...

.

[RULING]

Civil Procedure – stay of execution – application for the stay of execution of a decree pending the hearing and determination of an appeal – Court of Appeal Rules rule 5(2)(b) – applicant’s advocate failing to disclose that a previous application for stay had been denied by the High Court and that a previous appeal had been struck out – matters the court will consider in an application under rule 5(2)(b) - whether the appeal is arguable and secondly, whether if the application is refused, the results of the appeal if successful, would be rendered nugatory

Isaack Muchiri Wanjohi v Republic

High Court, at Nyeri March 17, 1993

Tunoi J

Criminal Appeal No 15 of 1993

(From Original Conviction and Sentence in Criminal Case

No 312 of 1992 by Njuguna Kimani - RM)

Charge – substitution of – where its found that the facts of the major charge constitute a minor offence – whether accused should be convicted of the minor offence though not charged with it - where there are more than one accused persons – whether charge should be reduced for all accused – whether charge is capable of separation.

Evidence – strength of evidence – where complainant in assult case was intoxicated at the time of the offence - strength of the complainant’s evidence.

The appellant and two others were jointly charged with grievous harm contrary to section 234 of the Penal Code in that on 14.4.1990 at Othaya township jointly with others, did grievous harm to the complainant Lawrence Muchori Gicheru.

The complainant, the appellant, his co-accused and other people were drinking, and between 10 – 11 pm a scuffle ensued whereby complainant was pierced in the eye with an umbrella. According to complainant, it was appellant who had the umbrella and therefore pierced him with it. Accused was convicted, while the co-accused’s charge was reduced to assault.

The defence contented that the complainant was too drunk and therefore he was unable to identify who pierced him in the eye.

Held:

1. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.

2. If the learned trial magistrate found that the facts of the major charge constituted a minor offence he ought to have reduced the graver charge for all the accused and not for some because if the charge is subtracted it follows that it is eliminated and obliterated altogether.

3. The violence alleged in the charge was the same as that alleged and proved against all accused persons and was not capable of separation.

All of them could either be found guilty of graver charge or the minor offence and not some to be indicated separately and selectively.

4. There was ample proof that the complainant had consumed a large quantity of beer and was hopelessly drunk at the time of the attack upon himself. He was not sure of the number of the persons who assaulted him and neither could he recall the weapons used to injure him.

Appeal allowed

Cases

Ali Mohammed Hassani Mapanda v Republic [1963] EA 294

Statutes

No statutes referred.

David W Ngeretha v Republic

High Court, at Nyeri January 22, 1992

Tunoi J

Criminal Appeals Nos 177 & 178 of 1991(consolidated)

(From original Criminal Case No 884 of 1989 of Principal Magistrate’s  Court at Nyeri (Njuguna Kimani R M ))

Criminal Law – demanding money with menaces contrary to section 302 of the Penal Code – where one is accosted and told to give out the money or be charged – whether this amounts to demanding money with menaces.

The two appellants, police constables at Nyeri, were after trial convicted of demanding money with menaces contrary to section 302 of the Penal Code, in that on 26/1/1989 in Majengo village in Nyeri district, they demanded money with menaces, namely Shs 100 from one Nicholas Kibui so that he might not be arrested and charged with possession of changaa.

The complainant alleged that they told him unless he gave them the money, they would arrest him. He told them he had no money. They advised him to go home, look for it and meet them later. It was contended on behalf of prosecution that a trap was set up and Shs 100 was recovered on the trouser of the appellant. They were convicted and hence the appeal.

Held:

1. There was intent to steal the money once there was intent to take the money without the consent of the complainant, the person to whom the demand was made.

2. By demanding Shs 100 the only intention by the appellants was to steal the money.

3. The appellants manhandled the complainant and handcuffed him, all these using force and some violence so as to make him accede unwillingly to the demand.

Appeal rejected.

Cases

Oketch v Republic [1968] EA 508

Statutes

Penal Code (cap 63) section 302

Agency – principal and agent - liability of principal for the act of his agent - when principal is bound by a fraudulent act of his agent - issue of a forged certificate of insurance - whether the person isuing was an agent for the insurer or the insured - whether insurer bound under the insurance policy. Insurance law - insurance agent - when insurer may be bound by the fraudulent act of an agent - issue of a forged certficiate of insurance - whether insurer bound to honour the insurance policy.

Kamanja v Republic

High Court, at Nyeri October 12, 1990

Tunoi J

Criminal Appeal No 5 of 1990

(Appeal from a Judgment of the Senior Resident Magistrate’s Court at

Nyeri, FN Muche Ag SRM Esq, in Criminal Case No 817 of 1989)

Evidence – Witness evidence – recognition and identification – factors aiding recognition identification.

The appellant was convicted of the offence of robbery on the strength of recognition and identification evidence. The appellant on appeal argued that he was not properly recognised.

The appellant was well known to the complainant who had given him a lift and employed him as a casual labourer. The appellant and complainant had also conversed before the incident and were drinking mates. During the incident the appellant spoke and was recognised by voice. The witnesses further recognised the appellant by moonlight and torch light and promptly identified the appellant as the attacker to the police.

Held:

On the evidence the court came to the right conclusion and was justified in convicting the appellant and rejecting his evidence. The witnesses had more than enough opportunity in seeing the appellant and recognising his voice.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1)