Civil Procedure - application for summary judgment and striking out of defendant's counterclaim - suit disclosing triable issue - application dismissed.

Mwangi & another v Republic

Court of Appeal, at Nyeri May 7, 2004

Omolo, Tunoi JJ A & Ringera Ag JA

Criminal Appeal No 72 of 1997

(Appeal from convictions and sentences of the High Court of Kenya at Nyeri (Mr Justice Osiemo) dated 23rd September, 1997 in High Court Criminal Case No 21 of 1996)

Evidence – confession - retracted and repudiated confessions – evidential value of a retracted or repudiated statement of a co-accused.

Evidence – circumstantial evidence – evidential value of circumstantial evidence – principle applicable when relying on circumstantial evidence – proper way to direct assessors in a case depending on circumstantial evidence.

Sentencing – death sentence – whether imposition of death penalty on a minor is proper.

Criminal Practice and Procedure - abatement of appeal – abatement upon the death of the appellant - Court of Appeal Rules rule 68(1)(a).

The two appellants had been convicted by the High Court (Osiemo J) on four counts of murder contrary to sections 203 and 204 of the Penal Code (cap 63) and sentenced to death. The 1st appellant was aged below 18 years at the time when he was said to have committed the offence. He died in prison before his appeal could be heard. The prosecution’s case against the 2nd appellant was based entirely on circumstantial evidence. The deceased appellant had implicated the 2nd appellant in certain statements which had been repudiated and retracted at trial and were only admitted after trials within the trial.

Held:

1. A retracted and repudiated confession of a co-accused is the weakest kind of evidence against a third party and such evidence can only lend support to other independent available evidence.

2. In a case depending on circumstantial evidence, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypotheses except the hypothesis that the accessed is guilty of the charge.

3. It is the duty of the judge to the assessors to specify which circumstances he was relying on and what inferences he was drawing from those circumstances. The judge has a duty to set out each individual circumstance and analyse it.

4. It is unfair to the assessors to be given general principles applicable to circumstantial evidence without explaining to them the individual circumstance and asking them what inference they thought could be drawn from the circumstance.

5. The first appellant died before the appeal could be heard, therefore the appeal abated under rule 68(1) (a) of the Court of Appeal Rules.

6. The sentence of death cannot be pronounced or recorded against any person convicted of any offence if at the time the offence was committed the person was under eighteen years. The sentence imposed upon the first appellant was therefore contrary to law.

Appeal allowed.

Cases

1. Okeno v Republic [1972] EA 32

2. Rex v Kipkering Arap Koske & another (1949) 16 EACA 135

Statutes

1. Penal Code (cap 63) sections 25(2), 203, 204

2. Court of Appeal Rules (cap 9 Sub Leg) rule 68(1) (a)

3. Evidence Act (cap 80) section 32(1)

Republic v Commissioner of Co-operative

Development & another ex parte Gusii Farmers

Rural Sacco Ltd

High Cour, at Kisii May 6, 2004

Bauni J

Miscellaneous Application No 32 of 2004

Judicial review – leave granted to operate as stay- interested parties seeking to be heard on proceedings to set aside stay before substantive motion was filed – whether this is allowed procedurally –whether setting aside proceedings can be heard ex parte.

The Commissioner of Co-operatives instituted an inquiry into the affairs of Gusii Farmers Rural Sacco Ltd. After receiving the report, he on 25^th March 2004 wrote to the Provincial Co-operative Officer, Nyanza province, asking him to call a meeting of all members to deliberate the report.

On 1st April 2004, the applicant society applied for leave to institute proceedings for judicial review in the nature of certiorari to quash the 1^st respondent’s decision vide letter on 25th March, 2004. The Court granted the leave and further ordered the leave to operate as a stay. On 15th April 2004, Clement Moreka, Peter Nyangena and Dickson Okindo filed a notice of motion seeking to be allowed to participate in the proceedings as interested parties and further seeking the setting aside of the order of stay granted when leave was given. These orders were granted. The applicant thereafter sought a review of the orders granted to the three.

Held:

1. Interested third parties to a judicial review proceedings can be heard on the issue of stay if it is granted simultaneously with leave to institute judicial review even though the substantive motion has not been filed.

2. Under order 53 rule 1 (2) of the Civil Procedure Rules, an application for leave shall be made ex parte to a judge in chambers.

3. Applications under order 1 rule 10 and order 53 rules 4 and 6 of the Civil Procedure Rules and section 3A of the Civil Procedure Act should ordinarily be served and heard inter partes unless the matter is extremely urgent when it can proceed ex parte.

4. It is a fundamental principle of justice that before an order or a decision is made parties should be heard.

5. Under rule 25 (4) of the Co-operative Societies Rules. It is the Registrar of Co-operative Societies and not the Commissioner of Co-opratives who can call a meeting of a society.

6. Powers vested in the High Court by the provisions of sections 8 & 9 of the Law Reform Act to issue orders under order 53 of the Civil Procedure Rules are not subject to other Act of Parliament.

Cases

Republic v Communications Commission of Kenya [2001] 1 EA 199

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order 1 rule 10; order LIII rules 1(2) (4)

2. Civil Procedure Act (cap 21) section 3A

3. Law Reform Act (cap 26) sections 8, 9

4. Cooperative Societies Act (cap 490)

Advocates

Mr Oguttu for the Applicant

Mr Orina for the 1st & 2nd Respondents

Mr Kerosi for the Interested Party