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HELLON OWITI WANDOLO Vs NAHASHON MATIVO & ANOTHER[1998]eKLR
Case Number: civ case 2485 of 98	Date Delivered: 25 Nov 1998

Judge: John Luka Osiemo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: HELLON OWITI WANDOLO vs NAHASHON MATIVO & CITY COUNCIL OF NAIROBI

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Citation: HELLON OWITI WANDOLO vs NAHASHON MATIVO & ANOTHER[1998]eKLR

NANAK BODY BUILDERS LTD & ISIK LTD Vs AKIBA LTD[1998]eKLR
Case Number: civ case 56 of 98	Date Delivered: 25 Nov 1998

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: NANAK BODY BUILDERS LTD & ISIK LTD vs AKIBA LTD

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Citation: NANAK BODY BUILDERS LTD & ISIK LTD vs AKIBA LTD[1998]eKLR

Zedekiah Ogada V Albert Ogutu [1998]eKLR
Case Number: civil appl no.nai.221 of 98	Date Delivered: 25 Nov 1998

Judge: Philip Kiptoo Tunoi, Effie Owuor, Richard Otieno Kwach

Court: Court of Appeal at Kisumu

Parties: Zedekiah Ogada v Albert Ogutu

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Citation: Zedekiah Ogada v Albert Ogutu [1998]eKLR

Bata Shoe Company Limited & Another V Lincolin Onchoka Nyabuto [1998]eKLR
Case Number: civil appl no.nai.260 of 98	Date Delivered: 25 Nov 1998

Judge: Riaga Samuel Cornelius Omolo

Court: Court of Appeal at Kisumu

Parties: Bata Shoe Company Limited & Aloice Ojuke v Lincolin Onchoka Nyabuto

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Citation: Bata Shoe Company Limited & another v Lincolin Onchoka Nyabuto [1998]eKLR

Cardinal Wilson Owino & 2 Others V Pope Timothy Ahitler[1998]eKLR
Case Number: civil appl no.nai. 245 of 98	Date Delivered: 24 Nov 1998

Judge: Philip Kiptoo Tunoi

Court: Court of Appeal at Kisumu

Parties: Cardinal Wilson Owino,Arch. Bishop Alfred Oria & Bishop Vitalisondiek v Pope Timothy Ahitler

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Citation: Cardinal Wilson Owino & 2 others v Pope Timothy Ahitler[1998]eKLR

William Abira Kebaki V Edward Obino Kenyariri & Another [1998] EKLR
Case Number: civ app 25 of 97	Date Delivered: 23 Nov 1998

Judge: Zakayo Richard Chesoni

Court: Court of Appeal at Kisumu

Parties: William Abira Kebaki v Edward Obino Kenyariri & Barclays Bank of Kenya Ltd

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Citation: William Abira Kebaki v Edward Obino Kenyariri & another [1998] eKLR

MUSHIMIYAMANA AIMABLE Vs JONATHAN LEAKEY LTD & ANOTHER[1998]eKLR
Case Number: civ case 5038 of 89	Date Delivered: 23 Nov 1998

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: MUSHIMIYAMANA AIMABLE vs JONATHAN LEAKEY LTD & OBED OMARI MOGERE

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Citation: MUSHIMIYAMANA AIMABLE vs JONATHAN LEAKEY LTD & ANOTHER[1998]eKLR

PETER NG'ANG'A MUIRURI Vs CREDIT BANK LTD Formerly CREDIT KENYA LTD[1998]eKLR
Case Number: civil appl no.nai.288 of 98	Date Delivered: 23 Nov 1998

Judge: Amrittal Bhagwanji Shah

Court: Court of Appeal at Nairobi

Parties: PETER NG'ANG'A MUIRURI vs CREDIT BANK LTD Formerly CREDIT KENYA LTD,CHARLES AYAKO,NYACHAE NYACHAE & CO. ADVOCATES

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Citation: PETER NG'ANG'A MUIRURI vs CREDIT BANK LTD Formerly CREDIT KENYA LTD[1998]eKLR

TAHIR SHEIKH SAID TRANSPORTERS (K) LIMITED Vs CHARLES MUGABO[1998]eKLR
Case Number: civil appl no.nai. 283 of 98	Date Delivered: 20 Nov 1998

Judge: Riaga Samuel Cornelius Omolo, Abdulrasul Ahmed Lakha, Effie Owuor

Court: Court of Appeal at Nairobi

Parties: TAHIR SHEIKH SAID TRANSPORTERS (K) LIMITED vs CHARLES MUGABO

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Citation: TAHIR SHEIKH SAID TRANSPORTERS (K) LIMITED vs CHARLES MUGABO[1998]eKLR

Kimilu Kisuni Nzomba V Republic [1998] EKLR
Case Number: Criminal Appeal 7 of 1994	Date Delivered: 20 Nov 1998

Judge: Johnson Evan Gicheru, Gurbachan Singh Pall, Effie Owuor

Court: Court of Appeal at Nairobi

Parties: Kimilu Kisuni Nzomba v Republic

Advocates:

Citation: Kimilu Kisuni Nzomba v Republic [1998] eKLR

CIVIL APPEAL NO 7 OF 1994

CRIMINAL PRACTICE AND PROCEDURE- provocation- where the trial judge fails to direct himself and the assessors on the issue of provocation in a case- whether failure to do so would constitute misdirection and affect the outcome of the case.

SUMMARY OF THE FACTS.

The appellant had been charged with two counts of the murder of BONIFACE KIOKO and MUTIE WAMBUA contrary to section 204 of the Penal Code.

The appellant is said to have been assaulted by one David Ndilo Wambua (PW 8), after a quarrel emerged between them. The appellant is said to have been seriously beaten and had his testicles squeezed by the said wambua, which act seems to have triggered the chain of events leading to the appellant killing both the deceased persons.

When summing up to the assessors, the learned trial judge said that the appellant and P.W.8 had spent the fateful day together and they could have taken traditional liquor and could have quarrelled. He, however, made no reference to the assault allegedly committed on the appellant by P.W.8 and its effects, which according to the appellant, was the genesis of the series of events that took place on the night of 2nd/3rd March, 1989. In his judgment, whereas the learned judge faithfully set out the details of this assault and the subsequent events as narrated by the appellant, he nonetheless did not address himself on whether or not if the appellant was so assaulted as he alleged, that assault could have amounted to provocation. Provocation had been a live issue in the final address to the learned judge by the then counsel for the appellant and respondent.

In his appeal to the court of appeal, the appellant's strongest point was that the issue of provocation was not addressed by the learned trial judge though it was apparent in the proceedings before him, nor was it put to the assessors. According to his counsel, Mr. Keriako Tobiko, this lapse on the part of the learned trial judge led to a miscarriage of justice.

The response of counsel for the respondent, Miss. E. Kamau, was that the assault on the appellant was such that it should not have led him to behave the way he did leading to the death of the two deceased persons. She concluded that the appellant therefore had the necessary intent to kill them.

HELD

There was evidence of provocation; it was the duty of the trial judge to direct himself and the assessors on the issue of provocation. Failure to do so was a serious misdirection for it is not open to this Court to speculate on what the conclusion of the trial judge would have been had the issue of provocation been addressed to the assessors and the learned judge had considered it.

Appeal allowed