Criminal practice and procedure-appeal-consolidated appeal-where the appellants had been charged and convicted on two counts of robbery with violence and being in possession of a firearm-whether the trial magistrate considered the evidence and their defence-whether the appeal had merit-Penal Code section 296 (1); Firearms Act section 43 (3)

Annah Wanjuhi Njagi & another v Republic

Court of Appeal, at Nairobi

October 26, 1988

Platt, Apaloo & Masime JJA

Criminal Appeal No 133 of 1987

(Appeal from a Judgment and Sentence of the High Court at Nairobi, Mbaluto & Bosire JJ)

Evidence – corroboration - confession of an accused person – weight of such confession as evidence against a co-accused – when such a confession can be admitted – Evidence Act (cap 80) section 32 – whether evidence of an accomplice may be taken as corroboration of an accused’s confession statement.

Evidence – duty of trial court to weigh all the evidence – failure of court to consider alibi defence – whether conviction proper.

The appellants were convicted and sentenced on a charge of robbery with violence contrary to the Penal Code (cap 63) section 296(2).

The evidence on which they were convicted was that on the material day, a group of people armed with weapons had broken into the house of the complainant, forcibly took money therefrom and injured him. The first appellant had made a confession statement which she retracted and repudiated but which was found by the trial court to have been properly made by her and accepted in evidence.

One witness claimed to have recognized the second appellant during the robbery and she had picked him out in an identification parade. However, both the first appellant and Paulina, an accomplice who it was said had waited near the scene of the robbery and taken part of the stolen money, gave evidence that the second appellant had not taken part in the robbery.

The trial court considered that the first appellant’s confession was corroborated by the evidence of Paulina, the accomplice.

The High Court dismissed the appellants’ first appeals and they appealed to the Court of Appeal. It was argued that the lower courts had failed to consider the second appellant’s alibi defence and that it had been wrong to take Paulina’s evidence as corroboration for the first appellant’s confession statement.

Held:

1. A confession by an accused person implicating a co-accused may be taken into consideration against that other accused person but it can only be added to a case almost proved by the prosecution. This means that it can only be used as lending support to evidence which only falls short by a very narrow margin of the standard of proof.

2. The confession by the first appellant did not concern the second appellant and it carried the prosecution case no further. It should not have been relied upon under the Evidence Act (cap 80) section 32.

3. The trial court had failed to weigh up the alibi defence of the second appellant before reaching its decision that the second appellant’s recognition was proper.

4. If the trial court had weighed the alibi, it would have found it was supported by the evidence of Paulina, the accomplice. If the evidence of Paulina was deemed sufficient to corroborate the confession of the first appellant, the court had to consider why Paulina’s evidence supporting the second appellant’s alibi could be rejected.

5. The courts below failed to appreciate the facts that the recognition of the second appellant was based on a fleeting glimpse of him in torch light which momentarily fell on his face. The recognition was not borne out by any immediate report or even an identification parade. In the circumstances, if the evidence of the prosecution had been weighed with the defence, it was doubtful whether the courts below would have come to the same conclusion.

6. In admitting the First Appellant’s confession in evidence, the lower courts had considered the various factors and it could not be said that they had wrongly concluded that the confession was voluntary.

Moreover, the lower courts had properly directed themselves in seeking corroboration which was found in the evidence of Paulina, the accomplice.

First Appellant’s appeal dismissed.

Cases

1. Gopa s/o Gidemabenya & Others v R (1953) 20 EACA 318

2. Kinyua v R [1980] KLR 141

3. Okale & others v R [1965] EA 555

4. Leonard Aniseth v R [1963] EA 206

5. Raphael v R [1973] EA 473

6. Bassan & Wathobia v R [1961] EA 521

7. DPP v Gester (1973) 57 Cr App R 212; [1972] 3 All ER 1056; [1973] AC 296; [1972] 3 WLR 910

8. Kiarie v R [1984] KLR 739

Statutes

1. Penal Code (cap 63) section 296(2)

2. Evidence Act (cap 80) section 32

Advocates

Miss Mutua for the First Appellant

Mr Oduk for the Second Appellant

Nyongesa & 4 others v Egerton University College

Court of Appeal, at Nairobi December 17, 1990

Nyarangi, Gachuhi & Masime JJ A

Civil Appeal No 90 of 1989

(Appeal from the Ruling and Order of the High Court at Nakuru

(Tunoi J) dated 12th April 1989 in High Court Misc Civil Application No 10 of 1987)

Judicial review – displinary action against University students – University Board acting without giving students opportunity to be heard – whether disciplinary action can stand - whether University Board and Senate bound by rules of natural justice - whether rules of natural justice breached - reluctance of courts to interfere with decisions of domestic bodies.

