Criminal law - burglary and theft from dwelling house - circumstantial evidence - whether appellant was convicted on proper consideration of evidence.

Criminal law - housebreaking and stealing - defence of alibi - onus of dilodging defence.

Oliver Munyaka Kabulu v Republic (No 2)

Court of Appeal, at Nairobi

July 30, 1984

Kneller, Hancox JJA & Chesoni Ag JA

Criminal Application NAI No 4 of 1984 (No 2)

(Appeal from the High Court at Kakamega, Gicheru J)

Court martial - appeal – 2nd appeal to Court of Appeal - whether proper.

Appeal - extension of time to file - discretion of the court in extending.

After the appellant’s appeal to the High Court against his conviction and sentence by a Court Martial was dismissed, he applied to the Court of Appeal for an extension of the time in which to institute a second appeal. Meanwhile, the Court of Appeal ruled in Onyango v Republic ( [1983] KLR 252) that in the absence of a statutory provision conferring a right to a second appeal from a Court Martial to the Court of Appeal, there existed no such right. The respondent’s advocate objected that as the Court of Appeal had no jurisdiction to hear the intended appeal, the applicant’s application should be dismissed.

Held:

1. On the authority of Munene v Republic (No 2) [1978] KLR 105 and National Telephone Co Ltd (in liquidation) v Postmaster-General [1913] AC 546, which cases were not cited to the Court in Onyango v Republic, there existed the argument that the right to a second appeal from a court martial existed where it wasn’t forbidden by a statute.
2. It was therefore not settled by the legislature or by a decision of a full bench of the Court of Appeal whether a right of second appeal existed. It would be proper to refer this application to a full bench of the court.

Application adjourned for decision by full bench.

Cases

1. Onyango v Republic Criminal Appeal No 69 of 1982 [1983] KLR 252
2. Munene v Republic (No.2) [1978] KLR 105
3. National Telephone Co Ltd (in Liquidation) v His Majesty’s Postmaster- General [1913] AC 546

Statutes

1. Court of Appeals Rules (cap 9 Sub Leg) rules 4, 40(b)
2. Armed Forces Act (cap 199) section 85(2)

 Advocates

1. Mr Mukolongolo for the Applicant
2. Mr Mbai for the Respondent.

 Editorial Note This application was further considered in Kabulu v R (No 3), infra, p 223.

Criminal law - robbery - accused alleging fight and not robbery in defence - failure by magistrate to consider defence - whether such failure occassioned miscarriage of justice.

Charles Kariuki v Republic

High Court, at Nairobi

July 27, 1984

Abdullah & Aluoch JJ

Criminal Appeal No 1785 of 1983

Criminal Practice and Procedure – witnesses - when presiding magistrate is charged - rights of an accused person – right to resummon and rehear witness where there is change in presiding magistrate – duty upon succeeding magistrate to inform accused of that right – failure to inform accused of right – effect of – trial a nullity – Criminal Procedure Code (cap 75) section 200(3).

Evidence – witness – right of accused person to recall and rehear – where there is change in presiding magistrate – duty upon succeeding magistrate to inform accused of right - failure to inform accused of right – effect of – trial a nullity – Criminal Procedure Code (cap 75) section 200(3).

The appellant was charged in the magistrate’s courts with four offences under the Penal Code (cap 63) relating to cheque fraud, theft and forgery involving some Shs. 1,200. After the presiding magistrate had heard all the evidence for the prosecution and the statutory statement of the appellant, he adjourned the hearing in order to enable the appellant to call a defence witness. The magistrate was in the meantime appointed to a different office in the civil service. When the trial resumed, the succeeding magistrate ascertained that the appellant had no objection to him continuing with the hearing, heard the appellant’s witness and proceeded to convict and sentence him the counts of theft, forgery and uttering a false cheque. The appellant appealed.

Held:

1. Under section 200(3) of the Criminal Procedure Code (cap 75), an accused person is entitled to demand that any witness be resummoned and reheard and a duty is imposed on a succeeding magistrate to inform the accused person of that right.
2. The record of this case showed that the appellant was not informed of his right to demand that any witness be resummoned or reheard.
3. The assumption of jurisdiction by the succeeding magistrate without informing the appellant of his right was wrong and the trial by the succeeding magistrate was a nullity.
4. Though the proper course to take where a trial has been declared a nullity would be to order a new trial, such order would not be made in this case as the appellant had already served a sentence of nine months.

Appeal allowed.

Cases

1. Raphael v Republic [1969] EA 544

Statutes

1. Penal Code (cap 63) sections 275, 313, 349, 353
2. Criminal Procedure Code (cap 75) section 200
3. Criminal Procedure Code (cap 20) section 196 [Tanzania]

Advocates

1. Miss LG Mbarire, State Counsel, for Respondent