Criminal Practice and Procedure – bail –renewed application for bail – whether a rehearing of a previous bail application . Criminal Practice and Procedure – bail – whether an applicant is entitled to apply for bail as many times as he can – section 123(3) Criminal Procedure Code.

Criminal Practice and Procedure – bail pending trial – paramount consideration in granting of such bail - whether seriousness of the offence in terms of sentence to be meted out on conviction a relevant factor in an application for bail. Constitutional Law – presumption of innocence – mere charging of an accused with an offence not a relevant factor in deciding bail application.

Ali v Republic

High Court, at Nairobi

October 2, 1989

Porter J

Criminal Appeal No 1152 of 1988

(Appeal from original conviction and sentence in Criminal Case No 2107 of 1987 of the Second Class District Magistrate’s Court at Makadara)

Criminal Practice and Procedure – accused charged with subjecting a tenant to annoyance but section quoted incorrect – whether conviction can be sustained – section 30 Rent Restriction Act (Cap 296).

Held:

Section 30 under which the appellant is charged does not create an offence.

The result therefore is that the error in the charge is uncurable.

Appeal allowed.

Cases

1. Uganda v Opidi [1965] EA 614

2. Sabur v R [1958] EA 126

Statutes

Rent Restriction Act (cap 296) sections 29, 30

Kimani v Republic

High Court, at Nairobi

July 19, 1989

Porter J

Criminal Appeal No 1028 of 1987

Landlord and Tenant – protected tenancy – landlord issuing notice of termination on grounds other than contained in the Rent Restriction Act (cap 296) Act – whether notice valid – Rent Restriction Act section 14(1).

Landlord and Tenant – protected tenancy – landlord having sold premises – whether such landlord has capacity to issue termination notice.

Criminal Practice and Procedure – charge – form of charge – charge citing the wrong section of statute – whether defect in charge curable – Criminal Procedure Code (cap 75) section 382.

The appellant was convicted of willfully subjecting a tenant to annoyance with intent to compel the tenant to vacate premises contrary to section 30 of Rent Restriction Act (cap 296).

The issue throughout the trial and on the appeal was whether there was a landlord–tenancy relationship between the appellant and the complainant at the time of commission of the offence.

The property in issue had been bought by the appellant from a Mrs Munah who after completion of the sale issued a notice to the complainant requiring him to vacate and also indicating he could negotiate new rent with the appellant.

It was contended by the prosecution that the purported notice did not comply with section 14(1) of Rent Restriction Act as it did not give as a reason for termination the grounds set out thereunder. Besides, having sold the premises, the former landlord could not validly thereafter issue a notice of termination.

The trial magistrate found that there was a landlord–tenant relationship between the complainant and the appellant and therefore his act of removing the complainant’s furniture from the premises constituted an offence under the Act.

Held:

1. Possession may not be by a landlord recovered unless the notice given is given for one of the reasons set out in one of the subsections of section 14(1) of the Rent Restriction Act (cap 296).

2. The notice in question did not specify the ground upon which possession was required.

3. It could not be said that Mrs Munah required possession on any of the grounds set out in section 14 as she had already sold the property.

4. Therefore the appellant had no right to attempt to obtain possession.

5. The offence should have been charged under section 29 of the Act. The trial magistrate ought to have noticed that the charge was laid under the wrong section but no injustice arose from that. The defect would be cured under section 382 of the Criminal Procedure Code (cap 75).

Cases

No cases referred to.

Statutes

1. Rent Restriction Act (cap 296) sections 2(1), 14(1), 29, 30

2. Criminal Procedure Code (cap 75) section 382

Tarimo v Republic

High Court, at Nairobi

June 15, 1989

Porter J

Criminal Appeal No 1446 of 1986

Criminal Practice and Procedure – repatriation – accused convicted and sentenced for theft of motor vehicle under Penal Code (cap 63) section 278A – trial magistrate making “order of repatriation” of accused – whether magistrate having jurisdiction to make such order – Penal Code section 26A.

The appellant was tried in a magistrate’s court and convicted for theft of a motor cycle contrary to section 278A of the Penal Code (cap 63).

In addition to sentencing the appellant to 12 months imprisonment and 6 strokes of the cane, the magistrate made an “order of repatriation” against him.

The appellant appealed.

Held:

1. The trial magistrate had no jurisdiction to make an order for repatriation.

2. The magistrate only had jurisdiction to make recommendation to the Minister that the appellant be removed from and remain out of Kenya.

3. The appellant had been properly convicted and his sentence was not excessive.

Order of repatriation set aside and substituted.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 26A, 278 A

Advocates

Appellant absent not wishing to be present

Onyango for the Respondent

Gitau & another v Republic

High Court, at Nairobi

June 14 , 1989

Porter & Tank JJ

Criminal Appeal No 1214 of 1988

Evidence – expert evidence – handwriting expert – the nature of evidence necessary to be presented to the court by a handwriting expert – document examiner adducing evidence in court without cross-examination – whether it is proper for the court to rely entirely on such evidence.

