Salim & 4 others v Omar & 8 others

High Court, at Nairobi July 12, 1994

Amin J

Civil Suit No 4421 of 1992

Advocate – conduct of an advocate – must be guided by his dual duty to the Court and the client.

Judicial Officer - bias – application for a judge to disqualify himself – whether client’s instruction sufficient basis for such application.

Counsel for the plaintiff made application that the judge hearing this matter disqualifies himself from hearing the application before the Court. The dispute related to the Riruta Muslim Community, the registered owner of Dagorreti/Riruta/908, 909 and 910 where a mosque, school and other communal amenities existed. The reason for the application for disqualification was that since the dispute involved muslims of Sunni and Shia groups, and the judge was a Sunni Muslim who was likely to be biased.

Held:

1. If every dispute as to marking of examinations, every award thereon, every injustice, real or imagined, in short every petty squabble which a person has with the body of which he is or seeks to become a member were to be adjudicated by the Courts, not only would the Courts be forever dealing with the minutiae to which there exists perfectly adequate disciplinary and regulating machinery, but the efficient and smooth working of those bodies would become hopelessly impaired.

2. There have always been recognized causes of action within which a litigant must bring himself to seek the redress or the wrong of which he complains and it is necessary that this should be so. The Courts will not permit matters to be brought before them where there is no real or recognized cause of action or justiciable dispute, and the supposed remedy sought is in the guise of a declaratory suit.

3. Where Rules of Natural Justice are not observed and no adequate machinery exists for the hearing and the determination of disputes amongst members or congregation, the Court will entertain matters involving disputes in church.

4. Advocates, as officers of the Court, owe a duty to the Court as well as their clients.

5. Contempt of court is a matter which is not to be taken lightly.

6. The law applicable to matters of contempt is the law for the time being applied by the High Court of Justice in England.

7. Contempt of court means any act done or writing published which is calculated to bring a Court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court. Thus scurrilous abuse of a judge or Court, or attacks on the personal character of a judge, are punishable as contempt.

8. Once an act is done, or a writing is published with any of the intentions stated, then it is irrelevant whether it be done when the judicial proceedings are still in progress or after the proceedings have been terminated.

9. Punishment for contempt is inflicted, not for the purpose of protecting either the Court as a whole or the individual judges of the Court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired.

10. A client’s instructions are never themselves sufficient to justify an application for the removal of a judge on the ground of bias or apparent bias. Such an application should only be made where counsel was satisfied that there was material on which it could properly be brought. Counsel’s duty to the Court and to the wider interest of justice require that he should not lend himself to making such an application unless he was conscientiously satisfied that there was material on which he could properly do so.

11. It would not serve the interests of justice if parties or advocates were allowed to appoint a bench to suit their taste or convenience. All judges of the High Court are competent to hear any matter listed before them in conformity with their jurisdiction, inherent or appellate.

Cases

1. Solomon, Asha Karanja v Presbetarian Church of East Africa & 4 others High Court Civil Suit No 2859 of 1977

2. Regina v Gray [1900] 2 QB 36

3. Arab Monetary Fund v Hashim & others (No 8) The Times May 4, 1993

4. Republic v Makali & 3 others [1994] KLR...

Texts

Hailsham, Lord et al (Eds) (1974) Halsbury’s Laws of England London: Butterworths & Co 4th Edn Vol IX p 21 para 27

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XLI rules 4, 32

2. Judicature Act (cap 8) section 5(1)

3. Constitution of Kenya

Advocates

Mr Kitonga for the Plaintiffs

Mr Khalwale for the Defendants

Khan v City Commission of Nairobi

High Court, at Nairobi July 12, 1994

Oguk J

Criminal Revision No 43 of 1992

From original order in Criminal Case No 6696 of the 1992 of the 1st Class Magistrate’s Court at City Court: PDJ Mwangulu Esq)

Civil Practice and Procedure – interpretation of statutes – Public Health Act section 120(9) – definition of dwelling house and premises – where the law makes provision for securing and maintaining health in a dwelling – where it is common knowledge that several people live behind their business premises – whether the Court should apply strict interpretation to section 120(9) of Public Health Act.

