Mwangi v Republic

Court of Appeal, at Nairobi July 13, 1983

Hancox JA, Chesoni & Nyarangi Ag JJA

Criminal Appeal No 132 of 1983

Assessors - opinion of assessors - how the opinion is stated to Court - representative opinion given by one assessor - whether opinion properly given - whether error in giving opinion a curable defect – Criminal Procedure Code (cap 75) section 322(1), 382.

Assessors - presence of - exclusion of assessors from trial-trials in which assessors are required - circumstances under which assessors are excluded from part of trial - nature of issues required to be heard in absence of assessors - whether improper exclusion of assessors a curable defect - Criminal Procedure Code (cap 75) section 262.

Assessors - evidence to assessors - nature of issues required to be heard in absence of assessors - whether prosecution may rely on evidence given in absence of assessors to establish essential fact.

Criminal Practice and Procedure - retrial - order for - matters that the court needs to consider in ordering retrial.

Evidence - circumstantial evidence - case depending exclusively on circumstantial evidence - how court should proceed before convicting on such evidence - evidence against one accused - whether such evidence is strong evidence - whether such evidence is admissible - Evidence Act (cap 80) section 32(1).

Evidence - statements to police - inquiry statements - charge and caution statements - manner of recording statements - accused giving statement in Swahili and English - statement directly recorded in English – whether statement properly recorded - repudiated statements - onus of proof where statement repudiated - matters with which court has to be satisfied before accepting repudiated statement.

The three appellants were convicted by the High Court of murder and sentenced to death. The evidence against the first appellant was circumstantial, in that he, being a nephew of the deceased who lived with the deceased’s family, had either sold or given some property of the deceased’s son, who had also been killed, and lied about the whereabouts of the deceased and her son a few days after the deceased and all her three children were murdered and secretly buried in their garden. The first appellant was, in addition, adversely mentioned in the second appellant’s inquiry statement.

All the appellants had objected to the admissibility of their alleged statements under inquiry and under charge and caution. One of the inquiry statements of the second appellant had been recorded directly in English although he had spoken in both Swahili and English. The third appellant, on the other hand, had alleged that he had been beaten by the police officers into signing a statement not made by him and that during his beating he had been slapped hard on his left ear. His examination by a doctor a few days after the day of the alleged beating showed that he had a freshly perforated eardrum. This evidence was heard in the main trial and not within the trial within a trial conducted by the court in which it ruled that all the appellants’ statements were properly made and admissible in evidence.

During the evidence of one of the prosecution witnesses, a police inspector who had recorded the inquiry statement of the first appellant, defence counsel had told the court that points of law were likely to arise, at which point the assessors left the court upon the order of the judge. The witness, however, testified to matters of fact in the absence of the assessors and before the trial within a trial at which defence counsel would later object to the admissibility of the statement. At the conclusion of the case, the trial judge, in summing up, asked each assessor to give their individual opinions. When the assessors returned after considering the case, however, the second assessor told the court that assessor number 3 would give their verdict. The judge proceeded to record that which assessor number 3 had said on behalf of all three, which was then agreed to by the other two assessors. Each of the appellants appealed against conviction and sentence.

Held:

1. An offence of murder can be established by evidence tendered directly proving it or by evidence of facts from which a reasonable person can draw the inference that murder had been committed.

2. In a case depending exclusively on circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt. It is also necessary before drawing the inference of the accused’s guilt from the circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. The facts surrounding the first appellant’s possession of the property of one of the deceased persons and his posing as the deceased were incompatible with the appellant’s innocence and inconsistent with any other rational conclusion.

3. Where an accused person has been adversely mentioned in the inquiry statement of another accused person, this is evidence of a weak kind which may be taken into account under section 32(1) of the Evidence Act (cap 80).

4. The proper procedure with regard to inquiry statements is to record the statement in the language(s) used by the accused and then to translate it into English. Both versions of the statement must be produced in evidence and where an accused person makes more than one statement to the police, all his statements must be produced.