Evidence – confession – confession by co-accused – how such confession used against accused person.

The two appellants were convicted in a magistrate’s court on a series of charges relating to some cheques which were stolen and then forged.

The only evidence which connected the appellant with the stolen cheques was that he was found to be the operator of the account through which the forged cheques were paid.

Police investigation revealed that the 1st appellant’s last name was similar to the operator of the suspect account. No one was able to identify him as the person who had opened the account and the only available evidence was that of a document examiner who looked at the account opening documents and said that the specimen signature card and the sole proprietorship letter with which the account was opened were written in the same hand as specimen signature written by the 1st appellant.

The police did not ask the document examiner to check the paying-in slips with which the forged cheque were banked and the cheques drawn against the suspect account for any similarities.

The 2nd appellant however, made an extra judicial statement in which he implicated the 1st appellant. He claimed the 1st appellant told him he was able to cash the cheques through the suspect account.

Held:

1. The most a handwriting expert can say in an appropriate case is that he does not believe a particular writing was by a particular person or positively that the writings are so similar as to be undistinguishable.

2. The record and judgment must show that the learned trial magistrate satisfied himself of the accuracy of the expert upon whose opinion he relies. If the relevant material is before him and he applies his mind to the matter and there is no cross examination, no objection can be taken.

3. The confession of a co-accused can only be used to corroborate or supplement evidence in exceptional cases where there is substantial evidence to which the confession may be added.

Cases

1. Salum v Republic [1964] EA 126

2. Onyango v Republic [1969] EA 362

3. Wainaina v Republic [1978] KLR 11

4. Asira v Republic [1986] KLR 227

5. Ozio v R [1957] EA 36

6. Chaama Hassan Hasa v Republic [1976] KLR 6

7. Anyangu and Others v Republic [1968] EA 329

8. Gopa and Others v Republic (1953) 20 EACA 318

9. Republic v Kipkering Arap Koske (1949) 16 EACA 135

Statutes

Evidence Act (cap 80) sections 48(1), 50, 51, 52, 53, 63

Gibson Kimani v Republic

High Court, at Nairobi

June 14, 1989

Porter & Tank JJ

Criminal Appeal No 1253 of 1988

Sentencing – principles of sentencing – prosecution referring to matters implicating the accused with offences other than the one charged – whether proper for court to take those matters into account in sentencing the accused – whether proper for the prosecution to address the court on the seriousness of the offence.

The appellant was convicted on his own plea of guilty to being in possession of a seditious publication contrary to section 57(2) of the Penal Code (cap 63). He was sentenced to seven years imprisonment which appeared to be the maximum sentence for the offence.

The appellant, a first offender, appealed against his sentence and contended that the sentence was as a result of the court taking into account additional matters urged by the prosecution implicating him with other offences with which he was not charged.

Held:

1. Reading section 72 of the Constitution and section 207 of the Criminal Procedure Code (cap 63) together, the court is to sentence the accused only for the offence with which he is charged and the facts to be given are the facts relating to that charge.

2. In consideration of conviction, the allegation that other offences have been committed even if admissible would be more prejudicial to the accused than probative and should be excluded.

3. If the prosecution wishes to have the accused dealt with for other offences which are not charged then the accused can be charged with these offences.

4. It is not for the prosecutor to tell the court of his views as to the seriousness of the offence.

Appeal allowed sentence reduced

Cases

1. Republic v Nurali A Ghulamhussein [1959] EA 743

2. Rex v Gulam Hussein (1946) 13 EACA 167

3. Adan v Republic [1973] EA 445

4. Shiani v Republic [1972] EA 557

5. Republic v Malakwen arap Kogo (1933) 15 KLR 115

6. Republic v Seguja (1935) 15 EACA 85

7. Republic v Robinson (1969) CLR 207

8. Ogalo s/o Owoura v R (1954) 21 EACA 270

9. Nilsson v Republic [1970] EA 599

Statutes

1. Penal Code (cap 63) section 57(2)

2. Constitution of Kenya section 72(1)

3. Criminal Procedure Code (cap 75) sections 207, 216

4. Evidence Act (cap 80) sections 5 -16; 57(1)(a), 57(1)(aa)

Sayeko v Republic

High Court, at Nairobi

 May 22, 1989

Porter & Tank JJ

Criminal Appeal No 1384 of 1987

(Appeal from original conviction and sentence in Criminal Case No 4550 of 1987 of the Chief Magistrate’s Court at Nairobi, J A Mango Esq)

Sentencing – severity of sentence – matters the court will consider in an appeal against a sentence.