Natural Justice - right not to be condemned unheard – University disciplinary body decidng to expel students - students not given notice of the proceedings or opportunity to be heard - whether disciplinary proceedings proper - whether proceedings conducted in breach of natural justice.

The appellants, who were students of the respondent University, appealed against the High Court’s decision refusing to issue an order of mandamus against the University to command it to release the results of the appellants for diploma examinations which they had set and to award the relevant certificates to those appellants who may have passed their respective examinations.

The University justified the disciplinary action against the appellants contending that they were lawfully expelled before the end of the academic year and were thus not entitled to results or the award of certificates.

The Academic Registrar of the University deponed that the appellants undermined the authority of the institution by staging an unlawful strike which led to postponement of terminal examinations for first and second year students.

The Registrar further stated that he wrote to each appellant to inform each of them of the alleged misconduct and to convey the decision of the displinary committee and of the Board that the appellants had been expelled from the college. No notice of the charges or the meeting in which the decision of the disciplinary committee was reached had been given to any of the appellants.

It was however contended on behalf of the University that the appellants were not heard because they had by their conduct waived that right

Held:

1. The Board, the Senate and the Disciplinary Committee of the University were not judges in the proper sense of the word. However each was required to give each applicant an opportunity of being heard before it and stating his case and view.

2. There was a failure of natural justice. It was necessary for each applicant to be served with a notice that he was being proceeded against and each organ which dealt with the applicants was required to act honestly and fairly.

3. In the absence of specific provisions or rules as to how the Board, Senate and the Disciplinary Committee of the University were to proceed to decide the matter the law of Kenya will imply no more than that the substantial requirements of the law shall not be violated.

4. Courts are loath to interfere with decisions of domestic bodies and tribunals including college bodies. However, the courts will interfere to quash decisions of any bodies when moved to do so where it is manifest that decisions have been made without fairly and justly hearing the person concerned or the other side.

5. (Per Masime JA) The proceedings of the discilinary bodies of the respondent college were in breach of the rules of natural justice and were consequently null, void and of no effect.

Appeal allowed.

Cases

No cases referred to.

Texts

Simonds, Lord et al (Eds) (1953) Halsbury’s Laws of England London:

Butterworths 3rd Edn Vol II p 65 para 122

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order LIII rule 3

2. Egerton University College Act, Act No 15 of 1986 section 14(1)

Advocates

Mr Ochieng for the Appellants

Mr Sheth for the Respondent

Jiwa v Jiwa & another

Court of Appeal, at Mombasa January 9, 1990

Nyarangi, Gachuhi & Masime JJ A

Civil Appeal No 59 of 1986

(Appeal from the Ruling/Order of the High Court of Kenya at Nairobi (Rauf J) dated 15th July, 1985 in Civil Case No 851 of 1985)

Civil Practice and Procedure – substitution of parties – discretion of the court in substituting a party - exercise of discretion - whether court can order order substitution on is own motion without a formal application - Civil Procedure Rules order I rule 10(2).

The appellant as an attorney of one Mohamed Jiwa, sued the respondents claiming that on or about December 23rd 1976 the plaintiff and the defendants became registered as absolute proprietors of a certain parcel of land and the defendants had fraudulently caused the register to be altered and the name of his principal to be removed from the register.

The appellant therefore sought in the High Court a temporary injunction restraining the defendants from alienating, disposing of the said land or registering an instrument or transaction over the land. He further sought a declaration that the rectification of the register was fraudulent and that it be restored to the original condition.

The defendants in their defence refuted the plaintiff’s allegation claiming the plaint disclosed no cause of action in that either during the period stated or at any other time, Mohamed Jiwa was a proprietor of the land and that by a deed of settlement a Mrs Kulsumbai Nazerali, the registered proprietor of this parcel of land, created a trust in respect of it and appointed a principal, the first defendant, and one Nazerali Jiwa as joint trustees. Nazerali Jiwa died and his interest in the land became vested in the two surviving trustees. The defendants therefore claimed that the plaintiff ceased to have any right in the parcel of land.