5. Where a statement has been repudiated by an accused person as not being voluntarily made, the onus is on the prosecution to prove that the confession was voluntary. The injury to the third appellant’s ear was a matter which could have lent credence to the allegation that the appellant had been beaten in order to sign a statement not made by him and in the circumstances might have led to a finding that the prosecution had not discharged its onus of proof had it been given in the trial within a trial and properly considered.

6. Where the statement of an accused person is challenged, there is need for either its corroboration or a warning followed by a direction of finding that it was safe to act upon it without corroboration.

7. Section 262 of the Criminal Procedure Code (cap 75) requires all trials before the High Court to be with the aid of assessors. This means that they must be present throughout the trial, save only when the admissibility of evidence intended to be adduced is challenged or a point of law otherwise arises. The part of the trial relating to evidence of the witnesses dealing with a most important aspect of the case against the first appellant, namely how he had come to be in possession of the property said to belong to one of the deceased, was without the aid of assessors and therefore contravened section 262.

8. It is necessary that all the evidence on which the prosecution case is based should be given in the assessors’ presence. The prosecution cannot rely on the evidence given in a trial within a trial in the absence of the assessors to establish any of the essential facts of their case.

9. The part of the trial which was held in the absence of the assessors constituted a fatal irregularity in the conduct of the trial which offended section 262 of the Criminal Procedure Code and the appellants did not get a satisfactory trial. An order for a retrial is the proper order to make when an accused person has not had a satisfactory trial.

10. A retrial should not be ordered unless the appellate court is of the opinion that on a proper consideration of the admissible or potentially admissible evidence, a conviction might result.

11. The High Court ought, in a trial with the aid of assessors, not to accept a representative opinion by one of the assessors, even if such opinion is agreed upon by the other two assessors by way of mere confirmation - section 322(1) of the Criminal Procedure Code. When two of the assessors told the trial judge that they had selected the third assessor to speak on their behalf, the judge should have asked them to state their own opinions orally and, if necessary, allowed them to retire again to enable them to form an individual verdict. However, since all the assessors had spoken to the Court, there was no miscarriage of justice occasioned and the irregularity was curable by section 382 of the Criminal Procedure Code.

Appeals allowed.

Cases

1. Peter Kubuita Paul v Republic Cr Appeal No 71 of 1979 (unreported)

2. Simoni Musoke v R [1958] EA 715

3. Teper v R (2) [1952] AC 480 at p 489

4. Raphael Oduor Ngoya & 5 Others v Republic Cr Appeal No 136 of 1981 (unreported)

5. M’riungu v Republic [1983] KLR 455

6. Anyuma s/o Omolo v R (1953) 20 EACA 218

7. R v Mitlande (1940) 7 EACA 46

8. Edong s/o Etat v R (1954) 21 EACA 338

9. Bitton Gichine Mugo v Republic Criminal Appeal No 13 of 1983 (unreported)

10. Francis Juma s/o Musungu [1958] EA 192

11. Ndagizimana and Another v Uganda [1967] EA 35 at p 38

12. R v Vashanjee Liladhar (1946) 13 EACA 150

13. Braganza v R [1957] EA 152 (CA) 469

14. Pyarala Bassan v Republic [1960] EA 854

Text

Taylor, J.P. (1931) A Treatise on the Law of Evidence, London: Sweet & Maxwell, 12th Edn pp 66, 67

Statutes

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

2. Criminal Procedure Code (cap 75) sections 262, 322(1), 382

Advocates

Mr Mahan for Appellants

Mr Mbai 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

Isabella Wanjiru Karanja v Washington Malele

Court of Appeal, at Nairobi

July 1, 1983

Potter, Kneller JJA & Chesoni Ag JA

Civil Appeal No 50 of 1981

Negligence - contributory negligence - assessment of liability - material assessment - circumstances to be considered - when a superior court can interfere with an award in the lower courts - evidence of conflicting accounts - weight given to oral testimony after a long time has lapsed - independent evidence - blameworthiness - obligations of the person in control of a lethal machine.

Precedents - use of - in traffic cases - application of precedents - difference between principles of fact and law - factors to be taken into consideration when applying.

Negligence - contributory negligence - assessment of liability - essential elements in assessment of liability - definition of elements of causation and blameworthiness - categories of negligence - apportionment of blame - factors to be taken into consideration.