The appellant was convicted on his own plea of guilty to the offence of doing an act prejudicial to the interest of the Republic of Kenya contrary to section 3(1) (c) as read with section 220 of the Official Secrets Act – (Cap 187). He was sentenced to 7 years imprisonment.

The appellant initially appealed against conviction and sentence but withdrew the appeal on conviction and opted to proceed with the appeal on sentence only.

His advocate argued that the sentence meted out by the trial magistrate was excessive in view of his plea of guilty and co-operation with the police. Counsel further argued that the trial court failed to regard the appellants age of 25 years, level of education and the fact that he was a first offender.

In sentencing the appellant, the trial magistrate had remarked that he considered the offence committed by the appellant unforgivable.

Held:

1. Use of strong language while trying to exercise a judicial discretion in a proper way is unwise. The trial magistrate was right to express disgust at the appellant’s behaviour but there is no offence that can be said to be unforgivable.

2. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a different sentence.

3. The appellate court will not ordinarily interfere with the discretion exercised by the lower court unless it is evident that the lower courts has acted upon some wrong principle or overlooked some material factor or the sentence is manifestly excessive in the circumstances of the case.

4. A plea of guilty from a first offender requires recognition as a matter of principle.

5. The facts of this offence showed that even though the offence itself was plainly serious it was an offence of lower rather than higher in the scale of sentencing for that offence. The sentence was excessive.

Appeal allowed, sentence reduced to 4 years imprisonment.

Cases

1. Ogalo s/o Owoura v R (1954) 21 EACA 270

2. Nilsson v Republic [1970] EA 599

3. Wanjema v Republic [1971] EA 493

4. Shiani v Republic [1972] EA 557

5. Wanyoni v Republic [1980] KLR 116

Statutes

Official Secrets Act (cap 187) sections 2(2), 3(1)(c)

Advocates

Mr Ocharo for the Appellant

Mr Chunga for the Republic/Respondent

Muchiri v Republic

High Court, at Nairobi

 May 12, 1989

Porter, Tank JJ

Criminal Appeal No 302 of 1988

(Appeal from the original sentence and conviction of the Resident Magistrate’s Court at Nairobi, J A Mango Esq CM, dated 3rd March 1987, in Criminal Case No 1429 of 1987)

Criminal Practice and Procedure – plea – plea of guilty – whether long period in custody renders plea of guilty not unequivocal – whether appeal against conviction competent – Criminal Procedure Code (cap 75) section 348 A.

The appellant was convicted on his own plea of guilty. In this appeal, he argued that he had been kept in custody for 51 days before he was brought to court and that there was such a breach of his constitutional rights that it could not be said that his trial was satisfactory.

The Republic however raised a preliminary objection that the appellant’s plea being unequivocal no appeal lay by reason of section 348 A of the Criminal Procedure Code (cap 75).

Held:

1. Mere period of police custody cannot be a factor in determining whether or not a plea was unequivocal.

2. It is question of what is done during that period which is relevant.

3. If no allegation appears on record of what was done then the court cannot consider any possibilities later raised.

Appeal dismissed.

Cases

Olel v Republic [1989] KLR 444

Statutes

1. Criminal Procedure Code (cap 75) sections 36, 37, 348A

2. Constitution of Kenya section 72(3)

Mathea & another v Republic

High Court, at Nairobi

April 27, 1989

Porter J

Criminal Appeal No 1322 of 1988

Criminal Practice and Procedure – trial – court failing to record which of the alternative charge the accused was pleading to – record also not showing which language the proceedings were conducted in – whether trial proper – whether conviction should be allowed to stand.

Criminal Practice and Procedure – retrial – when a retrial can be ordered – matters the court should consider.

The appellants were charged with alternative charges of attempted rape and indecent assault. The trial magistrate appeared to have put one charge to them and did not show on record which charge the appellants were pleading to.

The record further failed to show which language the trial was conducted in.

Held:

1. The appellants’ trial was unsatisfactory and the conviction should not be allowed to stand.

2. A retrial could take place where it is in the interest of justice and no injustice is likely to be caused to the appellant. However, each case must depend on its own facts.

3. Cases of injustice have usually involved a consideration of whether the appellant has served an appreciable term of imprisonment. This had not happened in this case as the appellants had been released on bail after 22 days.

4. A retrial should not be ordered unless the appellate court is of the opinion that a conviction might result. The facts in this case indicated that there might be a conviction if the available evidence was properly considered.

Appeal allowed, retrial ordered.

Cases

1. Wanjiru v Republic [1975] EA 5

2. Rex v Vashanjee Liladhar Dossani (1946) 13 EACA 150

3. Koech v Republic [1968] EA 109

4. Greyson Kimbio v R [1979] KLR 132

5. Braganza v R [1957] EA 152

Statutes

No statutes referred.