Wafula & 3 others v Republic

High Court, at Nairobi June 12, 1986

Sachdeva & Samnakay JJ

Criminal Appeals Nos 1290, 1291, 1292 & 1293 of 1985 (Consolidated)

(Appeals from the Senior Resident Magistrate’s Court at Eldoret, Osiemo, Esq)

Evidence– identification – identification evidence of single witness – how court should treat such evidence – identification of common articles – identification of stolen watch – whether such identification proper where no special identifying mark is shown.

Criminal Practice and Procedure – investigation and prosecution of offences – failure of police to properly conduct investigation–– failure to conduct identification parades – failure leading to insufficiency of evidence and improper prosecution.

Charge – preferment of – where a killing is committed in the course a robbery – whether proper practice to prefer charge of robbery with violence in such case.

The appellants were jointly charged with one count of each of the offences of robbery and robbery with violence contrary to sections 296(1) and 296(2) of the Penal Code (cap 63) respectively.

The evidence was that a Mr. Singh was robbed of his vehicle at gun point by five persons and taken hostage to a plantation from which the robbers later emerged to attack a traveling bus, killing the conductor and robbing from the passengers before getting away.

On the following day, the four appellants were arrested at a bar and in possession of some items which were identified as having been stolen from the bus and one of them later led police to recover a gun which the prosecution alleged was the gun with which the bus conductor had been shot. There was a contradiction in the evidence of two witnesses on whether the recovered gun had a serial number. It was alleged that Singh identified his stolen watch on one of the appellants who had attempted to escape arrest and Singh stated in court that he identified the four appellants as members of the gang that had robbed him.

The appellants denied the charges or having been in possession any of the stolen items but the trial court accepted the prosecution evidence, convicted them and sentenced them to death. They appealed to the High Court.

Held:

1. As the items found with the appellants at the bar could not be linked to any one of them the circumstances of how the items were recovered not being spelt out and there being no evidence as to the actions of the appellants in that bar, it was not established how they were in joint possession of those items.

2. Identification at night-time by a single witness is to be treated with great caution and in the instant case, there was absolutely no basis for concluding that the circumstances were conducive to a positive identification of the robbers by Singh.

3. Though the recovery of the gun was a strong incriminating factor against the accused person who led the police to it, there existed a possibility of error as to the identity of the gun.

4. Not much weight could be attached to the evidence that one of the appellants attempted to escape during his arrest.

5. A watch being a common article, there was need for clear and satisfactory evidence such as a special identifying mark by which it could be positively identified by Singh. No such clear evidence was given.

6. There had been a failure on the part of the police to investigate the case properly, particularly the failure to conduct identification parades and the case was not properly presented by the prosecution.

7. (Obiter) The court deprecates the practice of bringing a charge of capital robbery where a murder has been committed in the course of robbery. The accused are unjustifiably denied a trial by the High Court with assessors and deprived of the benefit of committal proceedings and legal aid.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1), (2)

Advocates

Appellants unrepresented

Mr N Harwood, Senior State Counsel, for the Respondent

Criminal la w - preparation to commit a felony contrary to section 308(1) Penal Code cap 63 - charge disclosing felony covered in section 308(2) - whether court could alter sentence in view of the discrepancy.

Yakub v Yakub

High Court, at Nairobi August 24, 1983

Sachdeva J

Civil Case No 2641 of 1982

Family - family agreements - agreement executed in trust - validity of - conditions for validity - whether a minor can be bound without court’s in such agreement approval-failure to obtain court’s approval - effect of - provisions of the Trustee Act (cap 167) sections 56 to 62 - approval of agreements by court - factors taken into consideration - the role and duty of the court.

Children - agreements - agreement affecting children - sanction of court of - provisions of the Guardianship of Infants Act (cap 144) - duties of the guardian - duties of the court.

The deceased father of the two defendants was a holder of life and accident insurance policies worth Kshs 2,000,000. By a deed of family arrangement entered into between the parties and also including one K Y, the younger and minor daughter of the deceased, the sum of Kshs 2,000,000 was agreed to be apportioned as Kshs 1,000,000 to the plaintiff, who was the step-mother of the first defendant and mother of the second defendant, Kshs 416,666.66 to each of the defendants and, finally, Kshs 166,666.68 to K to be held in trust for her by the plaintiff until she attained the age of eighteen years. The deed showed that K had executed it herself and she was described therein as “a minor acting on her own behalf in so far as may be possible and in any event by her next friend and guardian the widow aforesaid” (the plaintiff). Subsequent to the execution of the deed, each of the defendants refused to pay Kshs 250,000 to the plaintiff as stipulated in the deed and the plaintiff instituted an action for the recovery of the money from the defendants.