The applicant was one of 29 tenants of respondent at premises known as LR 209/233/6 Nairobi, which comprises 5 shops and 24 dwelling rooms. He occupied one of the shops for purpose of making coffins. Sometimes around 21.8.1992 the respondent, one Kavindyo Isai was arraigned in Court on charge for failing to comply with notice issued under section 119 of Public Health Act, as read with section 115 and 120(1) of the said Act for failing to abate nuisance. He admitted offence and was convicted. In mitigation he stated that there were occupants in the premises which made it difficult for him to abate the nuisance. He was asked to pay a fine. The Court ordered the occupants to show cause why premises should not be closed. The Court visited the premises and made a ruling that the occupants should give vacant possession. The applicants were aggrieved hence filed an application for the said order to be revised.

The applicant’s case was that the Court had no jurisdiction to order closure under section 120(9) of Public Health Act since premises were for commercial purpose as opposed to dwelling.

Held:

1. It was not the intention of the Legislature to restrict the power of the Courts to issue closing orders where a nuisance exists which renders a building inhabitable to only those premises which were being used as dwellings.

2. It is the health of those who occupy such premises either for purposes of dwelling or carrying out business that the Act aims to protect.

3. The Court will give a narrower interpretation to section 120(9) of the

Public Health Act so as to restrict its scope and operation to dwelling houses only.

Preliminary point of law taken on behalf of applicant dismissed.

Cases

No cases referred to.

Statutes

Public Health Act (cap 242)

Advocates

Mr Shehmi for the Applicant

Mr Sharma for the Respondent

Kiarie v Njoroge

Court of Appeal, at Nairobi July 6, 1994

Cockar, Muli & Tunoi JJ A

Civil Appeal No 76 of 1986

(Being an appeal from the judgment and decree of the High Court of Kenya at Nairobi (Mr Justice William Mbaya)  dated 17th October, 1985 in HCC No 2153 of 1979)

Defamation – slander - allegation of malice – where the defendant pleads fair comment on a matter of public interest – plaintiff to prove desire to injure by the defendant.

Defamation – malice - plaint alleging malice without giving particulars – defence filed pleading fair comment on a matter of public interest – plaintiff failing to file a reply to defence – whether defendant obliged to tender evidence to rebut allegation of malice.

The appellant’s suit claiming damages for defamation was dismissed by the High Court. His claim was based on the words uttered by the respondent to the effect that the appellant had embezzled project funds and was going to be jailed for that.

From the evidence during the trial it emerged that indeed some money remained unaccounted for during the period the appellant was chairman of the water project. The trial judge in dismissing the appellant’s claim concluded that in view of this, the comments by the respondent were not actuated by malice but were a fair comment on a matter of public interest.

Although the respondent pleaded fair comment, in his defence, the appellant neither gave particulars of malice in his plaint nor filed any reply to the defence as stipulated by order 6 rule 6A (3) of the Civil Procedure Rules.

Held:

1. Where a malicious publication is alleged in the plaint but not the particulars of facts on which the plaintiff relies in support of the allegation of malice, and the defence pleads fair comment on a matter of public interest he shall file a reply giving the particulars of the facts and matters from which the malice is to be inferred.

2. The judge did not err when he found that the fact that some money that had been collected during the appellant’s tenure of chairmanship had gone missing, and the fact that the loss had not been explained had formed a proper factual basis for a fair comment to be made thereon.

3. The words uttered by the respondent clearly were strong, but there was no malice.

4. The desire to injure must be the dorminant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in a bona fide protection of his own legitimate interest.

Appeal dismissed.

