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

Wanje v Saikwa (No 2)

Court of Appeal, at Mombasa July 27, 1984

Hancox JA, Chesoni & Nyarangi Ag JJA

Civil Appeal No 72 of 1982

(Appeal from the High Court at Mombasa, Schofield J)

Adverse Possession – proof of – elements to be established – to support a claim of adverse possession – when is possession adverse – meaning of dispossession of true owner supporting adverse possession – when time begins to run in favour of adverse possession.

Limitation of Actions – tenancy at will - under the Limitation of Actions Act (cap 22) – provisions of section 12(1) – determination of tenancy at will.

The four respondents were the registered owners of a piece of land which they had purchased from a previous owner, Hussein Dairy Limited. The ninety-four appellants were alleged to have been living on the land as squatters at the time the respondents purchased it and they had refused to vacate it. The respondents filed a suit in the High Court in which they sought a declaration that the appellants were not entitled to enter and reside upon the land, the eviction of the appellants from the land and damages. In granting the orders sought by the respondents, the trial judge observed that the appellants’ (then the defendants) advocate had in his closing submission suggested that the appellants were entitled to the land by virtue of adverse possession but this claim had neither been pleaded nor proved. The appellants appealed.

Held:

1. In order to acquire by the statute of limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it.

2. What constitutes dispossession of a proprietor are acts done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.

3. A person who occupies another person’s land with that person’s consent cannot be said to be in adverse possession as in reality he has not dispossessed the owner of the land and the possession is not illegal.

4. The appellants had been tenants at will under the previous owner of the land and had not been trespassers.

5. The appellants’ possession of the land could only have become adverse when the period of the notice to quit given by the respondents expired and the appellants had failed to prove the fact of twelve years’ adverse possession.

Appeal dismissed.

Cases

1. Wambugu v Njuguna Civil Appeal No 10 of 1982; [1983] KLR 172

2. Littledale v Liverpool College [1900] 1 CL 19 at p 21

3. Leigh v Jack (1879) 5 Ex D at p264

4. Pearlberg v May [1951] Ch 699

5. Wainaina v Murai and others [1976] KLR 227 at p 231

6. Gatimu Kinguru v Muya Gathangi [1976] KLR 253 at p 260

Texts

1. Megarry, R., (1975) A Manual on the Law of Real Property, London: Stevenson & Sons 5th Edn p 490

2. Topham, A.F., Pratt, E.M., (1936) Mulla on the Transfer of Property Act, 1882 Bombay: N.M. Tripathi Private Ltd, 2nd Edn p569

3. Burke, J., (1977) Jowitt’s Dictionary of English Law London: Sweet & Maxwell, 2nd Edn Vol 2 p1749

Statutes

1. Limitation of Actions Act (cap 22) sections 7, 12(1), 17

2. Transfer of Property Act 1882 section 105

Advocates

Mr Kupalia for Appellants

Mr Kamere for Respondents

Hintz v Mwakima

Court of Appeal, at Mombasa July 26, 1984

Kneller, Chesoni & Nyarangi Ag JA

Civil Appeal No 72 of 1983

(Appeal from the High Court at Mombasa, Bhandari J)

Succession – intestate succession – property of intestate – chose in action in the form of a cause of action – how transmitted and enforced after death of intestate – personal representative – legal representative – heir of the estate of a child – whether such heir capable of suing on behalf of such estate without grant of letters of administration – whether Indian Succession Act 1865 applicable – whether Law of Succession Act (cap 160) applicable – Law Reform Act (cap 26).

Criminal Practice and Procedure - parties – parties to suit – suit for the benefit of an intestate’s estate – how such a suit is instituted – persons by whom such suit may be instituted - heir of the estate of deceased child – whether such heir capable of suing on behalf of such estate without grant of letters of administration - Law Reform Act (cap 26).

Statute – interpretation of statutes – Fatal Accidents Act (cap 32) – Law Reform Act - Law of Succession Act - causes of action arising under Fatal Accidents Act and Law Reform Act – nature of - whether such causes of action separate and distinct - suit for the benefit of an intestate’s estate under Law Reform Act - whether heir capable of suing on behalf of such estate without grant of letters of administration.

Minor – suit by minor – how such suit is instituted – Civil Procedure Rules order XXXI rule 1(1).