It was pleaded in defence, among other things, that the agreement was invalid as the parties to it who were required to be sui juris were not, that all the parties to it or affected by it did not adopt it as required by law, that it had not been validly signed on behalf of the infant, and that no sanction of the court had been sought or obtained in respect of the arrangements affecting the infant. It was agreed that the issue of whether the agreement was invalid be determined by the court as a preliminary issue.

Held:

1. A transaction in the nature of a family arrangement cannot be entered into without the sanction of the court where one of the parties is an infant.

2. Under sections 3 and 5 of the Guardianship of Infants Act (cap 144), on the death of the father, the mother becomes the guardian of an infant, subject to the provisions of the Act, and such guardian has the same powers over the estate of an infant as a guardian appointed by will or otherwise under the law for the time being in force in England. The deed in this case dealt with the inheritance of a part of the estate of the infant’s father and the mother was clearly acting as her statutory guardian.

3. On general principles, where a parent enters into an arrangement on behalf of an infant, he must be deemed to do so in a fiduciary capacity.

4. It was wrong for the plaintiff to contend that the minor was not complaining that the deed was to her detriment when she could not complain directly to the court as she was not sui generis and could only come to the court through an adult acting on her behalf.

5. It is possible to enter into family arrangements even in the absence of one or more members but only on the assumption that the absent members would rectify the same and that if they failed to do so, such arrangements would become invalid.

6. The deed was unenforceable against any of the parties to it due to the failure of obtaining the sanction of the court in respect of the infant who was under no position to rectify it personally.

Plaintiff’s claim dismissed.

Editorial Note:

Although the Guardianship of Infants Act (cap 144) was repealed along with the Children and Young Persons Act (cap 141) and the Adoption Act (cap 143) by the Children Act, 2001, an Act consolidating the law relating to parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children which commenced on March 1, 2002 by virtue of Legal Notice No 33 of 2002, it may well be that the principles applied in this case are still applicable. This, however, will be settled by the courts in their decisions applying and interpreting the provisions of the Children Act, 2001 subsequent to the commencement date.

Cases

1. Bolitho vs Hillyar (1865) 55 English Reports at 603

2. Peto v Peto 16 Sim, 990

Texts

1. Millet, P.C., et al, (Eds) (1964-83) The Encyclopaedia of Forms and Precedents, 4th Edn Vol IX para 308

2. Hailsham, Lord, et al, (Eds), (1975) Halsbury’s Laws of England, London: Butterworth, 4th Edn, Vol XVIII

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XIV rule 2

2. Guardianship of Infants Act (cap 144) sections 3, 5, 17 (now repealed)

3. Trustee Act (cap 167) sections 56 to 62

Advocates

Malik for Plaintiff

Nowrojee & I Kapila for Defendants

Tolley v Republic

High Court, at Nairobi July 27, 1983

Sachdeva J

Criminal Appeal No 815 of 1983

Criminal law - creating a disturbance in a manner likely to cause a breach of peace - act of threatening person with pistol - pistol later discovered to be toy - whether act amounted to offence charged.

Appeal - grounds of appeal - whether party can rely on grounds not incorporated in petition of appeal - Criminal Procedure Code (cap 75) section 350(2).

Sentencing - severity of sentence - offences of wilfully and unlawfully damaging property and creating a disturbance in manner likely to cause breach of peace - appellant threatening public officers on duty with toy pistol-concurrent sentences of six months’ imprisonment imposed - appellant a first offender - appellant angry and acting out of provocation - whether sentences manifestly excessive - whether fine would be adequate punishment.

The appellant was convicted on two counts of wilfully and unlawfully damaging property and creating a disturbance in a manner likely to cause a breach of the peace. She was sentenced to two concurrent sentences of six months’ imprisonment. The evidence of the prosecution, which had been accepted as true by the trial magistrate, was that the appellant, upon a visitation by two clerical officers from the Ministry of Water Development who bore written instructions to disconnect her water supply, had told them that they could not carry out the instructions as she had not had any water for some time. She became angry and after grabbing the papers from one of the officers, she tore them and damaged a file. She then fetched what was later discovered to be a toy pistol and threatened to shoot one of the officers.

The trial magistrate had after recording all the evidence, rejected the appellant’s defence that she had threatened the officers because she thought they were thugs and that she had torn the papers by accident. Upon appeal, appellant’s counsel attempted to challenge the trial magistrate’s findings on grounds not incorporated in the petition of appeal.

