He had a post office certificate of posting which later led to the delivery of some property appellant had posted to some lady, whole of which was part of complainant’s property.

The defence contended that the said property found in possession of appellant were pledged with him by Odembo on the 4th January, 1991 at 5 am, for a loan of Kshs 150 which he alleged was to be refunded after 3 days, but Odembo did not. So he contended that he decided to send the property to his mother.

Held:

1. The reasoning that the appellant posted clothes to his mother on 11th January, 1991 after only 6 days of purported delivery by Moses Odembo, would not alone lead to the inference that the appellant took part in the theft.

2. An explanation which is reasonable and plausible on the part of the accused on how he came to be in possession of the items, would entitle him to be acquitted.

3. The explanation by the accused that Odembo went to his house at 5 am was plausible and unreasonable.

4. The section of the law cited was wrong, it was mandatory to specify which section was intended.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 279, 304 (1)

Advocates

Mr Karanja for the Respondent/State

Enock Otieno  Otieno & 4 others v Republic

High Court, at Kisumu September 17, 1993

Mango J

Criminal Appeal Nos 111, 112, 113, 114 & 115 of 1993

(From Original Conviction and Sentence in Criminal Case No 70 of

1993 of the Chief Magistrate’s Court at Kisumu:

C O Ong’Udi Esq CM)

Evidence – standard of proof – evidence in criminal cases – where the prosecution fails to prove each and every ingredient in the charge – whether it can be said that the case was proved to the standard of beyond reasonable doubt required in criminal cases.

The appellants in this case were all convicted by the lower court of the offence of transporting petroleum products without a licence contrary to rule 7 (1) of Petroleum Rules as read with section 7 of the Petroleum Act cap 116 of the Laws of Kenya and failure to exhibit the words “motor spirit kerosene” contrary to rule 8 (d) as read with section 6 of the Petroleum Act. They were lined and in default, each to serve 1 month in prison.

The defence case was to the fact that the appellants having pleaded not guilty, it was incumbent upon prosecution to prove beyond reasonable doubt that the stuff that formed the subject of the charge was indeed petroleum product, and that there having been no evidence to that effect then the Court should not have assumed that that was a petroleum product.

Held:

1. For the purpose of Petroleum Rules, petroleum is divided into petroleum class A having flashing point below 73F, and petroleum class B having flashing point of 73F or above. The rules apply only to petroleum having flashing point below 150 F and the word ‘petroleum’ shall be construed accordingly.

2. It was obvious that the actual quantity of the stuff was not determined, there was no doubt that it was in excess of the amounts that rule 6 of the Petroleum Rules talks of namely twelve gallons in case of class A and twelve gallons in case of class B.

3. The prosecution failed to prove that the stuff was one to which the rules applied.

Appeal allowed.

Cases

No cases referred to

Statutes

1. Petroleum Rules (cap 116 Sub Leg) rules 3, 6, 7(1); 8(d)

2. Petroleum Act (cap 116) sections 2, 6, 7

Advocates

Mr Ouma & Mr Ombija for Appellant

Mr Kaleya for the State/Respondent

Vincent A Ogutu v Mercantine Co Limited

High Court, at Kisumu August 13, 1993

Mango J

Civil Case No 181 of 1991

Contract – Hire Purchase – where one enters into non-act hire purchase agreement with another – where contract stipulates that subject matter will become his property after payment of last instalment – where one defaults in payment of instalment, leading to repossession of subject matter - whether one has a valid action to claim that the repossession was illegal.

The plaintiff, Mr Vincent A Ogutu entered into a hire purchase agreement with the defendant, Mercantine Co Ltd on 8th December, 1988 for the purchase of a motor vehicle, Reg No KZM 460 – a Peugeot 504 Pick Up. The vehicle was, at a request of the plaintiff, purchased by the defendant, who then hired to the plaintiff at a monthly rental fee of Kshs 8,846/05 after paying the initial deposit. The above instalments were to be paid for 23 months and the final figure of 8886/05 which included the option to purchase fee, was to be paid on the 24th month, after which the vehicle was then to become the property of the plainitff. The vehicle was repossesed on 27th July 1990, whereof it was later gutted down by fire.

