Patrick Atemo Msembe & another v Republic

High Court, at Nairobi August 4, 2003

Mbaluto & Kubo JJ

Criminal Appeals Nos 619 and 621 of 1998 (Consolidated)

(From original conviction and sentence in Criminal Case No 7201 of 1986 of the Principal Magistrates Court at Kibera)

Criminal Practice and Procedure – identification parade – how identification parade should be conducted - parade of ten people – witness alleging to identify the accused - no description given of the appearance of the other persons in the parade - whether parade properly conducted.

Evidence - circumstantial evidence - test such evidence must meet in order to form a basis for conviction - on whom burden of proof lies.

Criminal law - alibi - burden of proof rests with prosecution - parties to offences - aiding or abetting an offender - renders one party to offence.

Criminal law - possession - meaning of possession - when knowledge can constitute possession.

The two appeals arose from the same case in the Principal Magistrate’s court at Kibera. They were consolidated for hearing. The first and second appellants together with one Jackson Mpemba were jointly charged before the lower court in count 1 with the offence of robbery with violence contrary to section 296(2) of the Penal Code (cap 63). They appealed to the court against conviction and sentence. The first appellant grounded his appeal on the argument that the trial magistrate had erred both in law and fact in relying on identification evidence, uncorroborated prosecution evidence and hearsay evidence. The second appellant argued that the prosecution relied on inconclusive circumstantial evidence and the inattention to his defence of alibi.

Held:

1. The manner in which the identification parade was conducted in this case fell short of the identification guidelines as laid down in the case of R v Mwango s/o Manaa 2 (1936) EACA 29.

2. Where any fact is desposed to, as discovered in consequence of information received from a person accused of any offence, so much of information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.

3. It is trite law that an accused who raises an alibi defence does not assume the burden of proving it. Where a defence of alibi is raised by an accused in his defence, the burden is on the prosecution to rebut the same.

4. In order to justify a conviction founded on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

6. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.

7. When an offence is committed, every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it.

8. Knowledge about a stolen item in the custody of one person can justifiably be deemed to constitute possession of that item on the part of the person having such knowledge within the meaning of section 4 of the Penal Code (cap 63).

First appellant’s appeal allowed. Second appellant’s appeal dismissed.

Cases

1. R v Mwango s/o Manaa (1936) EACA 29

2. Mwakawanga v Republic [1963] EA 6

3. Kiarie v Republic [1984] KLR 739

4. Musoke v R [1958] EA 715

5. R v Kipkering arap Koske & another (1949) 1 EACA 135

Statutes

1. Penal Code (cap 63) section 20(1)(b), 296(2), 322(2), 392

2. Criminal Procedure Code (cap 75) section 350

3. Evdence Act (cap 80) section 31, 127(2)(ii)

Advocates

Miss Nyamasi for the Respondent.

Criminal Practice and Procedure – charge–– duplicity of charge – where the charge sheet charges the accused person of having dishonestly– “received or retained” a cheque knowing or having reason to believe it to have been stolen – whether the charge as drafted is bad for duplicity – Penal Code (cap 63) section 322 (2).

Samuel Mutinda Kasyoka v Republic

High Court, at Nairobi June 20, 2003

Mbaluto J

Criminal Appeal No 465 of 1999

(From original conviction and sentence in Criminal Case No 1143 of 1999 of

the Chief Magistrate’s Court at Nairobi)

Criminal Practice and Procedure – charge–– duplicity of charge – where the charge sheet charges the accused person of having dishonestly– “received or retained” a cheque knowing or having reason to believe it to have been stolen – whether the charge as drafted is bad for duplicity – Penal Code (cap 63) section 322 (2).

The appellant had been convicted of among other offences, handling stolen property contrary to section 322(2) of the Penal Code (cap 63). The charge sheet had been framed as follows, “on the 3rd May 1997 at Barclays Bank of Kenya, Queensway Branch Nairobi, jointly with others not before the Court, otherwise than in the course of stealing, dishonestly received or retained a Banque Indosuez Cheque…..” The appellant appealed on the grounds that the charge as framed was bad for duplicity due to the use of the words “received or retained.” The state argued that the fact that a charge sheet was defective was not necessarily fatal to a conviction or charge, the real test being whether the accused was able to understand the offence he faced.

Held:

1. Considering the nature of the offence with which the appellant was charged, what the learned trial magistrate stated was not sufficient to identify which offence the appellant had been convicted of.

2. The appellant was convicted on a duplex charge and no one can state for sure which of the two offences he was committed. Such conviction should not be allowed to stand.

Appeal allowed, conviction quashed sentence set aside.

Cases

1. Mahero, Dickson Muchino v Republic Criminal Appeal No 53 of 2002

2. Mwaniki, David Ngugi v Republic Criminal Appeal No 68 of 2001

3. Bakari, Hamisi v Republic Criminal Appeal No 217 of 1986

4. Cherere so/ Gukuli v R (1955) 22 EACA 478

Texts

Mitchell, SG (1976) Archbold Criminal Pleading Evidence and Practice

London: Sweet & Maxwell Ltd 39th Edn p883

Statutes

1. Penal Code (cap 63) sections 275, 313, 322(2)

2. Traffic Act (cap 403) section 46

3. Criminal Procedure Code (cap 75) sections 134, 188

Advocates

Mr Kilukumi for the Appellant.

Mr Monda for the State.