Mwakima Mwangombe, a child of the age of four years, died as a result of a traffic accident when a motor vehicle driven by the appellant collided with him on May 1, 1980. In May 1982, the respondent, Mwangombe’s father, filed a suit against the appellant claiming damages under the Law Reform Act (cap 26). In his defence, the appellant contended that the respondent had no cause of action against him under that Act as he had not obtained letters of administration to the estate of the deceased child. It was further submitted that on May 1, 1980 (the day of the deceased’s death), the estates of Africans, who were not Mohammedans, were governed by the Indian Succession Act 1865, under which letters of administration were necessary before a right to any part of the property of a person who had died intestate could be established. In answer to the objection, the respondent argued that the deceased’s cause of action had survived his death and was vested in his estate for the estate’s benefit and that the respondent was not an administrator or legal representative but was a personal representative capable of filing the action without having first obtained letters of administration with respect to the deceased’s estate. The preliminary objection was rejected by the court which held that the respondent was entitled to sue the appellant by reason of not only section 2(1) of the Law Reform Act but also the procedure in section 7 of the Fatal Accidents Act (cap 32). The appellant appealed to the Court of Appeal.

Held:

1. A cause of action in negligence arose and vested in the deceased child at the moment he was injured by the vehicle driven by the appellant and the measure of damages, if he could prove the appellant’s liability, would include fair compensation for his injuries and such loss of expectation of life as was caused to him by that tort.

2. The deceased’s cause of action was property in the form of a chose in action and it was vested in him while he lived. If the deceased had survived the accident, then, since he was a minor, his suit would have had to be instituted in his name by a person referred to as his “next friend” under order XXXI rule 1(1) of the Civil Procedure Rules.

3. An intestate’s property is transmissible to his personal representative such as his next of kin although it may also vest in his legal representative, such as executor or administrator. The deceased’s cause of action against the appellant which comprised his chose in action was his property and the deceased’s property was upon his death transmitted to and not vested in his father, the respondent.

4. A right of action under the Law Reform Act (cap 26) is separate and distinct from a right of action under the Fatal Accidents Act (cap 32) and each Act is independent of the other.

5. Under the Law Reform Act, the right of action is for the benefit of the deceased person’s estate, the money recovered falls into the estate and is subject to the will, if any, of the deceased person and to the claims of his creditors whereas under the Fatal Accidents Act, the right of action is for the benefit of the dependants of the deceased whether the action is brought by the deceased’s personal representative or by the dependant in his personal capacity.

6. The trial judge therefore need not have applied the Fatal Accidents Act as the preliminary objection had been raised under the Law Reform Act.

7. Section 190 of the Indian Succession Act 1865 (which applied to Kenya until July 1981, when it was repealed by the Succession Act (cap 160)), provided that no right to the property of an intestate person could be established unless letters of administration had first been granted, applied to a person seeking to establish a right or claim to part or the whole of a deceased person’s property. The respondent in this case was suing on the deceased’s cause of action and was not seeking to establish a right to the deceased’s property therefore the section did not therefore apply to him.

8. A parent or next of kin or a personal representative can act as a representative of a deceased person and file an action for the benefit of the estate of such person without grant of probate or letters of administration to the estate. If it was intended that an action under the Law Reform Act would be brought by an executor or an administrator, specific provision would have been made to that effect particularly so because that Act commenced ten years after the Fatal Accidents Act.

9. (Kneller JA, dissenting)

The estate of the deceased was subject to the written law which applied to it on the day on which he died. As the plaint was filed on May 25, 1982, it was subject to the provisions of the succession Act hence the administration of the deceased’s estate had to proceed, as far as possible, in accordance with that Act.

10. The right of action vested in the deceased passed under the Law Reform Act to his personal representative and was for the benefit not of the deceased’s dependants but of his estate. Under section 2 of the Law of Succession Act, a personal representative is someone who has been granted letters of administration to the estate of the deceased intestate.

11. The sole heir or one of the heirs of a child may in many instances be his or her father but without a grant, whether general or limited, of letters of administration intestate, the heir cannot represent that estate and bring an action on its behalf because until the grant is obtained by someone, the estate and the legal chose in action are vested in the court. The estate and the legal chose in action automatically pass to the administrator when the grant is obtained.

12. The respondent did not, at common law or in equity or under any written law before or after the Law of Succession Act of Kenya, have the right to bring this action under the Law Reform Act because the chose in action had not vested in him when he filed the plaint or at all and, consequently, the action was and always remained incompetent.

By majority decision, appeal dismissed.

Editorial Note

The points raised in the dissenting judgment of Kneller JA were revisited by the Court of Appeal sitting in Nairobi in the case of Trouistik Union International and Ingrid Ursula Heinz v Jane Mbeyu and Alice Mbeyu Civil Appeal 145 of 1990. The bench of five comprised of Apaloo CJ, Kwach, Cockar, Omolo & Tunoi JJA (as they were then) in a judgment delivered on October 19, 1993 overturned the majority decision of the court in this case. The Court of Appeal held that this case was wrong and that though it had stood for nine years, it had to be overturned.

