yet another example still testing this system

Tort-negligence-road traffic accident-appeal-appeal raising primarily the issue of award of special damages claimed by and awarded by the learned judge in the superior court-reassessment of liability-whether the appellant was entitled to the award issued

Wallace Njuguna Muthiga v Republic

High Court, at Nairobi May 22, 1987

Gicheru J

Criminal Appeal No 1149 of 1986

(Appeal from the Resident Magistrate’s Court at Githunguri, JBN Muturi, Esq)

Criminal law – willful and unlawful damage to property – Penal Code (cap 63) section 339(1) - ingredients of the offence – need for prosecution to prove that the damage was both willful and unlawful.

Criminal law – defences in criminal law – use of force in defence of property – whether asserting right of ownership of land against trespasser amounts to defence of property – relevant law – Penal Code (cap 63) section 17.

The appellant was the registered owner of a piece of land on which the complainant had previously been farming. A panel of elders which heard a dispute involving the two parties decided that the complainant should vacate the land after he had harvested his crops.

Before the expiry of the time by which he was required to vacate, the complainant planted more crops on the land. The appellant, being exasperated after the police referred his complaint to the Assistant Chief, erected a new wired fence around the land. In doing this, he destroyed an existing fence and hedge and also some of the crops.

The appellant was convicted and sentenced in a Resident Magistrate’s Court for the offence of willfully and unlawfully damaging property contrary to section 339(1) of the Penal Code (cap 75). He was also ordered to pay the complainant the estimated value of the damaged property. The appellant had raised the defence of reasonable use of force in defence of his property but the trial magistrate found that even though the appellant was enforcing his right ownership of the land, he had not acted reasonably.

The appellant appealed.

Held:

1. Asserting one’s right of ownership and possession to some property against a trespasser amounts to defence of such property.

2. Section 17 of the Penal Code (cap 63) makes provision for the application of the principles of English Common Law in determining criminal responsibility for the use of force in the defence of property.

3. The law in relation to a trespasser is that if a trespasser peaceably enters land or is on land, the person who is in or entitled to possession may remove him from the land, using no more force than is reasonably necessary.

4. Having accepted that the appellant was the proprietor of the land, the trial magistrate had to decide whether in asserting his right to his proprietorship, the appellant had used more force than was necessary against the complainant who was a trespasser. This issue was to be determined on no more than the circumstances of the case, the available evidence and the relevant law.

5. Whereas damage to the property was willful, it was necessary to show that it was unlawful, in that the appellant in the exercise of his claim of right to the land acted mala fides and did more damage than he could reasonably have supposed to be necessary for the assertion of such right. This was a question of facts to be gathered from the evidence.

6. The evidence available before the trial magistrate did not establish these facts or even show how the alleged value of the damaged property was arrived at. The trial magistrate was therefore wrong in finding that the case against the appellant had been proved beyond reasonable doubt.

The conviction was unsound.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 17, 31, 339(1)

Advocates

Mr K Murungi for the Appellant.

Mrs S Channa, State Counsel, for the Respondent.

Githunguri v Republic

High Court, at Nairobi February 10, 1986

Madan Ag CJ, Aganyanya & Gicheru JJ

Criminal Application No 271 of 1985

Constitutional law – rights of an accused person – right to fair trial within reasonable time – whether time limit imposed on the prosecution of serious offences – Attorney-General’s office informing applicant and Parliament of decision not to prosecute applicant – prosecution of appellant commenced four years later – court not told whether prosecution based on fresh evidence – whether Attorney-General is entitled to change decision not to prosecute – whether delay inordinate – whether applicant’s prosecution an infringement of his right to a fair trial within a reasonable time - Constitution of Kenya sections 67(1), 77(1), 84(1).

Judicial Review – High Court – jurisdiction of – jurisdiction over tribunals and individuals acting in administrative or quasi-judicial capacity–– prosecution of applicant in contravention of his right to fair trial within reasonable time – Attorney-General failing to terminate prosecution - application for order of prohibition against trial magistrate to prohibit him from proceeding with a trial.

Criminal Practice and Procedure – Constitutional Court - reference to Constitutional Court under section 67(1) of the Constitution – nature of questions that may be referred – Constitution of Kenya sections 77(1), 84(1).

The applicant was charged in a magistrate’s Court with several counts alleging contraventions of the Exchange Control Act (cap 113). His advocate successfully made a preliminary application under section67(1) of the Constitution for the reference by the trial magistrate to the High Court of the issue of whether the Attorney-General’s office, which he alleged had previously decided not to prosecute the applicant and informed both the applicant and parliament of that decision, had properly exercised its power under section26 of the Constitution in reviving the charges four years later.

The Constitutional Court, which could do no more than answer the questions referred to it by the applicant, held, among other things, that the Attorney General has an unfettered discretion to institute and undertake criminal proceedings but that discretion was to be exercised in a quasi judicial way; that it was proper for the Attorney-General’s office to prosecute a person with offences committed over nine years earlier even if that office had after a full inquiry decided not to prosecute but the right to change that decision may be lost where the accused is publicly informed that he will not be prosecuted and the property seized during investigations restored to him; and that the proceedings against the applicant were an abuse of the process of Court. In its final order, the Court stated that the trial magistrate was at liberty to proceed with the trial unless the Attorney- General, in the light of the Court’s answers to the questions referred to it, decided, as the Court hoped he would, to terminate proceedings or unless the accused applied for a prerogative order.