Indigo EPZ Limited v Eastern and Southern African Trade & Development Bank

High Court, at Nairobi

October 25, 2002

Mbaluto J

Civil Case No 1034 of 2002 (O.S)

Jurisdiction – Kenyan courts – ouster clause – agreement stipulating that any dispute between parties shall be settled under the rules of conciliation and arbitration of International Chamber of Commerce – whether such a clause ousts the jurisdiction of Kenyan Courts – whether a party under such an agreement has any recourse to any municipal court.

Arbitration – arbitration clause in agreement – clause stipulating reference to arbitration and ouster of jurisdiction of the Kenyan Courts – whether parties have recourse to the municipal courts – Arbitration Act 1995 section 7(1) - Arbitration Rules rule 2.

The parties entered into a loan agreement which contained a clause stipulating that any dispute between the parties was to be settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The plaintiff, which considered that a demand by the defendant for the repayment of the loan money was unjustififed, filed an originating summons in the High Court of Kenya seeking injunctive orders against the defendant. The defendant moved to court to dismiss the suit on the grounds that the court had no jurisdiction to try the suit.

Held:

1. It is a well settled principle and general rule that agreements purporting to oust the jurisdiction of our courts are prohibited.

2. In agreements where parties have agreed to refer disputes to arbitration the position is that the jurisdiction to deal with substantive disputes and differences is given to the arbitrator and the Kenyan Courts retain residual jurisdiction to deal with peripheral matters and to see that any disputes or differences are dealt with in the manner agreed between the parties under the agreement.

3. The plaintiff was entitled under section 7(1) of the Arbitration Act 1995 and rule 2 of the Arbitration Rules of 1997 to bring the suit.

Application dismissed.

Cases

Tononoka Steels Ltd v The Eastern and Southern African Trade and Development Bank (The PTA Bank) Civil Appeal No 255 of 1998

Statutes

1. Civil Procedure Act (cap 21) sections 3A, 95 2. Civil Procedure Rules (cap 21 Sub Leg) order XLIX rule 1; order L rule 1

3. Arbitration Act (Act No 4 of 1995) section 7(1)

4. Arbitration Rules 1997 (Act No 4 of 1995 Sub Leg) rule 2

Advocates

Mr Ougo for the Plaintiff

Mr Regero for the Defendant

[Ruling] – BANKRUPTCY LAW – discharge – application for discharge – where the official receiver and the creditors have no objections – validity of order

Beiersdorf  East Africa Limited v Emirchem Products Limited

High Court, at Nairobi

September 5, 2002

Mbaluto J

Civil Case No 559 of 2002

Injunctions – interlocutory injunction – application for interlocutory injunction – matters that the court can determine at the interlocutory stage – principles applicable in applications for injunctions – tests to be applied.

Intellectual Property - trade marks – infringement – meaning of infringement – applicable law – facts supporting probable infringement – infringement likely to cause confusion and capable of occasioning harm to the holder - applicable principles in get up cases – trade mark cases and reference to precedents. The plaintiff filed an interlocutory application against the defendant for infringement of its trade mark.

The plaintiff claimed that the get-up of the jar in which the defendant marketed its product was so designed as to pass off the product as that of the plaintiff and that the defendant was using exactly the same type face for the name as did the plaintiff.

The defendant denied that its product was similar to or that it infringed the plaintiff’s trademark as alleged. The defendant therefore challenged the plaintiff’s claim for an interlocutory injunction.

 Held:

1. In interlocutory applications the court cannot conclusively determine the issue of infringement of copyright; it can only decide whether the plaintiff’s suit has a probability of success.

2. The Trade Marks Act (cap) section 7 gives the proprietor of a trade mark exclusive user of that trade mark and any person who wishes to use it has to do so with a license from the proprietor.

 3. The evidence before the court confirmed that there were striking similarities and resemblance in the defendant’s trade mark and those of the plaintiff.

4. The similarities between the two trademarks were sufficiently similar as to cause confusion to consumers particularly when it was appreciated that the defendant, a new entrant in the market, had the freedom to choose any other name. It is probable that the choice of similar name was not accidental.

 5. In the cases concerning trade marks reference to other cases is not of much assistance and each case must ultimately be decided on the basis of its own peculiar facts.

 6. The law on the subject of passing off is clear and settled andss the principles are that
a) the plaintiff must establish a goodwill or reputation attached to the goods or services with an identifying get-up,
b) the plaintiff must demonstrate a misrepresentation by the defendant to the public leading or likely to lead the public to believe that the goods offered by him are the goods or services of the plaintiff;
c) he must demonstrate that he suffers or, in a quia timet action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff.

7. The plaintiff’s case is strengthened by the fact that he did not acquisesce in the use of the trademark by immediately lodging a complaint with the industrial property office which complaint was the subject of these proceedings.

8. The acts of the defendant constituted infringement and also raised a real probability of confusion to customers; which confusion was likely to cause irreparable damage to the plaintiff which could not be adequately compensated by an award of damages.

Application allowed, injunction granted.

Cases

1. Giella v Cassman Brown & Co Ltd [1973] EA 358

 2. Reckitt and Colman Products Ltd v Borden Inc and others [1990] 1 WLR 491

 3. Parke Davis and Co Ltd v Opa Pharmacy Ltd [1961] EA 556

4. Cut Tobacco Kenya v British American Tobacco (K) Ltd Civil Appeal No 126 of 2000

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXIX rules 1, 2

2. Trade Marks Act (cap 506) section 7

 Advocates

Mr Oyiembo for the Defendant.