Joseph Munyao Malebe  & 2 others v Republic

 High Court, at Nairobi

November 11, 1982

Muli J

Criminal Appeal No 546, 547 & 548 of 1982

Criminal Practice and Procedure - charge - joinder of charges - misjoinder of persons - misjoinder of offences - joint charge sheet - charges of stealing by servant against three accused - charge alleging different items stolen on separate dates - accused persons not charged jointly as having common intention - no evidence linking accused with offence - accused convicted and sentenced - whether conviction and sentence proper - miscarriage of justice - whether the trial a nullity - whether retrial proper - Penal Code (Cap 63) Section 281.

The three appellants were charged separately on separate counts in one charge sheet with the offence of stealing by servant contrary to Section 281 of the Penal Code (Cap 63). The particulars of the joint charge sheet alleged that the offences were committed on separate dates. The items alleged to have been stolen were different and the appellants were alleged to have stolen them on unknown dates between different months. Moreover, the appellants were not charged jointly as having had a common intention. They were convicted and each sentenced to eight months’ imprisonment. They appealed against their convictions and sentences.

Held:

1. A joint charge against several persons alleged to have committed separate offences on different dates amounts to a misjoinder and such a charge is defective. There should have been a separate charge for each person and separate count for each alleged offence committed on a different date.

2. The misjoinder occasioned prejudice to the appellants because they did not know what charges were against them jointly or separately and when committed. The misjoinder occasioned a failure of justice and being an incurable defect, the trial was a nullity.

3. The trial magistrate’s failure to consider, from the available evidence, that other employees might have been involved in the loss of the stolen property was a misdirection which occasioned a further failure of justice.

4. It would not meet the ends of justice to send the case for fresh charges and retrials when there was no evidence to connect the appellants with the alleged offences.

Appeals allowed.

Cases

No case referred to.

Statutes

Penal Code (Cap 63) Section 281

Macharia v Republic

High Court, at Nairobi November 11, 1982

Muli J

Criminal Appeal No 448 & 156 of 1982

Evidence - statement of admission - retraction of - trial within a trial not ordered - admission of statement in evidence - whether proper.

Evidence - corroboration by accomplice - evidence of an accomplice - whether corroboration necessary for accomplice evidence - sufficiency of such evidence.

The two appellants were convicted and sentenced for shop breaking and dishonest handling of stolen property. At the trial, the only evidence given against the first appellant was that of a person who had received the stolen property from him. The second appellant had retracted a statement alleged to have been made by him under caution but the trial magistrate nevertheless admitted it in evidence without ordering a trial within a trial.

Held:

1. The prosecution witness who had received the stolen property from the first appellant may have been an accomplice and her evidence, therefore, needed corroboration.

2. The trial magistrate misdirected himself by not holding a trial within a trial and in admitting a retracted statement without such a trial.

3. There had not been sufficient evidence on which to convict, and the guilt of the appellants had not been proved beyond reasonable doubt.

Appeals allowed.

Cases

No case referred to.

Statutes

Penal Code Sections 306(a); 322(2)

Charles Njoroge v Republic

High Court, at Nairobi

November 5, 1982

Muli J

Criminal Appeal No 274 of 1982

Evidence - evidence of identification - evidence of identification by a single witness - conviction upon such evidence - fingerprint expert corroborating evidence of identification - expert evidence unchallenged - sufficiency of evidence to sustain conviction - propriety of such a conviction.

Judicial bias - existence of bias - same accused previously convicted by same magistrate - whether this warrants retrial by another magistrate - meaning of prejudice and bias - effect of such bias.

The appellant was charged before a Magistrate’s court with the offence of robbery with violence contrary to Section 296(2) of the Penal Code (Cap 63) and sentenced to death after conviction. The evidence was that the appellant had on the night of March 1/2, 1981, in the company of three other persons, robbed the complainant of property at his house and used violence on him, his wife and his sister-in-law and thereafter escaped.

Police later lifted fingerprint impressions from a radiogram that had been in the house at the time of the robbery. Later, when the appellant was arrested in connection with another robbery, fingerprint experts found that his left thumb-print impression matched the one lifted from the radiogram. Moreover, an identification parade was conducted at which the complainant’s sister-in-law picked out the appellant as one of the persons who had committed the robbery at the complainant’s house.

However, the complainant and his wife both testified that they were unable to identify any of the attackers. The appellant appealed on the grounds, inter alia, that the trial magistrate had previously convicted him of another offence and that he was therefore prejudicial and for that his case should be retried by another court. He also claimed that the charge had not been read to him and that he did not understand the language used at his trial.

Held:

1. It would be unsafe to base a conviction on the evidence of identification given by a single witness when the alleged identification occurred at night in circumstances not favouring accurate identification.

2. The evidence of the fingerprint expert, who was an independent witness, was not challenged by the appellant even when given ample opportunity by the court. It was corroborated by the evidence of identification. The trial magistrate having cautioned himself on the identification evidence of a single witness was justified in convicting the appellant.

3. A retrial of a case can only be ordered only if the record reveals that there was miscarriage of justice or that there was judicial bias. In this case examination of the grounds of appeals and the record confirm that the appellant was properly convicted.

Appeal dismissed.

Cases

No case referred to.

Statutes

Penal Code (Cap 63) Section 296(2)

Advocates

Mr Mbai for Respondent

Wycliffe Karisa Charo v Republic

High Court, at Nairobi

October 29, 1982

Muli J

Criminal Appeal No 808 of 1982

Criminal Law - possession of stolen property contrary to Section 323 of the Penal Code - the ingredients of the offence.