When the trial resumed, however, the Attorney-General refused to terminate the proceedings and the applicant, after obtaining leave to doso, filed a motion supported by a statement and an affidavit, asking the High Court to make an order prohibiting the magistrate from further proceeding to hear the case. The application was heard by two judges who, failing to reach a unanimous decision, were divested of it by the Acting Chief Justice who ordered that the application be heard de novo by three judges of the High Court.

Held:

1. The High Court has inherent powers to exercise jurisdiction over tribunals and individuals acting on administrative or quasi-judicial capacity.

2. There is no time limit for the prosecution of serious offences except where a limitation is imposed by statute and the Attorney-General is therefore free to prosecute provided that he does not offend the fundamental rights conferred on an accused person by section77(1) as protected by section84(1) of the Constitution.

3. Under section3(2) of the Evidence Act (cap 80) and by the sound rule of common sense, the matters mentioned in the applicant’s affidavit to which he deponed from personal knowledge had been established as facts and the Court would regard them as a certainty.

4. To charge the applicant four years after it was decided by the Attorney- General not to prosecute, and thereafter also by neither of the successors in office, it not being claimed that any fresh evidence had become available thereafter, it cannot be said that the hearing of the case would be within a reasonable time as required by section77(1) of the Constitution. The delay was so inordinate as to make the non-action for four years inexcusable.

5. The applicant was entitled to the order of prohibition sought because, first, as a consequence of what had transpired and also being led to believe that there would be no prosecution, the applicant may well have destroyed his evidence and, secondly, in the absence of any fresh evidence, the right to change the decision to prosecute the applicant had been lost the applicant having been publicly informed that he will not be prosecuted and property restored to him.

6. The prosecution of the applicant would be an abuse of the process of Court, oppressive and malicious, and it would not be in the public interest to continue with that prosecution.

7. (Obiter) Two pre-requisites for the reference to a Constitutional Court are, first, the question must relate to the interpretation of the Constitution, and secondly, the subordinate Court must be of the opinion that the question involves a substantial question of law.

8. (Obiter) The applicant’s five questions were wrongly referred to the Constitutional Court under section67(1) of the Constitution as none of the questions was a question as to the interpretation of the Constitution which could properly be the subject of such a reference.

9. (Obiter) The five questions referred to the Constitutional Court would have properly been framed in an application to the High Court under section84 of the Constitution for redress for the infringement of a fundamental right under section77(1) of the Constitution, namely, the right of an accused person to a fair hearing within a reasonable time and the present Court would treat the applicant’s application as having been made and brought under section84(1).

10. (Obiter) The manner in which the Constitutional Court expressed its final opinion was improper, and it need only have stated that the magistrate was at liberty to proceed with the trial. Where a Court does not make a specific order, it ought to leave it to the good sense of the party concerned without exposing itself to defiance and ridicule by expressing a hope that its views will be respected.

11. (Obiter) A Constitutional Court with a full bench of five judges may sometime be called upon to pronounce on whether the decision of the Constitutional Court in this case was wrongly arrived at. In the meantime, that decision was law, final and unappellable.

Order of prohibition to issue.

Cases

1. Chhagan Raja v Gordhan Gopal (1937) 17 KLR 69

2. Shah Vershi Devshi & Co Ltd v Transport Licensing Board [1970] EA 631

3. Fazal Kassam (Mills) Ltd, Re [1960] EA 1002

4. Metropolitan Bank Ltd v Alexander Gopsell Pooley (1885) 10 App Cas 210; (1881-1885) AER 949

5. Mills v Cooper [1967] 2 All ER 100

6. R v Grays Justices, ex parte Graham [1982] 3 All ER 653; [1982] QB 1239, [1982] 3 WLR 596; (1982) 75 Crim App R 229

7. Githunguri v Republic [1985] KLR 91

8. Republic v Stanley Munga Githunguri Nairobi Chief Magistrate Court Criminal Case No 4565 of 1984 (unreported)

Texts

Sarkar, S.C (1959) Law of Evidence Calcutta:Sarkar & Sons 10th Edn pp 21, 26

Statutes

1. Exchange Control Act (cap 113)

2. Constitution of Kenya sections 26(3), 26(8), 67(1), 77, 84, 123 (8)

3. Civil Procedure Rules (cap 21 Sub leg) Order LIII rule 1(2)

4. Criminal Procedure Code (cap 75) sections 82(1), 87(b), 359 (2), 364 (5)

5. Civil Procedure Act (cap 21) sections 68 (2), 69

6. Advocates Act (cap 16) section68(2)

7. Judicature Act (cap 8)

8. Evidence Act (cap 80) sections 3(2), 69

Editorial Note

The Exchange Control Act (cap 113) was repealed by Act No 11 of 1995.