Virginia Edith Wambui Otieno v Joash Ougo & another (No 3)

Court of Appeal, at Nairobi April 2, 1987

Miller CJ

Civil Appeal No 31 of 1987

Judges – disqualification of judge – advocate writing letter objecting to certain judges sitting in appeal – appeal bench not yet constituted and appeal not listed for hearing – whether advocate’s objection proper.

The applicant filed an appeal against the decision of the High Court. Before a bench had been constituted to hear the appeal, the court registry received a letter from her advocate in which he objected to certain judges sitting in the appeal.

The judges had previously presided over an interlocutory appeal in the same case in which they ordered the case to go for full trial in the High Court.

The applicant’s advocate wrote that while they sitting in the interlocutory appeal, the judges had made comments which appeared to fetter the High Court with their own view. He argued that if the appeal from the decision of the High Court were to go before the same judges, the same view may be expressed and justice will not be seen to have been done.

Held:

1. It is not an appropriate instance for a Chief Justice to disqualify judges from hearing a matter or case in their absence.

2. In order that justice may be seen to be done, the objection was to be dealt with in open court before the judges mentioned in the objection.

Objection referred to open court.

Cases

No cases referred to.

Statutes

No statutes referred.

Gichangi v Murage

Court of Appeal, at Nairobi March 2, 1981

Miller JA

Civil Application No 5 of 1980

Appeal - leave - application for leave to appeal out of time - conditions for granting such an application.

The appeal constitutes an application for leave to file a Notice of Appeal out of time against an ex parte order. The applicant made an application to set aside the ex parte order, was heard interpartes and the learned judge ruled that the applicant pays the thrown away costs within twenty eight days failing which, the respondent would be at liberty to enforce the ex parte judgement. The applicant failed to pay the costs and at the same time failed to lodge a Notice of Appeal against the High Court’s order within the mandatory fourteen days.

At the Court of Appeal the applicant pleaded that the reason for the delay or inability to file Notice of Appeal in time was due to failure to locate the case file both in his advocates chambers and at the High Court’s Registry.

Held :

1. That the applicant with sufficient time and facilities at hand failed to lodge a Notice of Appeal on time even in the knowledge that the appeal was not dependent on possession of the case file.

2. That the applicant had been granted an opportunity by the High Court to show good faith by depositing the costs and having squandered the opportunity, the grant of the appeal would achieve nothing that the High Court option would not have achieved.

Application dismissed.

Cases

No case referred to.

Statutes

Rule 74(2) Court of Appeal Rules (Cap 9, Sub Leg)

Advocates

Ms Waruhiu & Muite for Appellant

Ms Njoroge & Musyoki for Respondent

Republic v Zakaria Shilisia Agweyu

Court of Appeal, Nairobi

23rd January 1980

Sir James Wicks CJ, Miller & Potter JJ A

Criminal Appeal No 64 of 1979

Criminal law – evidence – corroboration – accomplice – statutory accomplice - not true accomplice - Prevention of Corruption Act (cap 65), section 3(2A).

Section 3(2A) of the Prevention of Corruption Act was intended to bring persons with a corrupt intention (whatever their alleged motive) within the Act and it is unrealistic to apply the provisions of section 3(2A) in such a way as to render a person an accomplice when he plainly was not such.

Ombere v The Republic [1979] Kenya LR 215 approved.

R v Mills (1978) 68 Cr App Rep 154, England CA, applied.

Josphat Mulwa Mukima v The Republic [1977] Kenya LR 5, EACA, explained.

Cases referred to in judgment:

1. Hall v R [1971] 1 WLR 298; [1971] 1 All ER 322, 55 Cr App Rep 108;
2. PC 2. Ombere v The Republic [1979] Kenya LR 215.
3. R v Hasham Jiwa (1949) 16 EACA 90.
4. R v Medcraft (1932) 23 Cr App Rep 16, England CCA.
5. R v Mills (Leslie) (1978) 68 Cr App Rep 154, England CA.
6. R v Mullins (1848) 3 Cox CC 526, 12 JP 776.
7. Sewa Singh Mandia v The Republic [1966] EA 315, EACA.
8. Uganda v Khimchand Kalidas Shah [1966] EA 30, EACA.

Appeal

The prosecution appealed to the Court of Appeal (Criminal Appeal No 64 of 1979) against the decision of Cotran J in High Court Criminal Appeal No 647 of 1979 on 12th October 1979 allowing the appeal of Zakaria Shilisia Agweyu (the respondent to this appeal) against his conviction and sentence for corruption. The facts are set out in the judgment of the court.

Oraro for the Respondent.

Njeru v Republic

Court of Appeal, at Nairobi

May 25, 1979

Wicks CJ & Miller JA

Criminal Appeal No 4 of 1979

(Appeal from a judgment of the High Court at Nairobi (Trevelyan & Hancox JJ in Misc Criminal Application No 4 of 1979 dated 29th January 1979)

Constitutional Law – whether right of appeal to the Court of Appeal lies in respect of decision made by High Court under section 84 of the Constitution.