Held:

1. An appellant is not permitted to rely on any grounds of appeal other than those set forth in the petition of appeal (Criminal Procedure Code (cap 75) section 350(2)).

2. There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully prevented by another from doing it. It is a breach of the peace because such person is entitled to peacefully go on with his work (R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458). In this instance, the appellant’s act of wielding a “pistol” and threatening officers on lawful duty was likely to cause a breach of peace.

3. As the appellant was a first offender and had been provoked into anger, the sentence of imprisonment was manifestly excessive and a fine would have been adequate punishment.

Appeal against conviction dismissed. Appeal against sentence allowed.

Cases

1. Mark Mwithaga v Republic Cr Appeal No 185 of 1975 (unreported)

2. R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458

Statutes

Criminal Procedure Code (cap 75) section 350(2)

Advocates

L Sampson for Appellant

B Chunga for Respondent

Kimani v Nathan Kahara

High Court, at Nairobi

July 12, 1983

Simpson & Sachdeva JJa

High Court Revision Case of 1983

(Appeal from the Chief Magistrate’s Court at Nairobi, A Rauf Esq, in PrivateProsecution Case No 7 of 1982)

Private prosecution – institution of – right to conduct a private prosecution – power to allow conduct of private prosecution – power of the magistrate– – interpretation of “trying the case” – as set out in section 8(1) of the Criminal Procedure Code (cap 75) – when magistrate can exercise this power – principles applicable exercising discretion whether or not to allow private prosecution – powers of the Attorney general over private prosecution – role of Attorney General in private prosecution–– exercise of those powers – whether consent of the Attorney General is required for private prosecution – interpretation of section 88(1) and sections 89 of the Criminal Procedure Code (cap 75) section 26(1) and (2) of the Constitution.

Judicial discretion – principles applicable – in the exercise of granting permission for private prosecution.

The appellants had applied for permission to prosecute the respondent under section 88 of the Criminal Procedure Code (cap 75). The magistrate granted the permission. The respondent was neither present nor represented when permission was granted.

The appellant later appeared before another magistrate, pleaded not guilty and subsequently the magistrate gave the ruling dismissing all charges against the accused, and discharged him. The appellants then applied to the High Court for a revision of the ruling of the magistrate since the Act alone may appeal from an order dismissing a charge.

Held:

1. A magistrate “trying” a case has the power to grant or refuse the permission to a private prosecution to conduct a prosecution, as set out in section 88(1) of the Criminal Procedure Code (cap 75).

2. An application for permission to conduct a private prosecution can only be made once the trial has started. The trial begins when the accused person is brought before the magistrate for the purpose of pleading to a formal duly signed charge. At that stage the magistrate can properly be described as “trying the case” within the meaning and context of section 88 of the Criminal procedure Code (cap 75).

3. In deciding whether or not to grant permission to conduct a private prosecution the magistrate trying the case has a discretion which should be exercised judicially.

4. The principles to be applied in deciding whether or not permission to conduct a private prosecutions are as follows:

a) it ought to be ascertained whether or not the Attorney General or police have been informed. The court may adjourn the matter to enable a report to be made. However in simple cases such as trespass and assault this may not be necessary.
b) Where the Attorney general has or had previously declined to institute the proceedings, the magistrate should grant the permission to conduct a private prosecution in default of the Attorney General doing so.
c) The locus standi of the applicant should be considered.
d) The fact of whether or not the applicant has suffered any personal injury, damage or whether it is being done for political consideration, should be taken into account.

5. Even though it be true every citizen has sufficient interest in seeing the law is enforced it does not follow that every citizen has a sufficient interest in conducting the prosecution of another citizen for an offence which has caused him no damage or injury.

6. A right by any other person to institute or undertake criminal proceedings can be inferred from sections 26(1) and (2) of the Constitution, which provide that the Attorney General can take over and continue criminal proceedings (other than those a the court martial) instituted or undertaken by any other person or authority and he also has the power to discontinue any such proceedings at any stage before judgment.

7. Before the Attorney general can control a private prosecution, he must first take it over. Once he has taken it over, he may either continue to or discontinue it by entering a nolle prosequi as provided by section 87 of the Criminal Procedure Code.

8. Section 89 of the Criminal Procedure Code expressly confers the right to institute a criminal proceedings on any person my means of a complaint to a magistrate and section 88 confers the right to any person to conduct the prosecution subject to the permission of “any magistrate trying the case”.

9. There is no provision stating or inferring that the consent of the Attorney general is required before a private prosecution can be instituted or conducted.

