Odero v Republic

High Court, at Nairobi February 14, 1984

Brar, Mbaya JJ

Criminal Appeal No 357 of 1983

(Appeal from the Senior Resident Magistrate’s Court, at Machakos)

Sentencing - consecutive and concurrent sentences - when sentences should run concurrently - three counts of one offence charged – counts committed in course of one transaction - consecutive sentences imposed on all counts - whether consecutive sentences were proper – Criminal Procedure Code (cap 75) section 135(1).

The appellant, a newspaper vendor, was charged with three counts of publishing alarming publications contrary to the Penal Code (cap 63) section 66(1) and in the alternative, with creating a disturbance likely to cause a breach of the peace. The particulars of the first charge stated that the appellant had on three occasions “…published a false rumour that the Government of His Excellency President Daniel Arap Moi will be overthrown despite the failure of the attempted coup de tat of 1st August, 1982…” The first prosecution witness testified that the appellant, from whom he had gone to buy a newspaper on 7th December, 1982, had called him aside and told him that, the 12th of December 1982 will be worse than 1st August 1982, and that on the following day, the witness enquired from the appellant whether that information was true, and he replied in the affirmative. This witness allegedly made a report to the police on whose advice he on 19th December, 1982 met with the appellant in the company of the second prosecution witness as an independent person to certify the appellant’s utterances. It was said that the appellant then told the two witnesses that the plan to overthrow the government was still on. After trial, the appellant was convicted on all three counts of the substantive charge and was sentenced to three years’ imprisonment on each count, with the trial magistrate ordering that the sentences were to run consecutively. He appealed to the High Court against his conviction and sentences.

Held:

1. If a series of acts are so connected together by proximity of time, community of criminal intent, continuity of action and purpose or by the relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction.

2. The series of acts in this case were the rumour-mongering which the appellant indulged in within the proximity of eleven days. There was continuity of action for what the appellant did was merely to repeat publication of the rumour that he had spread on the first occasion.

3. In cases where a person has been charged with and convicted of two or more counts involving the same transaction, the practice is to direct that the sentences should run concurrently.

4. The three counts for which the appellant was convicted were a series of offences founded on the same facts and committed in the course of the same transaction which was why the counts were joined in one charge as envisaged by the Criminal Procedure Code (cap 75) section 135(1). The trial magistrate therefore erred in ordering the sentences to run consecutively.

Appeal against conviction dismissed, appeal against sentence allowed.

Cases

1. Okeno v Republic [1972] EA 32

2. Pandya v R [1957] EA 336

3. R v Fulabhai Jethabhai & Another (1946) 13 EACA 179

4. Rex v Saidi Nsubuga s/o Juma and another (1941) 8 EACA 81

5. Akber Rashid Nathani v R [1965] EA 777

Statutes

1. Penal Code (cap 63) sections 66(1), 95(1)(b)

2. Criminal Procedure Code (cap 75) section 135(1)

Advocates

Mr JM Bwonwonga for Respondent

Criminal law - theft by servant - contrary to section 281 of the Penal Code cap 63 - evidence of accomplice who is not charged - whether magistrate was entitled to convict.

Criminal law - theft of a handcart and in alternative handling stolen handcart whether conviction of all accused on alternative charge of handling proper.

Githunguri v Pan African Insurance Company Limited

High Court, at Nairobi

January 9, 1984

Brar J

Civil Case No 791 of 1982

Contract – offer and acceptance – waiver and estoppel - acceptance of contract on terms stated in offer – offeree purporting to rescind contract on a term not included in the offer – whether offeree may rely on negotiations preceding the offer – whether offeree estopped from raising in its defence a ground not relied on when repudiating contract – whether such ground deemed to have been waived.

Estoppel – contract – party repudiating contract on ground of lapse of time – whether such party estopped from raising in its defence a ground not relied on when repudiating contract.

Civil Practice and Procedure – judgment on admission – such judgment to be given where facts are clearly established and sufficient.