Damages - general damages - award of - pain, suffering and loss of amenities - appellant hit by vehicle unconscious for three days and hospitalised for over four months - concussion - fractured femur - recurring pain in hip joint and on the fractured femur - permanent paralysis of left arm - amount of award of general damages in the circumstances.

The appellant was the driver of a motor car which was involved in a collision with the respondent who was a pedestrian on the Jogoo Road in Nairobi. The respondent suffered injuries and filed a plaint in the High Court on September 24, 1974. The trial commenced on February 19, 1979 and judgment was given by Sachdeva J on March 26, 1979. The trial judge found both parties to have been negligent and apportioned the blame 75% to the appellant driver and 25% to the respondent pedestrian. The appellant appealed on grounds of liability and on a quantum of general damages and the respondent cross-appealed arguing that the general damages be re-assessed and increased.

 Held:

 1. There are two elements in assessment of liability, namely, causation and blameworthiness (Baker v Willoughby [1970] AC 467).

2. General damages are to be assessed at the trial and on the evidence available at the trial (Cookson v Knowles [1977] QB 913, [1979] AC 556).

3. No distinction can be drawn between negligence after seeing danger and negligence in not seeing it beforehand. (Harvey v Haulage Executive [1952] 1 KB 120, 129 (CA)).

 4. In assessing blameworthiness the distinction is that the driver had a lethal machine (car) in her control. Apportionment of blame represents an exercise of a discretion with which an appellate court will not interfere with unless it is clearly wrong, based on no evidence at all or if the wrong principle is applied; which was not the case here.

5. The appellate court is usually not in a position to substitute findings of fact reached by the trial court because the trial judge’s proper findings are based on witnesses seen and heard, an advantage the appellate court does not have (Worsford v Howe [1980] 1 WLR 1175 (CA)).

6. In calculating the quantum of damages the principle is to divide the award into two parts, the first part being the actual pecuniary loss upto the date of the trial and the second part being future pecuniary loss from the date of trial onwards. The first part may be calculated arithmetically but the second part is calculated by taking the earning which the injured party would have been receiving at the date of the trial and then using an appropriate multiplier. No interest should be awarded on a lumpsum award at the trial for pain and suffering and loss of amenities.

7. For pain, suffering and loss of amenities, on account of being unconscious for three days after being hit by a vehicle and hospitalised for over four months, suffering a concussion, fractured femur, recurring pain in right hip joint and in the site of the fracture of the femur, and for permanent paralysis of the left arm, the respondent would get general damages in the amount of Kshs 200,000.

Appeal dismissed, cross-appeal allowed.

Cases

1. Baker v Willoughby [1970] AC 467

2. Monahan v Knowsley Engineering Ltd (1973) (Kemp & Kemp 4th Edn Vol II Case No 9-163)

3. Uddin v Associated Portland Cement Manufacturers (1969) (No 9-165 Kemp & Kemp ibid)

 4. Kimothia v Bhamra Tyre Retreaders [1971] EA 81

5. Bhogal v Burbidge [1975] EA 285

6. Mworia v Corrugated Sheets Ltd [1975] EA 240

7. Otieno v Cabro Works Limited, Mombasa Civil Case 628 of 1978  (unreported)

8. Wright v Bennet (Kemp ibid - 9-161/1)

9. Smith v Miles Redfern (Kemp ibid 1982 supplement H7-011)

10. Cookson v Knowles [1977] QB 913; [1979] AC 556; [1977] 2 Lloyd’s Reports 412; [1978] 1 WLR 978

 11. Baker v Longhurst & Sons Ltd [1933] 2 KB 461 at 468

12. Tidy v Battman [1934] 1 KB 319 at 322

 13. Morris v Luton Corporation [1946] 1 KB 114 at 115

14. Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 322 - 4

15. Harvey v Road Haulage Executive [1952] 1 KB 120 at 129 (CA)

16. Worsford v Howe [1980] 1 WLR 1175 (CA)

17. Malde v Angira Civil Appeal No 12 of 1982 (unreported)

18. Gakere v Ngigi [1981] KLR 306

Statutes

 No statute referred to.

Advocates

AB Shah for Appellant

TC Noad for Respondent