Cases

1. Hilton v Sutton Steam Laundry (1946) 115 LJK BD 33, 35 CA

2. Burns v Campbell [1951] 2 All ER 965 (CA)

3. The Vera Cruz (No 2) (1884) 9P 96

4. Benjawa Jembe v Priscilla Nyondo (1912) 4 EACA 160, 161

5. Miney Frances v Samuel Bartholomew Kuri as Administrator of the Estate of Samuel Nelson Bartholomew deceased (1951) 24 KLR 1

6. Re Maangi [1968] EA 637, 639 (K)

7. In the matter of the estate of the late Karichwa Pola, Probate and Administration Cause 25 of 1982 (unreported)

8. In the matter of the estate of the late Thomas Kazungu Kavivya Kazau Probate and Administration Cause 100 of 1982 (unreported)

9. Ingall v Moran (1944) 113 LJKB 298, 299 (CA)

10. Rainford v Knowles (1888) 59 LT 359

11. Davies v Powell Duffryn Associated Collierries Ltd [1942] 1 ALL ER 657

Texts

1. Munkman, J., (1980) Damages for Personal Injuries and Death, London: Butterworths, 6th Edn p 135

2. James, J.S., (1971) Stroud’s Judicial Dictionary of Words & Phrases, London: Sweet & Maxwell, 4th Edn

3. Paruck, P.L., (1939) The Indian Succession Act being Act No XXXIX of 1925, Bombay: N.M.Tripathi Ltd 2nd Edn p 294

Statutes

1. Law Reform Act (cap 26) sections 2(1), 4(5), 5(2)

2. Indian Succession Act 1865 sections 190, 187,191, 331

3. Indian Succession Act 1925 section 213

4. Fatal Accidents Act (cap 32) sections 4, 7

5. Workmen’s Compensation Act (cap 236)

6. Civil Procedure Rules (cap 21 Sub Leg) order VII rule 4; order XXXI rule 1(1)

7. Law Reform Act (Miscellaneous Provisions) 1934 [UK]

8. Carriage by Air Act 1932 [UK]

9. Law of Succession Act (cap 160) section 82

10. Application to Natives of the Indian Acts Ordinance 1903

11. Amendments to Applied Indian Acts Ordinance No 10 of 1907

12. Indian Acts (Amendments) Ordinance (cap 2) section 9(1) (Revised Edition Laws of Kenya, 1948)

13. Probate and Administration Act 1881[INDIA]

14. Constitution of Kenya section 26

15. Civil Procedure Act (cap 21) section 2

16. Trustee Act 1850 [UK]

17. East Africa Order in Council 1897

18. Administration of Estates Act 1925 [UK]

Advocates

Mr Inamdar for Appellant 

Mr Mbogholi-Msagha for Respondent

Karukenya & 4 others v Republic

Court of Appeal, at Nairobi July 26, 1984

Kneller, Hancox JJA & Chesoni Ag JA

Criminal Appeal No 53 of 1983

(Appeal from the High Court at Nyeri, Patel J)

Evidence – confessions–– confessions implicating co-accused persons – admissability of confessions – duty of the court when admitting retracted confessions – assessment of evidence when making a finding on the issue of voluntariness – duty of the court when there are allegations and medical evidence of violence – duty of the court to examine circumstances in which confession was obtained – standard of proof of voluntariness of confession.

Criminal law - motive - evidence of motive – in proving commission of a crime –when evidence of motive is sufficient by itself to prove the commission of a crime by a person who possesses motive–– when evidence of motive is admissible – whether motive and opportunity can be corroboration–– evidence of common intention connecting accused persons.

Criminal Practice and Procedure – trial within a trial – conduct of – right of accused to examine witnesses before assessors after trial within a trial – whether it is sufficient for judge to read out to the assessors what transpired in the trial within a trial.

Criminal law - alibi – defence of – duty of the court to analyse and test an alibi.

The appellants were charged and convicted of the offence of murder in the High Court. They appealed against the convictions and sentences. The prosecution case was that they had taken part in a murder and in which four of them were principals in the first degree or second degree while the first appellant was the mastermind of the crime who had lured them. The appeals were on the grounds that the identification parade, the admission of statements and the conduct of the trials within the trials were irregular.

Held:

1. The prosecution does not have to prove motive; neither is evidence of motive sufficient by itself to prove the commission of a crime by the person who possesses the motive.

2. Evidence of motive is admissible and a matter to be considered together with all the other evidence.

3. Although motive and opportunity are important matters to be taken into consideration they cannot in themselves be corroboration.