By its letter dated October 9, 1980 which was in response to the plaintiff’s application for a loan, the defendant company agreed that it would grant him a loan of Shs 10,000,000 on terms and conditions which it outlined in the letter.

The plaintiff accepted the offer of the loan and sent a cheque of Shs 100,000 to the defendant as the commitment fee required under the terms of the offer, which the defendant accepted.

After two months, the defendant returned the commitment fee and advised the plaintiff that though he had accepted the offer, the offer had lapsed owing to his failure to pay the commitment fee in “the stipulated time”. The terms of the offer, however, did not stipulate a time within which the commitment fee was to be paid.

The plaintiff sued the defendants and prayed for interlocutory judgment in addition to or in lieu of specific performance of the contract.

The defendant averred that the whole contract was not contained in the letter of offer as the letter of offer had been preceded by discussions and correspondence between the parties. It was further averred that on the date of the institution of the suit, the plaintiff was not in a position to provide the security without which the loan could not have been granted.

The plaintiff’s advocate argued that the defendant could not rely on the latter defence first because it was not the ground on which the contract was rescinded and secondly, the failure by the defendant to raise that ground at the time of rescinding the contract meant that the defence was waived and the defendant was estopped from raising it in the defence.

Held:

1. The defendant was not entitled to bring in the evidence of discussions and correspondence which allegedly preceded its written offer.
2. When the plaintiff accepted the offer within the time stipulated for his acceptance and paid the commitment fee, he had complied with the two conditions which he was required to comply with before the offer and acceptance could bind the parties under a valid and enforceable contract.
3. The contract between the parties became binding and enforceable on such terms and conditions as were stated in the letter of offer. There was no subsequent variation or addition to the contract by mutual consent of the parties.
4. When the defendant rescinded the contract on the sole ground of the alleged non-payment of the commitment fee, it was deemed to have waived any of the other terms or conditions that were available to it under the contract. The defendant was precluded from raising any defence based on a ground other than the one on which it terminated the contract.
5. Admissions of fact must be clear and sufficient before they will entitle a plaintiff to judgment on admission.
6. The material facts in this case had been adequately established and the law had been fully argued without the benefit of a trial. There was no point in going formally to trial.

Application allowed, interlocutory judgment entered for the plaintiff.

Cases

1. Damador Jinhabai & Co Ltd & another v Eustace Sisal Estates Ltd [1967] EA 153
2. South British Insurance Co Ltd v Samiullah [1967] EA 659
3. Panchaud Freres SA v ET General Grain Co [1970] 1 Lloyd’s Rep 53
4. Lickiss v Milestone Motor Policies at Lloyd’s [1966] 2 All ER 972
5. Nidaf Establishment v Maize and Produce Board High Court Civil Case No 480 of 1982 (unreported)
6. Maize and Produce Board v Nidaf Establishment Civil Appeal No 63 of 1981 (unreported)
7. Cassam v Sachania [1982] KLR 191
8. Ellis v Allen [1914] 1 Ch D 904
9. Technistudy Ltd v Kelland [1976] 3 All ER 632
10. Rankine v Garton [1979] 2 All ER 1185

11. Tiverton Estates Ltd v Wearwell Ltd [1974] 1 All ER 209

Texts

Burke, J, Allsop, P (Eds) (1955) Chitty on Contracts London: Sweet & Maxwell 21st Edn Vol II pp 372, 373

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 9; XII rule 6
2. Evidence Act (cap 80) section 29(6)
3. Land Registration Act 1925 [UK] sections 56(3),82(1)
4. Law of Property Act 1925 [UK] section 40(1)
5. Land Charges Act of 1925 [UK] section 10(8)
6. Rules of the Supreme Court [UK] order 86

Advocates

Mr Lakha for the Plaintiff.

Mr Muite for the Defendant.

Criminal Practice and Procedure - evidence - corroboration -identification of accused by complainant - complainant the only witness - no corroboration of complainant’s evidence - no evidence given on second count - accused convicted on both counts - whe