The defendants therefore moved the court under order VI rule 13 seeking an order that the plaintiff had no cause of action against the defendants and hence the plaint should be dismissed with costs. The trial judge dismissed the suit as prayed hence the appeal.

Held:

1. The first and real question for the judge was whether in the circumstances it was in the interest of justice for him to exercise his discretion and order the appellant/ plaintiff to be substituted.

2. The plaintiff could not sue the defendants in his own name. The suit had therefore been instituted in the name of the wrong person as plaintiff.

3. The court could only effectually and completely adjudicate upon and settle all questions involved in the suit after the substitution of the plaintiff by Mohamedali Nazerali Jiwa.

4. This case was clearly covered by Order I rule 10(2) of the Civil Procedure Rules under which the judge could at any stage of the proceedings either upon or without the application of either party exercise his discretion and order the substitution of the proper party.

5. The judge misapprehended sub rule (2) of rule 10 in the exercise of his discretion and as a result reached a wrong conclusion.

Appeal allowed.

Cases

Mbogo v Shah [1968] EA 93

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order I rules 10, 10(2); order VI rule 13

Advocates

Mr Kivuitu for the Appellant.

Mr Sampson for the Respondents.

Wanjohi & 2 others v Republic

Court of Appeal, at Nairobi

April 27, 1989

Platt, Gachuhi & Masime JJA

Criminal Appeal No 194 of 1985

(Appeal from a conviction and judgment of the High Court at Nairobi, Cockar & Torgbor JJ dated 19th July 1985 in Criminal Appeals Nos 1504-6 of 1983)

Evidence – identification – question of accuracy of such evidence to be answered beyond reasonable doubt.

Evidence – identification by recognition – strength of such evidence - possibility of mistake.

The appellants were tried and convicted in a magistrate’s court for the offence of robbery with violence and sentenced to death.

The complainants evidence was that while he was walking alone the headlights of a vehicle behind him showed him three people ahead of him. When they got closer he saw one had the uniform of an administration policeman and another pointed at him something that looked like a pistol.

The uniformed man held him on the neck and as he struggled to free himself, he was hit severally on the head until he fell down unconscious.

In the course of the attack the complainant thought he recognized the third appellant who was previously known to him. He claimed that from the light of the stars he could recognize the appellant besides he knew him well.

The complainant was however unable to describe the part played by the appellant or the clothes he wore during the attack. Nothing was recorded by him about the appellant’s physical appearance or voice. The complainat did not identify the other two persons but the 1st and 2nd appellants were found to have been in possession of the property stolen from him shortly after the attack.

The High Court dismissed the first appeal observing that the trial magistrate was impressed by the quality of evidence of identification hence omitted any reference to the possibility of the appellants identification being mistaken and that the omission occasioned no failure of justice.

Held:

1. Recognition is stronger than identification but an honest recognition may yet may be mistaken.

2. The vital question upon which there is special need for caution is the correctness of identification.

3. The High Court had erred. It is not that a reference to mistaken identification is desirable, it is the vital question which has to be answered beyond reasonable doubts, namely, was the appellant recognised beyond reasonable doubt? Whether the error caused failure of justice is the next step.

4. There is no doubt that star light per se affords no scientific means of illumination at all sufficient for observing the features or shape of a person to such a degree that proof can be had beyond reasonable doubt.

Appeal allowed.

Cases

1. Roria v R [1967] EA 583

2. Abdullah bin Wendo v Reginam (1953) 20 EACA 166

3. R v Turnbull & others [1976] 3 All ER 549; [1976] 3 WLR 445; [1977]

QB 224; (1976) 63 Cr App R 132

Statutes

Penal Code (cap 63) section 296(2)

Torroha v Republic

Court of Appeal, at Nairobi

January 18, 1989

Nyarangi, Gachuhi & Masime JJ A

Criminal Appeal No 163 of 1988

Criminal Practice and Procedure - extradition proceedings – proceedings under the Extradition (Contiguous and Foreign Countries) Act (cap 76) section 14 - procedure in such proceedings - the test to be applied when assessing evidence.

Extradition - extradition proceedings - procedure in such proceedings - circumstances in which extradition may be ordered - duty of court to satisfy itself that the subject will receive a fair trial - Extradition (Contiguous and Foreign Countries) Act (cap 76).

