[RULING] Civil Procedure - application by advocate for leave to withdraw and cease to act for a defendant - apparent conflict of interest between an insurance company and its insured - advocate for the insurance company seeking leave to withdraw from representation.

Vyatu Limited & another v Public Trustee,

Nyanza Province

Court of Appeal, at Kisumu November 28, 2003

Githinji JA

Civil Application No NAI 218 of 2003 (KSM 30/2003)

(An application for extension of time to substitute a Legal Representative

of the deceased in an appeal from Judgment and Decree of the High Court

of Kenya at Kisumu, Wambilyanga J, dated 4th July, 2000 in

HCCA No 80 of 2000)

Civil Practice and Procedure - abatement - abatement of appeal – appeal filed - respondent dies before appeal heard - no application made within 12 months to make the legal representative a party - application made to revive the abated appeal - Rule 96 of the Court of Appeal Rules.

Civil Practice and Procedure - extension of time- abatement of appeal - application made to extend time for Application to make the legal representative a party - extension tantamount to amending Rule 96(2) of the Court of Appeal Rules.

Legal Representative - public trustee appointed interim administrator - no letters of administration or limited grant given to public trustee - whether public trustee as interim administrator can be enjoined as a legal representative.

The applicants, as defendants in the High Court, filed an appeal against the Judgment of the superior court in which they had been ordered to pay a sum of money as compensation for injuries sustained by the plaintiff.

Before the appeal could be heard, the plaintiff passed away and the respondent herein was appointed the interim administrator of the estate of the deceased with duty to collect the decretal amount and pay the costs to the advocate. No application was made within 12 months to make the interim administrator a party to the appeal.

The applicants then applied to the court seeking extension of time for filing an application to make the interim administrator a party to the appeal.

The interim administrator had not in fact been appointed as the legal representative of the deceased’s estate hence no letters of administration or limited grant were given to the public trustee.

Held:

1. In the case of suits, order XXIII rule 2 of the Civil Procedure Rules gives a plaintiff or his legal representative a right to apply for revival of an abated suit and also power to the court to revive an abated suit on terms as to costs as the Court may think fit.

2. There is no corresponding provision in the Court of Appeal Rules which authorizes any party to an appeal to make an application for revival of an abated appeal or corresponding power given to the Court of Appeal to order the revival of an abated appeal.

3. Extending time for filing an application for making a legal representative of the deceased a party would in effect be tantamount to amending or revising rule 96(2) of the Court of Appeal Rules.

4. The order of the High Court appointing the public trustee as interim administrator did not in fact appoint the public trustee as the legal representative of the deceased as his duties were limited by the order to receiving the decretal sum and paying the costs of the advocate.

Application dismissed with costs.

Cases

No cases referred to.

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 1(2), 4, 96, 96(2)

2. Civil Procedure Act (cap 21) sections 3A, 95

3. Civil Procedure Rules (cap 21 Sub Leg) order XXIII rule 2; order XLIX rule 5

4. Law of Succession Act (cap 160) Fifth Schedule para 10

Republic v Judicial Commission of Inquiry into

the Goldenberg Affair & another Ex parte

Wilfred Karuga Koinange & 3 others (No 2)

High Court, at Nairobi November 28, 2003

Aluoch & Kariuki JJ

Miscellaneous Civil Application No 359 of 2003

Content of court - jurisdiction of High Court - power of the High Court to punish for contempt of court – how the power is to be exercised – whether the power absolute – section 5(1) of the Judicature Act (cap 8) – section 60(1) of the Kenya Constitution.

Civil Practice and Procedure - ex parte applications – application for leave to file contempt of court.

Civil Practice and Procedure - proceedings – factors that courts will consider in deciding whether or not to allow a party to participate in an ex parte application.

The applicants sought leave to commence contempt of court proceedings against the 1st respondent. The issue before the court was whether the 1^st respondent should be accorded audience during the hearing of the ex parte application.

The applicants maintained that it was mandatory that the application be heard ex parte as the application was the same as that obtaining in judicial review for orders of mandamus, certiorari and prohibition. The respondents submitted that the court had inherent power to hear an ex parte application inter partes if no prejudice is caused to the other party.

Held:

1. Section 5(1) of the Judicature Act (cap 8) confers powers on the High Court of Kenya to punish for contempt of court as is for the time being possessed by the High Court of Justice of England.

2. The English rule that an application for leave to file contempt proceedings is modeled on the application for judicial review orders is applicable in Kenya by reason of section 5(1) of the Judicature Act (cap 8).

3. The requirement that in judicial review proceedings for mandamus, certiorari and prohibition, the application for leave is normally ex parte and the party to whom the orders are intended to be directed are normally not served or allowed participation cannot hold good in all cases.

4. The power conferred on the High Court by section 5(1) of the Judicature Act (cap 8) to punish for contempt is in addition to the unlimited power conferred by section 60(1) of the Constitution of Kenya.

5. The extent to which English Courts do not have discretion to allow a party to participate in ex parte applications, such rules would be in conflict with the Constitution and would have no application in Kenya.

6. In deciding whether to permit a party to participate in an ex parte application for leave, Kenyan Courts will be guided by consideration, and whether ends of justice will be better served by an inter partes hearing.

7. The courts will readily allow a party to participate in an ex parte application where that party intends to adduce relevant material without which the court would not have a complete picture of the matter before it.