It was contended for the defendants that the plaintiff fell in arrears in his payment of the hiring charges and in accordance with the terms of the agreement, repossessed the vehicle which had not yet become the property of the plaintiff.

Held:

1. Until the final instalment was paid and the nominal 40/= option to purchase fee were paid, the vehicle still remained the property of the defendant.

2. The plaintiff had no legal or equitable right over the said vehicle at the time it was seized.

Suit dismissed with costs to the defendant.

Cases

Mohamed, Sheikh Osman v National Industrial Credit (EA) Ltd Civil Appeal No 28 of 1985

 Statues

No statutes referred.

Advocates

Mr Onsongo for Plaintiff.

Mr Siganga for Kibuth for Defendant

Edward Jakoyo Ogutu v Republic

High Court, at Kisumu July 2, 1993

Mango J

Criminal Appeal No 64 of 1993

(From Original Conviction and Sentence in Traffic Case No 224 of

1992 of the Resident Magistrate’s Court at Oyugis:

S N Riechi Esq RM)

Traffic offence - dangerous driving-death by dangerous driving-appeal against a decision of the lower court finding the appellant guilty of running over the deceased-where the appellant had been trying to overtake the deceased who was on a bicycle-where the deceased made a sudden right turn and ran into the appellant-collision killing the deceased instantly-whether the collision was due to the negligence of the appellant-assessment of liability-whether the charge of dangerous driving was proved by the prosecution beyond reasonable doubt.

Criminal Law – dangerous driving – nature of the offence.

Evidence – burden of proof and standard of proof - in offence of dangerous driving - party on who the onus of proof lies – standard of proof in offence of dangerous driving.

The appellant brought the appeal against a decision of the lower court convicting him for the offence of dangerous driving causing death. The prosecution’s case had been that the deceased was riding a bicycle while the appellant was riding a motorcycle heading in the same direction. There was a collision between the two as a result of which both parties sustained injuries which the deceased subsequently died from. It was on that basis that the prosecution charged the appellant with the offence of dangerous driving.

In his defence the appellant had claimed that the deceased while riding his bicycle had swerved into the road in a bid to make a right turn while the appellant was attempting to overtake him. The appellant claimed that he had hooted to alert the cyclist of his intentions but that he still suddenly turned into the road thereby occasioning the collision. There was no dispute that the deceased died from the injuries sustained in the collision.

The issue for determination in the appeal was whether the charge of dangerous driving had proved by the prosecution beyond reasonable doubt.

Held:

1. The fact that there has been a collision as a result of which a person loses his life hardly means that that was some dangerous driving on the part of the one who did not die.

2. Dangerous driving is not an absolute offence. The prosecution must prove that there was some dangerous situation created by the manner of driving of the appellant and that as a result of that dangerous situation an accident was caused.

3. It was incumbent upon the deceased to ensure that all was safe before he decided to turn right. He would reasonably be expected to expect that traffic from behind may be overtaking or intending to overtake him.

4. The charge of dangerous driving was not proved beyond reasonable doubt against the appellant.

Appeal allowed.

Cases

No cases referred to

Statutes

Traffic Act (cap 403) section 46(1).

Samwel Godfrey Otili v Republic

High Court, at Kisumu December 18, 1992

Mango J

Criminal Appeal No 55 of 1991

(From original conviction and sentence in Criminal Case No 120 of 1991  of the Principal Magistrate’s Court at Kisumu

Evidence – corroboration – child’s evidence – whether a child’s evidence needs corroboration before it can form the basis for a conviction.

Evidence – corroboration – sexual offences – whether corroboration is required in sexual offences.