10. (Obiter) The main object of the Criminal (Amendment) Act, 1982 was to replace preliminary inquiries with shorter more expeditious committal proceedings. The words “inquiry into” referred to preliminary inquiries and the removal of those words do not otherwise affect the meaning of the section.

11. (Obiter) The role of the Attorney General when he appears in person or by state counsel as amicus curiae is to advise and assist the lower court on a matter of public importance when he asked the court to dismiss the charge against the accused.

12. (Obiter) The right of private prosecution in Kenya is essential to counteract attempts by wealthy and influential people to stifle prosecutions when offences by them are reported.

Cases

1. Gouriet v Union of Office Workers [1978] AC 435; [1977] 3 All ER 70; [1977] 3 WLR 300

2. Riddlesbarger v Robson [1959] EA 841

Texts

1. Simmonds, V. et al.(Ed)(1959) Halsbury’s Laws of England London:Butterworths 3rd Edn vol X p 337 para 626

2. Denning, A. (1979) The Discipline of Law London:Butterworths & Co p 122

Statutes

1. Penal Code (cap 63) sections 317, 394

2. Criminal Procedure Code (cap 75) sections 87, 88(1), 89, 348A

3. Criminal Procedure (Amendment) Act 1982 (Act No 13 of 1982) 4. Constitution of Kenya section 26

Advocates

 Mr. Muite and  Mr. Mohammed for the Applicants

Messrs Georgiadis & Mwaura for the Respondent

 Mr. Chunga for the Attorney General as Amicus Curiae

Kirira v Republic

High Court, at Nairobi May 31, 1983

Sachdeva J

Criminal Appeal No 294 of 1983

Criminal Practice and Procedure - charge - substitution of charge - prosecution’s version of the facts not supporting charge - court’s finding not supporting charge - facts disclosing accused only accessory after the fact to offence charged - whether court may substitute charge - charge of accessory after the fact to offence of theft of goods in transit.

Pleas - plea taking - equivocal pleas - plea of guilty - when such plea equivocal or unequivocal.

Sentencing - punishment - corporal punishment - when administered - whether proper to administer punishment before disposal of an appeal against it.

Criminal law - stealing goods in transit - contrary to Penal Code (cap 63) section 279(c) - accused unaware of theft at the time it was committed - accused aware of theft after entering vehicle conveying the stolen money - whether offence proved against accused.

Criminal law - principal and secondary offenders - charge of stealing goods in transit contrary to Penal Code (cap 63) section 279(c) – accused unaware of theft at the time it was committed - accused aware of theft after entering vehicle conveying the stolen money - whether accused a principal offender or accessory after the fact.

The appellant was convicted on his own plea to a charge of stealing goods in transit contrary to section 279(c) of the Penal Code (cap 63) and sentenced to three years’ imprisonment with six strokes of corporal punishment. It was the prosecution’s own version of facts that the appellant did not know about the theft when it was committed but he had joined other persons in the vehicle carrying the money stolen. The appellant appealed to the High Court and by the time of the determination of the appeal, it turned out that the corporal punishment imposed on the appellant had been partly administered.

Held:

1. If the accused did not know of the theft with which he was charged until after it had been committed, he was not a principal offender, but an accessory-after-the-fact. The conviction for the offence of theft of goods in transit was therefore a nullity.

2. It was within the power of the appellate court to substitute a conviction for stealing goods on transit with a conviction for the offence of being an accessory-after-the-fact to stealing goods in transit, without declaring the appellant’s conviction a nullity and ordering a retrial. In this instance, owing to the peculiar circumstances of the case, the conviction is accordingly substituted.

3. The facts of the case must be clearly put to the accused before taking his plea or accepting a plea of guilty as unequivocal.

4. (Obiter) It is highly improper for corporal punishment to be inflicted before the appeal has been disposed of.

Cases

1. Republic v Abdallah Munyiri Ibrahim Chief Magistrates Criminal Cases Nos 364 and 366 of 1983 (unreported)

2. Abdallah Munyiri Ibrahim v Republic High Court Criminal Appeal No 388 of 1983 (unreported)

Statutes

Penal Code (cap 63) sections 279(c), 397

Advocates

Mr Njau for Appellant

JM Bwonwonga for Respondent

Company Law-winding up-application seeking orders to stop the private surveyor or any surveyor at all from sub-dividing or in any way dealing with the property of the company, stopping the respondents or any former officials and directors of the company from acting or purporting to act in a matter in which they have no jurisdiction, and ordering the liquidator to proceed with the winding–up of the company-manner in which the court deals with such applications