8. As in this case, where leave is sought in an ongoing litigation, the court will readily allow a party to participate in an ex parte application if it is shown that no prejudice is caused and that such party intends to adduce material which will assist the court to fairly reach its decision.

9. Where a party has patiently and beyond peradventure been in flagrant breach of the court order, the dictates of justice demand that such party be shut out.

Cases

1. Rosafric Limited v The Minister of Finance H C Misc Civil Application No 1392 of 2001

2. Republic v Tony Gachoka and Another Criminal Application No 2 of 1999

3. The Judicial Commission of Inquiry into the Goldenburg Affair and 3 Others v Job Kilach [2003] KLR 249

Texts

Jacob, IH et al (Eds) (1991) Atkin’s Encyclopaedia of Court Forms in

Civil Proceedings London: Butterworths 2nd Edn Footnote “P” p 107

Statutes

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

2. Constitution of Kenya sections 60(1), 77(8)

3. Judicature Act (cap 8) sections 3(1), 5(1)

4. Supreme Court Rules [UK] order 52 rule 2

Advocates

Mr W Kilonzo for the Applicants

Mr Waweru Gatonye for the 1st Respondent

Mr Horace Okumu for the 2nd Respondent

Julius Mwita Range v Republic

Court of Appeal, at Kisumu November 28, 2003

Tunoi, O’Kubasu JJ A & Onyango-Otieno Ag JA

Criminal Appeal No 150 of 2003

(Appeal from a conviction and sentence of the High Court at

Kisii (Wambilyanga J) dated 27th July 2002)

Evidence – witness–– evidence of a wife where husband is charged with criminal offence – whether wife a competent witness – whether wife a compellable witness – wife called as a witness by the prosecution–– defence failing to apply to call her or take over her evidence – wife discharged by the court as not being competent to testify against her husband –– whether court’s decision proper.

Evidence – adducing of evidence – criminal trial – conviction to be based only on the evidence adduced in trial - court not to advance its own theory.

Criminal Law – provocation–– murder – accused stating that he murdered deceased because he found him walking with his wife – whether such a fact can amount to provocation – whether proper to reduce conviction for murder to one for manslaughter.

The appellant was convicted by the High Court for the murder of one Musa Chacha and sentenced to death.

Apart from the appellant’s admission made in a cautionary statement to the police and also to one witness that he killed the deceased because he had found him with his wife, there was no other evidence as to what had happened at the time of the killing. Elizabeth, the appellant’s wife, had been called as the first witness. She stated that she had been married to the appellant but they had separated and she was no longer his wife. At that stage, the trial judge ruled that she was not competent to testify against her husband and discharged her.

In rejecting the accused’s statement that he had killed Chacha because he had found him with his wife, the trial Judge disagreed with the view that he may have been provoked. The Judge remarked that the appellant’s marriage to Elizabeth had broken down so that for all intents and purposes, she was no longer his wife. He found that the appellant had deliberately gone to station himself on the path which would was taken by his victim, Chacha.

The appellant appealed against his conviction on the grounds that the trial judge had erred in refusing to take the evidence of his estranged wife and in failing to give proper consideration to the evidence of provocation.

Held:

1. The law as to the capacity of a spouse as a witness in criminal proceedings is stated in section 127(2)(ii) of the Evidence Act (cap 80). The spouse of a person charged with an offence is a competent witness of the defence save that the spouse shall not be called as a witness except upon the application of the person charged.

2. In subsection (4) of section 127, husband and wife mean the husband and wife of a marriage which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom.

3. From the evidence before the High Court, and from that definition of marriage, Elizabeth was married to the appellant and at the time of the Chacha’s death, the appellant was still her lawful husband although they were separated.

4. Though Elizabeth was a competent witness, she could only be called as a witness upon the application of the appellant. It was improper for her to be called by the prosecution as that was to make her a compellable witness.

5. The defence did not apply for her to be called or for her to proceed with her evidence. The trial Judge was therefore right in not allowing Elizabeth to testify for the prosecution.

6. The trial Judge had put too much emphasis on the marriage having broken down at the expense of the effect produced on the appellant when he found his wife walking with the deceased. In law, Elizabeth was still the appellant’s wife and the appellant could still be provoked by that fact.

7. If after admitting the statement of the appellant in evidence the trial court had given it the same treatment as the other evidence, which it was bound to do, it would have come to the conclusion that the appellant had been provoked.

8. In every criminal trial, a conviction can only be based on the weight of the actual evidence adduced and it is dangerous and inadmissible for a trial judge to put forward a theory not canvassed in evidence or in counsel’s speeches.

9. It was not open to the learned judge to find that the appellant had deliberately stationed himself on the path which was to be followed by the deceased as there was no evidence adduced to that effect.

Appeal allowed, conviction for murder quashed, death sentence set aside, conviction for manslaughter substituted, Appellant sentenced to 10 years imprisonment.

Cases

Okale v Republic [1965] EA 555

Statutes

1. Penal Code (cap 63) sections 203, 204, 205

2. Evidence Act (cap 80) sections 127(2)(ii), (3), (4)

Evidence – circumstantial evidence - standard that such evidence must meet - inculpatory facts to be incompatible with innocence of the accused – where evidence adduced does not directly connect accused to the offence. Evidence – witness – where witness evidence forming basis of conviction is contradictory and insufficient to form basis of conviction.