Civil Procedure - application for an injunction or stay of execution pending appeal - Law Society challenging decision allocating land on which a court is built to a private company - whether the Law Society had an arguable appeal.

Westmont Power Kenya Ltd v Bosley Frederick

& another t/a Continental Traders &

Marketing

Court of Appeal, at Nairobi June 6, 2003

Kwach, Shah & Owuor JJ A

Civil Application No NAI 135 of 2003 (69 of 2003 UR)

(Application for a stay of execution of the decree of the High Court

of Kenya at Nairobi pending the hearing of the appeal against the

decision of the High Court Nairobi (Kuloba, J) given on

3rd April, 2003 in HCCC No 1700 of 2001)

Civil Practice and Procedure - stay of execution- application for summary judgment - defence alleging fraud and illegality of the contract – summary judgment entered - applicant applying for stay of execution pending appeal - appeal arguable - principle applicable in granting stay of execution.

Civil Practice and Procedure - summary judgment - defendant issuing cheques to plaintiff - defendant alleging cheques issued under coercion - cause of action based not on cheques – cause of action based on oral agreement - whether court obliged to enter summary judgment when facts are in issue.

The applicant applied for stay of execution pending appeal against summary judgment entered in favour of the respondent. The applicant had in its defence alleged that the oral agreement upon which the cause of action was founded was fraudulent, illegal and unenforceable. The applicant had issued cheques to the plaintiff which it later claimed were issued under coercion.

Held:

1. It is quite unusual to enter summary judgment when serous allegations of fraud and other wrong-doings are made. Such issues could only be decided during a proper trial and not on conflicting affidavits.

2. It was certainly arguable whether a cause of action based, not on cheques, but on an oral agreement can properly be the subject of an application for summary judgment when facts are in issue.

Application allowed.

Cases

No cases referred to.

Statutes

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

2. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2) (b).

Mwangi & another v Machira t/a Machira & Co Advocates

Court of Appeal, at Nairobi June 4, 2003

Shah JA

Civil Application No NAI 110 of 2003 (59-2003 UR)

(An application for extension of time to file and serve the Notice of

Appeal and Record of Appeal, respectively, out of time in an intended

appeal from a judgment of the High Court at Nairobi (Kasanga Mulwa, J)

delivered on the 7th day of September, 2001 in HCCC No 1709 of 1996)

Civil Practice and Procedure - extension of time – to file appeal – original appeal struck out – applicable principles in allowing extension of time – where appeal is of public interest – where award appealed from is substantial.

The applicant’s original appeal was struck out as a result of it having been filed out of time. The applicants then made this application for extension of time.

Held:

1. A period of two weeks or so to mount an application like this was not too long as to qualify for the epithet “inordinate delay”. This application was therefore lodged within a reasonable time.

2. The fact that the award of damages for defamation which was the subject of this appeal was substantial and the fact that the issue of large awards in libel cases have been the subject of discussion in Kenya and the print as well as electronic media ought to know where they finally stand were important considerations. It could not be said that the intended appeal was unmeritorious or frivolous.

3. The respondent would suffer no prejudice if this application was allowed.

Application granted.

Cases

1. Kuwinda Rurinja & Company Limited v Kwinda Holdings Limited & others Civil Application No NAI 243 of 1998

2. Kamau & another v Mwichigi Civil Application No NAI 26 of 1999

3. Kungu v Kungu & 2 others Civil Application No NAI 306 of 1996

4. Davdra & another v Davdra & others Civil Application No NAI 146 of 1998

5. Lt Col Igweta v M’Ethare & another Civil Application No NAI 270 of

2001

Statutes

No statutes referred.

Advocates

Mr Machira for the Respondent

Beatrice Wanjiru Kinyua v Republic

Court of Appeal, at Nyeri May 16, 2003

Shah, O’Kubasu & Keiwua JJ A

Criminal Appeal No 42 of 2003

(Appeal from the conviction and sentence of the High Court at Nyeri,

Juma J dated 18 April 2002 in High Court Criminal Case No 24 of 2002)

Evidence – evidence of a minor - child of tender years as a witness – procedure in admitting such evidence.

Criminal Practice and Procedure – defences – alibi defence – duty of the court to consider the defence.

The appellant was convicted in the High Court for the offence of murder. She appealed on the grounds that, the trial judge erred in law and fact in failing to properly direct himself on the defence of alibi raised by the appellant and in failing to warn himself of the danger of admitting the uncorroborated evidence of a minor and on basing a conviction on such evidence.

Held:

1. The young boy witness was examined by the trial judge as to whether he understood the nature of the oath. The judge was satisfied that the child understood the nature of the oath and hence the child gave evidence on oath. The trial judge very properly adopted the correct procedure in such a situation.

2. In summing up to the assessors, the trial judge stated that there was need for corroboration in respect of evidence of a young boy. The trial judge could not be faulted on the issue of corroboration

3. The trial judge had the correct approach on the defence of alibi. He considered the prosecution evidence vis a vis what the appellant and her witness said and in the end was satisfied that the defence of alibi was false.

Appeal dismissed.

Cases

1. Okeno v Republic [1972] EA 32

2. Kolil v R [1959] EA 92

3. Ssentale v Uganda [1968] EA 365

4. Muiruri v Republic [1982-88] 1 KAR 150

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr Nderi for the Appellant.

Criminal Practice and Procedure - appeal – summary rejection of appeal – appellant convicted on uncorroborated evidence of a minor – appeal summarily rejected – when summary rejection of appeal can be invoked.

Criminal Practice and Procedure - appeal – summary rejection of appeal – appellant convicted on uncorroborated evidence of a minor – appeal summarily rejected – when summary rejection of appeal can be invoked.