4. The correct procedure to be adopted after trial within a trial is that the accused will also be entitled to recall and again to examine any of his witnesses who spoke on the issue in the assessors’ absence, and to examine any other defence witness.

5. The principle upon which the procedure is based is that unless all the evidence relating to the disputed confession is given before the assessors, the accused person is deprived of his basic right to have all the admissible evidence weighed and considered by the assessors, who are there to assist the judge in his decision.

6. It is improper for a judge to read over to assessors that which had occurred in the trial within the trial, the assessors should be allowed to hear the evidence for themselves.

7. Extra-judicial confessions by one accused cannot be corroborated by a similar confession of another accused. It was therefore improper for the trial judge to not only act on this confessional evidence as against the first appellant, but also administering no direction either to himself or to the assessors.

8. It is the duty of the court to analyse the alibi by weighing and testing it intrinsically as against the prosecution evidence, to see if it might reasonably be true or if it can safely be rejected as false. It is not sufficient for the court to dismiss it in a perfunctory phrase.

9. A judge is entitled, in the absence of expert evidence, to examine and compare what is said to be writing and a signature of an accused when the issue arises as to whether or not the accused wrote or signed a document. It is improper for a judge to draw a conclusion on what the accused wrote when it was not made before him.

10. In a capital charge it is important that expert evidence be called before the judge and assessors make a finding on the issue of voluntariness.

11. The prosecution must prove beyond reasonable doubt that the alibi was false and this requirement should have been made clearly to the assessors before and not in the judgment.

12. The circumstances surrounding the alleged recording of the statement and the lack of any evidence to prove the voluntary nature of the statement and the lack of any evidence to prove the voluntary nature of the statement made it imprudent and improper to admit the alleged statement in evidence at the trial.

13. The judge ought to have satisfied himself, before he allowed the deposition to be read out, that its reading would not unduly prejudice the appellant.

14. The judge ought to have considered the medical evidence of the doctor who examined the accused and properly accepted or rejected it.

15. It is the duty of every judge and magistrate to examine, with the closest care and attention all the circumstances in which a confession has been obtained from an accused person.

16. The onus of proving affirmatively that a confession has been voluntarily made and not obtained by improper or unlawful questioning or other improper methods is all heavier when actual violence appears to have been used.

17. The statement attributed to the appellant should not have been admitted considering that the prosecution did not prove beyond reasonable doubt that it was voluntarily given and that there was an allegation and medical evidence of violence.

18. The evidence showing the presence of a common intention which connected the 4th and 3rd appellants and the strong circumstantial evidence justified the inference of their guilt.

Appeals of the 3rd, 4th and 5th appellants dismissed, appeals of the 1st and

2nd appellants allowed.

Cases

1. R v Keihemeiza w/o Tindikawa1 (1940) 7 EACA 67

2. R v Wanjerwa [1944] 11 EACA 93

3. Republic v Gae s/o Maimba [1945] 12 EACA 82

4. Republic v Ndara [1945] 12 EACA 84

5. Anyuma Omolo and another v Republic [1953] 20 EACA 218

6. Karaya s/o Njonji and Others v Republic (1953) 20 EACA 324

7. Republic v Kipkering Arap Koske (1949) 16 EACA 135

8. Njuguna s/o Kimani vs Republic [1954] 20 EACA 316

9. Kinyari s/o Karuditu v Reginam [1956] 23 EACA 480

10. Pope v R [1960] EA 132

11. Republic v Samuel Kamau and another High Court (Eldoret) Criminal Case No 300 of 1965 (unreported)

12. Hassan Salum v Republic [1906] EA 126

13. Ssentale v Uganda [1968] EA 365

14. Onyango v Republic [1969] EA 362

15. Mattaka v Republic [1971] EA 495

16. Republic v Mwaniki Wanjau and another High Court (Nyeri) Criminal Case No 7 of 1974 (unreported)

17. Republic v Turnbull [1976] 63 CAR 132; [1976] 3 All ER 549; [1977] QB 224B

18. Republic v Wainana [1978] KLR 11

Statutes

1. Evidence Act (cap 80) sections 26; 32; 32(1), (2)

2. Penal Code (cap 63) section 9(3), 20, 21

4. Criminal Procedure Code (cap 75) section 303 (2)(a)(ii)

5. Evidence Act [India] section 30

Advocates

Swaraj Singh and AR Rebello for the First Appellant

Njenga Njau for the Second Appellant

B Njiru for the Third Appellant

A I Hayanga for the Fourth Appellant

A R Rebello for the Fifth Appellant