Appeals – whether court of Appeal jurisdiction to entertain appeals in absence of statutory provision conferring jurisdiction – section 64(1) of Constitution of Kenya.

Statutory Interpretation – pure law – not defined by any judicial authority.

This appeal arose out of the decision of the High Court dismissing an application made under section 84(1) and (2) of the constitution.

The state raised a preliminary objection that the Court of Appeal had no jurisdiction to hear the appeal as parliament only provided for appeals to the Court of Appeal against decision of the High Court arising out of the Penal Code in the Criminal Procedure Code and from decision in Civil matters in the Civil Procedure Act.

The applicant however contended that the word “I am” employed in section 64(1) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act included common law and that the Court of Appeal had a general supervisory role over the judicial process and consequently hears appeals from all decisions of the High Court unless it is express excluded by statute.

Held:

1. It is well established that there is nor right of appeal apart from statute either it is expressly granted by statutory authority or it is not. There is no right of appeal by mere implication or by reference.

2. The Court of Appeal was established by section 64(1) of the Constitution to have such jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law. That jurisdiction is not in any may increased by section 3(1) of the Appellate Jurisdiction Act.

3. The has no jurisdiction to hear appeals from decisions of the High Court exercising its jurisdiction under section 84 of the constitution.

4. Pure law is not defined, all there is in an application of it.

5. The principles of pure law have no application in the determination of the jurisdiction of the Court of Appeal and there is doubt it has any application in a Court of Law.

Preliminary Objection Sustained

Cases

1. Munene v Republic (No 2) [1978] KLR 105

2. Mudavadi v Kibisu & another [1970] EA 585

3. National Telephone Company Ltd (in liquidation) v His Majesty’s Postmaster General [1913] AC 546

4. Onslow v Commissioners of Inland Revenue (1890) 25 QBD 465

5. Re a Solicitor [1934] 2 KB 463

6. Reg v Keepers of the Peace and Justices of the County of London (1890) 25 QBD 357

7. Secretary of State for India v Chelikani Rawa Rao & others (1916) LR Ind Appl 192

8. Rangoon Btataoung Co Ltd v The Collector (1912) 39 Ind Appl 197

9. Sandlack Charity Trustees v North Staffordshire Railway Co (1877) 3 QBD 1

10. Attorney General of Tanganyika v Buhemba Mines Ltd

11. Cowasjee Dinshaw & Bros Ltd v Cowasjee Staff Association [1961] EA 436

12. Uganda v Lule [1973] EA 362

13. Bullows v Dubois (1924-26) 10 KLR 140

14. Republic v Nealon (1950) 17 EACA 120

15. Republic v Jwisi s/o Marwa (1933) 15 KLR 97

16. Ralph v Republic [1960] EA 310

17. Mburu Kinyua v Gachini Tuti [1978] KLR 69

Statutes

1. Constitution of Kenya sections 44(1), 44(5), 64(1), 84(1), 84(2)

2. Constitution of Kenya of 1963 section 14-27, 28, 176(1), 176(3), 180

3. Constitution of Kenya (Amendment) Act 1965 section 3

4. Constitution of Kenya (Amendment) Act 1969 sections 70-83, 84

5. Constitution of Kenya (Amendment) Act 1977

6. Appellate Jurisdiction Act (cap 9) section 3(1)

7. Criminal Procedure Code (cap 75) sections 360, 361(1)

8. Medical Practitioners and Dentists Act (cap 253)

9. Civil Procedure Act (cap 21)

10. Supreme Court of Judicature Act 1873 [UK] section 6, 19

11. Supreme Court of Judicature (Consolidation) Act 1925 [UK] section 27

12. Constitution of India section 132

13. East African Protectorates (Court of Appeal) order in Council 1902

14. East African Protectorates (Court of Appeal) order in Council 1906

15. East African Protectorates (Court of Appeal) order in Council 1909

16. East African (Court of Appeal) order in Council 1950 section 16(1)

17. East African (Court of Appeal) order in Council 1921 Article 2

18. East African (Court of Appeal) order in Council 1961 section 5(1)

19. Railway and Canal Traffic Act 1873 [UK]

20. Railway and Traffic Act 1888 [UK] section 17

21. Telegraph (Arbitration) Act 1909 [UK] sections 1, 2

22. Judicature Act 1873 [UK] section 19

23. Solicitors Act 1932 [UK]

24. Land Acquisition Act 1894 [India] section 54

25. Stamp Ordinance 1931 [UK]

26. Appellate Jurisdiction Ordinance (cap 451) [Tanzania] sections 7(1), 7(1)(c)

27. Court of Appeal Ordinance (cap 7) [Aden] section 6

28. Judicature Act [Uganda] section 40(1)

29. Judicature Act (cap 8) section 3(1)

30. Kenya Independence Order in Council 1963 section 3

31. National Assembly and Presidential Elections Act 1969 section 19

32. Kenya Order in Council 1963 section 176

Advocates

Mr Mwirichia for the Appellant.

Mr Muttu for the Respondent.