Republic v Kimani & 4 others

Court of Appeal, at Nairobi March 11, 1986

Kneller, Hancox & Nyarangi JJA

Criminal Appeal No 91 of 1984

(Appeal from the High Court at Nairobi, Sachdeva J)

Judgment – per incuriam judgment – judgment given in ignorance of an amending statute - effect of.

Statutes – interpretation of – Criminal Procedure Code (cap 75) section 230(b) – meaning of “section 220” in that section” – whether the words refer to section 220 of the Criminal Procedure Code or section 220 of the Penal Code (cap 63)

Under the Criminal Procedure Code (cap 75) section 230(b) a subordinate court is required to hold committal proceedings where the accused is charged with an offence “to which section 220 applies”.

The respondents had been charged and tried in a Chief Magistrate’s court with attempted murder. On their appeal in the High Court, it was held that the term “section 220” referred to section 220 of the Penal Code (cap 63), and on that basis, that the proceedings in the Chief Magistrate’s court were a nullity for not complying with section 230 of the Criminal Procedure Code.

The Attorney-General appealed against the decision of the High Court.

Held:

1. While the Criminal Procedure Code (cap 75), before 10th December 1982, provided in the First Schedule that no court other than the High Court should try a case under section 220 of the Penal Code (cap 63), meaning a charge of attempted murder, the amendments introduced by the Criminal Procedure (Amendment Act) Act 1982 (Act No 13 of 1982) dispensed with committal procedure for attempted murder and provided for the trial of that offence by a First Class subordinate court presided over by a Chief Magistrate or Senior Resident Magistrate.

2. The judgment of the High Court was per incuriam inasmuch as it was made without regard to the amendments introduced by the Criminal Procedure (Amendment Act) Act 1982 (Act No 13 of 1982).

3. The words “section 220” as used in sub-paragraph (b) of the Criminal Procedure Code meant section 220 of the Criminal Procedure Code and not section 220 of the Penal Code or of any other Act.

4. The proceedings before the Chief Magistrate’s court were therefore not a nullity.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 220

2. Criminal Procedure Code (cap 75) sections 174, 220, 230, 230(b), First Schedule

3. Criminal Procedure (Amendment Act) Act 1982 (Act No 13 of 1982) section 12

Advocates

Mr Otieno for the Respondents.

Criminal Practice and Procedure – summary rejection of appeals by the High Court (section 352(2) of the Criminal Procedure Code) – conviction – weight of evidence.

Kanini Farm Limited v Commissioner of Lands

High Court, at Nairobi November 29, 1984

Nyarangi J

Land Acquisition Act Appeal No 1 of 1981

Compulsory acquisition - of land – by government – under the Land Acquisition Act (cap 295) – compensation upon acquisition – assessment of adequate compensation – basis of value – where land was originally agricultural – application for change of user made – change of user approved before acquisition - whether compensation should be based on value of residential property as opposed to agricultural property – factors to be considered when assessing the value.

Compulsory acquisition – of land – by government – payment of compensation – proper recipients of compensation – factors to be considered when assessing value – whether speculative value should be taken into account.

The appellants’ land was compulsorily acquired by the government under the Land Acquisition Act (cap 295). The appellant challenged the compensation awarded on the grounds that it valued the property as agricultural land when there had been a change of user to residential and that some of the recipients of compensation were trespassers of the land among other issues.

Held:

1. A person whose land is acquired is entitled to prompt payment of full compensation as a result of the acquisition as provided for under section 75 (1) (c) of the Constitution and section 8 of the Land Acquisition Act (cap 295).

2. When land is compulsorily acquired under the Land Acquisition Act an inquiry to determine the persons interested in the land, the value of the land and the compensation to be paid must be held as required by section 9 (3) of the Act.

3. Market value as a basis for assessing compensation is the price which a willing seller might be expected to obtain from a willing purchaser, the purchaser may be a speculator but a reasonable one.

4. The changes of user of the suit land, from agricultural to a residential character was approved before the acquisition, therefore it was fair and just that the property should be treated as residential in assessing compensation.

5. In determining the amount of compensation which ought to be paid the court should take into account comparable sales and awards on other acquisition of land of similar character.

6. The burden is on the appellant challenging the adequacy of the compensation to prove that the award of compensation is wrong.

Appeal allowed, award increased accordingly.

Cases

1. Many v The Collector Under Indian Land Acquisition Act [1957] EA 125

2. New Munyu Sisal Estates Ltd v Attorney-General [1972] EA 88

3. Collector v Heptulla [1968] EA 555

4. Collector v Kassam Shivji Bhimji [1959] EA 1063

Statutes

1. Land Acquisition Act (cap 295) sections 8; 9(1),(3); 20

2. Constitution of Kenya section 75(1)(c)

3. Indian Acquisititon Act 1894

4. Schedule to the Land Acquisition Act rules 2,3