Criminal Practice and Procedure - plea of guilty - failure to explain ingredients of charge to accused - whether charge was supported by facts - accused not given opportunity to explain how he came to be in possession of stolen property - whether conviction proper - Criminal Procedure Code (Cap 75) Section 26(1)(c).

Police acting on information visited the appellant’s flat on the same house on which he worked as a watchman and after searching it, found a television set that had been stolen. The appellant had neither a permit nor a receipt for the television set. He was arrested and charged and he pleaded guilty to the offence of being in possession of suspected stolen property contrary to Section 323 of the Penal Code (Cap 63) for which he was convicted and sentenced to one year and six months’ imprisonment.

He appealed against the sentence, pleading certain circumstances in mitigation of it. His advocate, who had filed a supplementary memorandum of appeal, submitted that the facts as stated did not support the charge as the appellant had not been given a chance to give an explanation as to how he came to be in possession of the television set as required under Section 323 of the Penal Code.

Held:

1. The ingredients of a charge under Section 323 of the Penal Code are that a person must have been detained pursuant to Section 26 of the Criminal Procedure Code (Cap 75); the person must be charged with having in his possession or conveying anything reasonably suspected of having been stolen or unlawfully obtained; and the person must have failed to give an account to the satisfaction of the court of how he came by the thing so suspected.

2. It had not been shown that the police, in searching the appellant’s house, had been acting under powers conferred by Section 26 of the Criminal Procedure Code as is required by Section 323 of the Penal Code.

3. It is a fatal omission not to explain to the appellant all the ingredients of a charge and not to ask the accused to give an explanation as to how he came to be in possession of the property, when the charge is one of handling stolen property contrary to Section 323 of the Penal Code. The facts of the charge must also support the charge.

Appeal allowed, conviction quashed and sentence set aside.

Cases

No case referred to.

Statutes

1. Penal Code (Cap 63) Section 323

2. Criminal Procedure Code (Cap 75) Section 26(1)(c)

Advocates

Mr Mulwa for Appellant

Saheb v Hassanally

High Court, at Nairobi February 28, 1980

Muli J

Civil Case No 1299 of 1977

Landlord and tenant – tenancy – termination of – notice of termination – grounds for termination – reliance on alternative grounds – legality of.

Landlord and tenant – tenancy – notice of termination of – service of notice - what constitutes proper notice.

The plaintiff (landlord) issued a notice to the defendant (tenant) under section 4(2) of the Landlord, Tenant (Shops, Hotels and Catering Establishments) Act (cap 301). The plaintiff brought the action on the basis of the notice on the grounds that the notice was invalid and that the grounds on the notice averred in the alternative were null and void.

Held:

1. The Landlord, Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) section 7 which provides grounds on which a landlord may seek to terminate the tenancy, does not prohibit reliance upon alternative grounds, however the landlord can only enforce one ground at a time.

2. Where a landlord relies on more than one ground in the alternative, upon the tenant complying or refusing to comply with the notice the landlord will be bound by the acceptance of any one ground or by refusal of all the grounds in the notice.

3. Service of a tenancy notice can be done using two methods; either by delivering to the tenant personally or to an adult member of his family or to a servant residing with him or employed in the premises or to an employee or by sending it by prepaid registered post to his last known address.

Plaintiff’s suit dismissed.

Cases

Woolf & another v Macharia [1971] EA 330

Texts

Simonds, V, et al (Eds) (1952-64) Halsbury’s Laws of England London: Butterworths 3rd Edn Vol VIII p 169

Statutes

1. Landlord and Tenant (Shop, Hotels and Catering Establishments) Act (cap 301) sections 4; 4(1),(2),(4),(6); 7; 10; Form A

2. Interpretation General Clauses Act (cap 2) section 72

Advocates

Mr Nowrojee for the Defendant

Mr Le Pelley for the Plaintiff

David G Mbugua v Phoenix of Africa Assurance Co Ltd

High Court, Nairobi

19th March 1979

Muli J

Civil Case No 281 of 1974

Motor insurance - repudiation of liability under policy - vehicle in unroadworthy condition – connection between condition of vehicle and incident giving rise to claim.

The plaintiff insured his car with an insurance company. He claimed that his car had been stolen and sought to recover from the insurance company the cost of repairs itemised in an estimate of costs. The insurance company refused to make payment in respect of the damage to the car, most of which (it claimed) had occurred before the theft and the rest amounted to less than the excess which the plaintiff was required to meet himself.

Held:

On the facts, that the car must have been involved in an accident before the theft and inadequate repairs had been carried out on it; as the cost of repairing such damage as had occurred after the theft was less than the excess which the plaintiff was required to pay under the policy, the insurance company was not liable to make any payment to the plaintiff.

Per Muli J. An insurance company could only cancel a policy of motor insurance on the ground that the vehicle was not in an efficient condition at the time of the incident giving rise to a claim if the cause of the incident was directly connected with or attributable to the condition of the vehicle.

Case referred to in judgment:

Conn v Westminister Motor Insurance Association Ltd [1966] 1 Lloyd’s Rep 407, England CA.

Action

David G Mbugua instituted proceedings against Phoenix of Africa Assurance Co Ltd (Civil Case No 281 of 1974) for the cost of repairs to his car under the terms of a policy of motor insurance. The facts are set out in the judgment of Muli J.