Evidence – accused informing police officer where the other suspect is – whether police under obligation to contain the accussed – Evidence Act (cap 80) section 31 .

The appellant was arrested under provisional warrants under section 13 of the Extradition (Contiguous and Foreign Countries) Act and produced in the Chief Magistrate’s court.

His arrest was followed by production of authenticated documents from Dar – es – Salaam which included a warrant of arrest for the appellant and another person.

The documents were signed by the Principal Resident Magistrates, Kisutu, Dar-es-Salaam whose signature had been verified by the Attorney General of Tanzania.

Also included in the documents were certified copies of proceedings held before the Principal Magistrate’s court wherein the appellant and another were jointly arraigned on five counts four of which related to stealing of travellers cheques.

It was in evidence that immediately the travellers’ cheque went missing from the section where a one Sarah Khadija a Tanzanian national was working she was next found in the Jacaranda Hotel in Nairobi. And upon his arrest it is the appellant who informed the police officers where Sarah was.

The Chief Magistrate discharged and set free the appellant prompting an appeal to the High Court by the Republic.

The High Court allowed the appeal by the Republic and ordered the appellant’s extradition.

On a second appeal by the appellant it was contended on his behalf that the High Court misdirected itself on the onus of proof and that prima facie evidence was not necessary. The appellant further contended that there was no evidence to connect the appellant with the offence being preferred against him in Tanzania. Besides, his counsel submitted that the appellant was never cautioned on arrest.

The appellant therefore faulted the High Court in reviewing the decision of the Magistrate.

Held:

1. The proper task of a magistrate before whom the return of a prisoner is sought is as follows:

The Court shall have regard to section 14(1) of the Extradition (Contiguous and Foreign Countries) Act (cap 76). The Magistrate then peruses the documentray and oral evidence and ensures that subsections 1(a) and (b) of section 14 have been complied with.

2. Before exercising his discretion to order the return of the Prisoner, the Magistrate should peruse the entire evidence and understand it, without taking the position of a trial Court. So the degree to which the Magistate has to be satisfied is not expected to be as high as that requested from the analysis and evaluation of evidence adduced in a trial. The Magistrate is under no duty to inquire into the merits of he charges to be preferred.

3. If there is some evidence which discloses a connecting factor between the prisoner and the alleged offences, the Magistrate should order the prisoner to be returned.

4. Any person accused of an extradition crime who is in Kenya shall not be surrendered if the offence for which his surrender is required is one of a political character or return would result in a punishment for an offence of a political character. It is fundamental that there cannot be extradition where fair trial cannot be guaranteed.

5. The High Court was entitled to examine the evidence, to rehear the case, reconsider the material before it and reach its own decision thereon without disregarding the judgment of the magistrate but carefully weighing it.

6. The information which the appellant gave to the police officer about Sarah Khadija was a relevant fact in terms of section 31 of the Evidence Act (cap 86) hence there was no obligation on the police officer to caution the appellant.

7. Section 16 of the Extradition (Contiguous and Foreign Countries) Act (cap 76) had been complied with and there was no doubt the appellant would receive a fair trial in the neighbouring republic of Tanzania.

Appeal dismissed.

Cases

1. Kunga v Republic [9175] EA 151

2. Ruwala v R [1957] EA 570

3. Kipngetich v R [1985] KLR 392

Texts

Simonds, Viscount et al (Eds) Halsbury’s Laws of England London: Butterworths & Co 3rd Edn p 572 para 1178; p 573 para 1179 pp 576- 77 para 1193

Statutes

1. Extradition (Contiguous & Foreign Countries) Act (cap 76) sections13, 14, 16

2. Evidence Act (cap 80) section 31

Advocates

Mr O Opiyo for the Appellant.

Mr Etyang for the respondent.

Sainaghi t/a Enterprise Panel Beaters v Kasuku

Court of Appeal at Nairobi

November 7, 1988

Gachuhi, Apaloo & Masime JJA

Civil Appeal No 88 of 1985

(Appeal from a Ruling and Order of the High Court at Nairobi, O’Kubasu J)

Civil Practice and Procedure – ex parte judgment - setting aside such judgment – judgment entered in default of appearance – defendant challenging judgment on grounds of non-service of summons – court relying heavily on process server’s return of service and treating it as an affidavit – court refusing to set aside judgment – whether decision proper.