The appellant was tried and convicted of the offence of incest contrary to section 166 (1) of the Penal Code. The conviction was based on the uncorroborated evidence of a minor. His appeal to the High Court was summarily rejected. He appealed against the summary rejection of the appeal.

Held:

1. The jurisdiction to summarily reject an appeal ought to be invoked in clearest of cases.

2. In this case, the issue of whether there was cogent corroboration of the complainant’s evidence was a matter of mixed law and fact. Similarly, the issue of autrefois acquit was a matter of law and there could well be an argument that the sentence could be reduced.

3. The High Court judge ought to have heard the appellant on the 14 year sentence.

Appeal allowed. Summary rejection of the appeal quashed and direction given that the appeal admitted to hearing.

Cases

No cases referred to.

Statutes

1. Criminal Procedure Code (cap 75) section 352 (2)

2. Penal Code (cap 63) section 166 (1)

3. Evidence Act (cap 80) section 124

4. Public Health Act (cap 242) section 44 (1)

Ngera Kamau Wahome v Republic

Court of Appeal, at Nyeri May 16, 2003

Shah, O’Kubasu & Keiwua JJ A

Criminal Appeal No 61 of 2001

(Appeal from an order of the High Court at Nyeri (Juma, J)

dated 23rd May, 2000 in H C C Cr A No 86 of 2000)

Criminal Practice and Procedure - appeal – summary rejection of appeal – appellant convicted on uncorroborated evidence of a minor – appeal summarily rejected – when summary rejection of appeal can be invoked.

The appellant was tried and convicted of the offence of incest contrary to section 166 (1) of the Penal Code. The conviction was based on the uncorroborated evidence of a minor. His appeal to the High Court was summarily rejected. He appealed against the summary rejection of the appeal.

Held:

1. The jurisdiction to summarily reject an appeal ought to be invoked in clearest of cases.

2. In this case, the issue of whether there was cogent corroboration of the complainant’s evidence was a matter of mixed law and fact. Similarly, the issue of autrefois acquit was a matter of law and there could well be an argument that the sentence could be reduced.

3. The High Court judge ought to have heard the appellant on the 14 year sentence.

Appeal allowed. Summary rejection of the appeal quashed and direction given that the appeal admitted to hearing.

Cases

No cases referred to.

Statutes

1. Criminal Procedure Code (cap 75) section 352 (2)

2. Penal Code (cap 63) section 166 (1)

3. Evidence Act (cap 80) section 124

4. Public Health Act (cap 242) section 44 (1)

Kenya Shell Company Ltd v Charles

Court of Appeal, at Nyeri May 16, 2003

Tunoi, Shah & Keiwua JJ A

Civil Appeal No 7 of 2000

(Appeal from a Ruling and Order of High Court at Meru (Omwitsa CA)

dated 9.11.1999 in HC Misc Civil App No 70 of 1999)

Judicial Discretion – exercise of judicial discretion - interference with exercise of judicial discretion of the High Court by appellate court – circumstances in which the court may interfere with exercise of judicial discretion by lower court.

The appellant company appealed against a ruling of the High Court dismissing its application for extension of time on the grounds of laches and indolence. The appellant argued that the Commissioner of Assize in arriving at his decision failed to exercise his discretion judiciously and had ignored the wider interest of justice to have the case decided on its merits.

Held:

1. The decision whether or not to extend the time for appealing is essentially discretionary.

2. In general, the terms which the court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.

3. In the present case the Commissioner of Assize exercised his discretion judicially and not arbitrarily or capriciously as the delay involved was substantial and inordinate.

Appeal dismissed with costs.

Cases

Mbogo v Shah [1968] EA 93

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order IXB rule 8

Advocates

Mr Kimundi for the Appellant.

Criminal law - robbery with violence - appellant known to the complainant - offence committed at night - complainant recognizing the appellant – appellant convicted on evidence of only one eye witness - whether appellant properly convicted. Criminal Practice and Procedure - form of charge - charge sheet – charge sheet indicating appellants armed with “panga”- sword produced in evidence as weapon used - whether use of word “panga” instead of “sword” fatal to conviction.

Criminal law - robbery with violence - appellant known to the complainant - offence committed at night - complainant recognizing the appellant – appellant convicted on evidence of only one eye witness - whether appellant properly convicted.

Criminal Practice and Procedure - form of charge - charge sheet – charge sheet indicating appellants armed with “panga”- sword produced in evidence as weapon used - whether use of word “panga” instead of “sword” fatal to conviction.

The appellant was convicted by the trial magistrate of the offence of robbery with violence contrary to s 296(2) of the Penal Code. His appeal to the High Court was dismissed. The prosecution’s case was that both the appellant and the complainant hailed from the same village. The complainant was walking home at night when he was attacked by the appellant in the company of another person. The complainant recognized the appellant with the aid of a torch he was carrying.

The appellant appealed to the Court of Appeal alleging that his conviction was based on the evidence of only one eye witness and that the charge was fatally defective since it indicated he was armed with a panga whereas the police produced a sword as the weapon used during the robbery.

Held:

1. From the evidence recorded by the trial court, the findings thereon and the observations of the first appellate court, there was no mistake as to the identity of the appellant, hence he was properly found guilty of the offence for which he was convicted.

2. The use of the word “panga” instead of “sword” in the charge sheet was not fatal to the conviction and such use occasioned no prejudice to the appellant in as much as both are implements or weapons whose use is of the same effect.

Appeal dismissed.

Cases

1. Abdalla Bin Wendo v Republic (1953) 20 EACA 166

2. Roria v R [1967] EA 583

3. Kamau v Republic [1975] EA 139

4. Anjononi & others v R [1980] KLR 59

Statutes

Penal Code (cap 63) section 296(2)

Advocates

Mr Gachoka for Appellant

Mr Oluoch for State