Evidence – corroboration – sexual offences – where there is no corroboration – need for a magistrate to warn himself of the danger of acting on uncorroborated testimony – consequence of the failure of the Court to warn itself.

The appellant was charged and convicted in the lower court with defilement of a girl under fourteen years of age contrary to section 145(1) of the Penal Code. He was convicted and sentenced to 51/2 years imprisonment. He appealed against conviction on the grounds that the complainants evidence was not corroborated.

Held:

1. The unsworn evidence of a child needs corroboration, before a conviction can be founded on it. This being a sexual offence, corroboration was required both as to the act of defilement and the identity of the accused.

2. In sexual offences generally like rape, the trial magistrate should warn himself of the danger of acting on the uncorroborated testimony of the complainant. Having done so, he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If there is no such warning a conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.

3. As a matter of practice, the Court should always warn itself of the danger of convicting on uncorroborated evidence of a child.

Appeal allowed.

Cases

1. Chila v R [1967] EA 722

2. Maganga Msigara v R [1965] EA 471

Statutes

Penal Code (cap 63) section 145(1)

Advocates

Menezes for the Appellant

Karanja for the Respondent

Mayfair Holdings Ltd v Walter Okech Odwar

High Court, at Kisumu December 16, 1992

Mango J

Civil Appeal No 10 of 1991

Employment Law- contract of employment - where there is no written contract between employer and employee - applicable law is employment Act- cap 226

Employment Contract - notice of termination - where an employer gives notice prescribed by law - whether employer is bound to give reasons for termination.

The respondent sued the appellant in the subordinate court seeking compensation for wrongful dismissal, leave severance pay and general damages.

At the conclusion of the trial the Court awarded one month’s pay, four month’s leave payment for the period served and Kshs 50,000/= as general damages.

On appeal it was noted that the respondent though had no written contract of employment was offered one month’s pay in lieu of notice which he claimed was little but later on took.

The respondent further claimed the appellant did not give any reason for terminating his services. Hence he argued that his dismissal was based on the fact that he was physically disabled therefore the same was unlawful.

Held:

1. Every contract of service without reference to time or to undertake a faurney shall, if made to be performed in Kenya be deemed to be a contract terminable by either party at the end of the period of twenty eight days next following the giving of notice in writing. If however the contract provides for a longer period of notice, then that longer period will apply.

2. The respondent herein was entitled to be given at least 28 days notice. He was given one month.

3. Once the terms are complied with, then the employer is not bound to give reasons for the termination and it would be wrong to say that he  did not give reasons and therefore the termination was unlawful.

Appeal allowed

Cases

No cases referred to

Statutes

Employment Act (cap 226) section 14(5)(iii)

Advocates

Mr Wasuna for the Appellant

Mr Olago - Aluoch for the Respondent

Hezron Ndanyi Lidede v Margaret Kamunya Emonde

High Court, at Nairobi June 11, 1992

Mango J

Civil Case No 2084 of 1992

Family law - marriage - whether a person claming to be wife of another has capacity to harass the alleged husband in her alleged and purported capacity as the wife when the issue as to whether they are both legally husband and wife has not been determined.

The plaintiff filed a suit for declaration seeking among other things for the court’s declaration that no valid marriage exists between him and the defendant. He sought an injunction restraining defendant or her agents from harassing him in her alleged purported capacity as the plaintiff’s wife or in any other manner howsoever until the final determination of the suit or until further orders of the court are granted.

Held:

1. A person who is customarily married lacks capacity to contract a statutory marriage with another woman when that first marriage subsists.

2. If one is statutorily married, one is unable to contract a legal and valid customary marriage with another woman.

3. The applicant has established that he is entitled to the injunction to stop the respondent from harassing him that she is his wife until the issue is decided on.

Injunction issued.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rule 2A(1)

Advocates

Shiganga holding brief for Wachira for the Applicant

Chabeba for the Respondent