Shah v Republic

Court of Appeal, at Nairobi February 7, 1984

Simpson CJ

Miscellaneous Criminal Application No 35 of 1984

Bail – application for – bail pending appeal – granting of bail for medical reasons.

The applicant, who was charged with the offence of theft, applied to be released on bail pending appeal arguing that he needed a diet suitable for his diabetic condition.

Held:

As it had been shown that the accused could only obtain a diet suitable for his condition at home, he would be granted bail.

Bail granted on terms.

Cases

No cases referred to.

Statutes

No statute referred.

Makayora v Republic

Court of Appeal, at Mombasa October 22, 1981

Madan, Miller JJA & Simpson Ag JA

Criminal Appeal No 87 of 1981

Criminal practice and procedure trial process - accused’s failure to take part in trial in protest of partiality of court - entitlement to be tried by another court - effect of failure to object to admission of a confession statement obtained through duress at initial trial.

The appeal arises from a conviction upheld by the High Court on a count of conspiracy to commit a felony and another count of preparation to commit a felony. During the trial before the magistrate’s court, the accused had protested to the magistrate that he did not trust the impartiality of the court. The magistrate overruled him and proceeded to hear the case upon which the accused refused to take part in the proceedings. The magistrate later convicted him and on his appeal to the High Court his conviction was upheld.

His appeal to the court of appeal is grounded on the admission of a confession procured through beating and the failure of the learned judge of the High Court to take into account the possibilities of duress applied in obtaining the confessed statement.

Held :

1. Where the appellant’s objection to the trial court is spurious and without merit the magistrate can dismiss his plea.

2. If the appellant of his own volition refuses to object to the admission of a statement even when given the opportunity by the magistrate he cannot later object to it.

3. That the confession in the appellant statement had been corroborated by evidence of his presence at club in possession of offensive and dangerous weapons

4. The appellant was properly convicted, based on the evidence and facts before the court. If the statement was obtained by duress, the accused have raised the objection at the earliest opportunity which he was given by the magistrate. The accused cannot later as an afterthought object to such a statement.

Appeal dismissed.

Cases

No case referred to.

Statutes

1. Firearms Act (Cap 114) Section 34(2)

2. Penal Code (Cap 63) Section 308(1)

3. Criminal Procedure Code (Cap 75) Secton 211

Mutuku v Republic

Court of Appeal, at Mombasa October 22, 1981

Madan, Miller JJA & Simpson Ag JA

Criminal Appeal No 93 of 1981

Criminal practice and procedure - enhancement of sentence after inordinate delay - whether such enhancement is lawful where the accused is not the cause of delay.

The accused had been charged and convicted of a charge of two counts of stealing contrary to Section 275 of the Penal Code. He was fined Kshs 750 or six months imprisonment in default on each count and the AG was dissatisfied with the sentence and applied for the enhancement of it. In the interim the accused had lost his job and was in the process of beginning a new career with an insurance firm. The accused appealed to the court of appeal against the enhancement citing delay on the part of the prosecution and that the proceeding would impact his life negatively.

Held :

1. The delay on the part of the prosecution was inordinate and the resultant enhancement of the sentence was prejudicial to the general welfare of the accused.

2. Enhancement of the sentences denied and the sentence imposed by the Magistrate restored.

Appeal dismissed.

Cases

No case referred to.

Statutes

Penal Code (Cap 63) Section 275

 v Agip (Kenya) Ltd

Court of Appeal, at Nairobi February 4, 1981

Madan, Miller JJA & Simpson Ag JA

Civil Appeal No 45 of 1980

Civil practice and procedure - judgment - entered in default of appearance - matter subsequently proceeded to formal proof hearing - defendant not served with notice of hearing – order granted upon proof ex parte - application to set aside ex parte judgment on ground that notice of hearing was not given as per Order IXA rule 8 as read with Order IXB rule 1.

Ex parte Judgment - application to set aside ex parte judgment for failure to give due notice to defendant - Notice - failure to notify under Order IXA rule 1(1).

The defendant entered appearance but failed to file a defence. Judgment was entered in default and the matter fixed for formal proof. The defendant failed to appear and judgment was given upon proof ex parte. The defendant subsequently made an application to set aside this judgment and it was granted ex parte. On appeal the main issue raised was the failure to notify defendants of the hearing of formal proof as required under the rules.

Held :

1. The fact that considerable damage would result is not sufficient reason for depriving the defendant of the opportunity to file a defence. Where a party has entered appearance he must be given reasonable notice of the hearing of final proof to enable him to defend.