The respondent filed a suit against the respondent in which a return of service was filed by a process server stating that he had served the appellant with the summons. The respondent obtained judgment in default of the appellant’s appearance.

The appellant applied for the judgment to be set aside on the ground that he hadn’t been served with the summons. He averred that he had been in a foreign country at the time of the alleged service and denied having signed the summons. The respondent did not file a replying affidavit.

The appellant’s application was dismissed and he appealed.

Held:

1. In his ruling, the judge had heavily relied on the return of service which was not sworn. The judge misdirected himself in treating the return of service as a sworn affidavit.

2. This was a case of dispute of service and of the signature of the person served. When it became clear to the judge that the signature was disputed, it was incumbent on him to call for evidence of service by the  process server, whose return of service had been challenged by a sworn affidavit, to determine as to who was telling the truth.

3. By treating the return of service as an affidavit and not calling the process server to support his return of service, the judge erred and misdirected himself in dismissing the appellant’s application.

4. The appellant, who had filed a defence and counterclaim with his application to set aside the ex parte judgment, was in the circumstances entitled to unconditional leave to defend.

Appeal allowed.

Cases

Karatina Garments Ltd v Nyanarua [1976] KLR 94

Statutes

Civil Procedure Rules (cap 21 Sub leg) order IX rule 10

Wagichiengo v Gerald

Court of Appeal, at Nairobi

October 28, 1988

Nyarangi, Apaloo JJA & Masime Ag JA

Civil Appeal No 72 of 1984

(Appeal from the Judgment of the High Court at Nairobi, O’Kubasu J)

Contract – breach of contract – consequence of breach – party failing to fulfil a condition precedent – contract repudiated by the other party – whether the non-performing party entitled to specific performance.

Contract – contract for sale of land – statutory requirement that such contract be evidenced by a note or memorandum in writing signed by the party to be charged – Law of Contract Act (cap 23) section 3(3) – meaning of “signed””– whether a note is “signed” if it is merely in the handwriting of the party to be charged.

The appellant sued the respondent seeking specific performance of an alleged agreement for the sale of land or, in lieu thereof, damages for breach of contract.

The respondent denied the breach and pleaded that the agreement had been subject to a condition that the appellant would deposit a sum of £20,000 in the account of the respondent and that the appellant had failed to fulfil that condition. The respondent alternatively submitted that if there was any agreement, then it was unenforceable at law by reason of section 3(3) of the Law of Contract Act (cap 23).

The trial judge found in favour of the respondent and dismissed the appellant’s suit. The appellant appealed.

Held:

1. On the evidence, there was a condition precedent to the contract between the parties that that the appellant would deposit some £20,000 in the respondent’s foreign bank account, and this condition was not fulfilled by the appellant.

2. The High Court judge was right in his holding that there was a valid contract but that contract had become unenforceable by the appellant because of his own failure to comply with an essential term thereof, namely the condition precedent.

3. The provision in the Law of Contract Act (cap 23) section 3(3) that no suit shall be brought upon a contract for the disposition of an interest in land unless some memorandum or note thereof is in writing and signed by the party to be charged meant that in addition to writing, the note or memorandum should be authenticated by some sort of signature.

4. A signature and handwriting are not the same thing and a condition of signing mandatorily required by the statute is not satisfied merely by an unsigned handwriting.

5. The respondent was therefore right in arguing that if there was any agreement concluded with the appellant, there being no note or memorandum of it in writing signed by the respondent or her agent, that agreement was unenforceable.

(Per Apaloo JA): The 12-year life of the decision in Mawji v United States International University & another [1976] KLR 185 was undeserved and it ought now to be overruled.

Appeal dismissed.

Cases

1. Wagiciengo v Gerald [1982] KLR 336 (Overuled)

2. Hindustan Construction Co Ltd v Union of India [1967] AIR SC 526

3. Mawji v United States International University & another [1976] KLR 185 (Overruled)

4. Selby v Selby 3 Mer 2

Texts

Desai, MC et al (Eds) (1980) Venkataramaiya’s Law Lexicon Delhi: Delhi Law House Vol II p 991

Statutes

1. Law of Contract Act (cap 23) section 3(3)

2. Statute of Frauds 1677 [UK] section 4