2. The respondent having obtained judgment against the appellant in violation of the rules of procedure ord IXA rule 8, the Court cannot justifiably uphold such a judgment, and as a result that improperly obtained ex parte judgment must be set aside together with all subsequent orders.

3. The ex parte judgment and all subsequent orders are hereby set aside and the appellant granted leave to file a defence out of time within 14 days

Appeal allowed.

Cases

No case referred to.

Statutes

Civil Procedure Act (Cap 21, Sub Leg) Order IXA rules 1(1), 8, 9, 10 & IXB rule 1(1) and Order VI rule 11

Advocates

Pherozee Nowrojee for Respondent

Gakere v Ngigi

Court of Appeal, at Nairobi January 29, 1981

Madan, Potter JJA & Simpson Ag JA

Civil Appeal No 36 of 1980

Negligence - contributory negligence in a traffic accident involving collision of two motor vehicles - assessment of the apportionment of blame to both drivers - discretion of judge in apportionment - reasonable avoidable steps expected of a driver.

Damages - general and special damages for injuries - assessment and apportionment of quantum of damages for contributory negligence

The respondent was involved in a road accident involving his car and the car of the appellants. At the High Court, the appellants were found to have been negligent and the respondent was also found to have contributed to the accident. The respondent’s contributory negligence was assessed at 10% while the appellants were ordered to pay the respondent special and general damages assessed at 90% being their negligent part in the accident. The appellants disagreed with the assessment of the High Court and appealed to the Court of Appeal on the basis that the 10% contributory negligence was erroneous in that the respondent was equally responsible and that the general damages were manifestly excessive.

At the Court of Appeal the appellants sought to prove that the respondent failed to slow down or take any avoiding action having noticed the appellant’s car being driven in a zigzag manner. That on this basis the High Court should have apportioned damages equally.

Held :

1. The assessment of the degree of contributory negligence is within the discretion of the Judge.

2. That an alert and reasonable, competent driver could probably have avoided the collision, and the Judge was justified in finding some slight degree of negligence on the part of the plaintiff but the decision cannot be interfered with by the Appeal Court unless it can be proved that the judge acted on the wrong principle or misapprehended the relevant facts while exercising this discretion.

3. Assessment of damages must take into account the facts of each case, but it is wise for judges to take into account the issue of inflation when relying on old authorities. However reliance on old authorities does not necessarily mean that the judge acted on the wrong principle of law.

4. The appellants have failed in showing that the judge acted on the wrong principle of law.

5. The plaintiff was contributorily negligent.

Cases

1. Bhogal v Burbridge and Another [1975] EA p 285

2. Merrit v Strutt 10 - 319 in Kemp and Kemp - Vo II

3. Lewis v Gray (No 719)

4. Hopkins v Mccluskie - Beatie (No 720)

Statutes

No statute referred to.

Advocates

Mr Satish Gautama & Pramond Patel for Appellants

Mr Bowry for Respondent

Osodo v Barclays Bank International Ltd

Court of Appeal, at Nairobi November 28, 1980

Madan, Potter JJA & Simpson Ag JA

Civil Appeal No 11 of 1980

Civil Procedure and Practice - Summary Judgment - existenceof triable issues - when can one be denied leave to defend - exercise of discretion under Order XXXV of Civil Procedure Rules (Cap 21).

Partnership - liability of a new partner for debts of partnership incurred prior to his entering the partnership.

An appeal against Summary Judgment entered against the appellant and his co-defendant (both partners in a firm known as Alfa Agencies) in the High Court.

The suit was filed in the High Court by the Respondents (the bank) for recovery of moneys in respect of overdraft facilities and other banking accommodation provided to them as partners of Alfa Agencies. The appellant had pleaded in his defence that he joined the partnership after the overdraft facilities had been cancelled by the bank. The respondent had then applied under Order XXXV of the Civil Procedure rules for Summary Judgment to be entered against the defendants. In his reply the appellant had deponed that he joined the partnership after the overdraft facilities were withdrawn. The Judge entered Summary Judgment against the appellant because he did not find any matters to suggest that the appellant was not to assume the debt.

Held :

1. The appellant being a new partner is not liable for the debts and liabilities of the partnership before he became partner.

2. Where there are triable issues raised in an application for summary judgment, there is no room for discretion and the court must grant leave to defend unconditionally.

Appeal allowed.

Cases

No case referred to.

Statutes

1. Partnership Act (Cap 29) Section 11

2. Civil Procedure Act (Cap 21, Sub Leg) Order XXXV

Advocates

Oraro & Rachier for Appellant

Kaplan & Straton for Respondent