Cases

1. Figueredo v Editor, Sunday Nation [1968] EA 501

2. Dickson v Earl of Wilton (1859) F & F 419

3. Peter Walker & Sons Ltd v Hodgson [1909] 1 KB 239

Texts

Lewis, P (Ed) (1981) Gatley on Libel & Slander London: Sweet & Maxwell 8th Edn paras 765, 766

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order VI rule 6A (3)

Advocates

Mr Akhaabi for the Appellant

Mrs Madahana for the Respondent

Mwaura & another v Republic

Court of Appeal, at Nairobi July 1, 1994

Cockar, Muli & Akiwumi JJ A

Criminal Appeal No 58 of 1989

(Appeal from a conviction and sentence, judgment of the High Court of Kenya at Nairobi (Mr Justice Osiemo) dated 25th April, 1989 in Criminal Case No 52 of 1988)

Criminal law - murder – death sentence – keeping a convict in death row for too long - effect of.

Criminal Practice and Procedure - retrial – when can be ordered.

The appellants were tried and convicted for murder by the High Court and sentenced to death.

Their appeal to the Court of Appeal could not be heard as the record was illegible and therefore in contravention of rule 13 of the Court of Appeal Rules. Despite the order of the court that a more legible record be compiled none came forth. Besides it transpired that the original handwritten note of the trial judge could not be traced.

At the resumed hearing, the appellants’ advocates argued that the record of appeal was incompetent as the record had not been certified and that the original proceedings had not also been sent to the Court of Appeal as required by rule 62 (2) of the Court of Appeal Rules.

The learned state counsel while conceding that there was no certified record of appeal urged the Court to order a retrial on the ground that failure to certify the record of appeal was mere procedural irregularity and it would be miscarriage of justice to acquit the appellants.

The Court noted that the delay which amounted to five years could not be attributed to the appellants.

Held:

1. There was instinctive revulsion against the prospect of hanging a man after he had been held under sentence of death for many years.

2. If delay was due entirely to fault of the accused, he could not be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime.

3. A trial may be ordered where the original trial was defective, if the interest of justice so require and if no prejudice was caused to the accused.

4. The three conditions that must be satisfied are conjuctive and not disjunctive and one of them which must be present but which was absent in this application was that the trial in the superior court cannot be said to have been defective.

Conviction set aside.

Cases

1. Pratt v AG for Jamaica [1993] 4 All ER 769; [1994] 2 AC 1; [1993] 3 WLR 995

2. Olima & another v Republic [1993] KLR ...

3. Abdi Moge & 3 others v Rex (1948) 15 EACA 86

4. Simpson v Nakuru District Council [1948] 19 KLR 27

5. Otieno & another v Republic [1991] KLR 493; [1989] 2 KAR 251

6. Mawenye v Rex (1942) 9 EACA 70

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 13(2); 29; 61(2) (6)

2. Penal Code (cap 63) sections 203, 204

3. Evidence Act (cap 80)

Advocates

Mr Njugi for the 1st Appellant

Mr Otieno for the 2nd Appellant

Mr Okumu for the Respondent/Republic

Kemboi v Republic

High Court, at Eldoret June 30, 1994

Nambuye J

Criminal Appeal No 60 of 1994

Criminal Practice and Procedure – sentencing – where accused presents mitigating factors on a charge of stealing by servant – that she was the sole bread winner of the family – whether non-custodial sentence should be imposed by the Court.

The appellant was charged in Kapsabet Senior Resident Magistrate’s Court with 2 counts of stealing by agent, and stealing, contrary to sections 283(b) and 275 of the Penal Code respectively. She was convicted and sentenced to serve 15 months imprisonment in count 1 and 12 months imprisonment in count 2.

The appellant’s case was that the learned Senior Resident Magistrate erred in law and in fact in convicting the appellant on insufficient evidence, in not considering mitigation circumstances and finally that this was a case which merited non custodial sentence.

Held:

1. There were mitigating factors to the effect that the appellant did not benefit from the money she was now willing to refund.

2. This was a case fit for a non custodial sentence.

Appeal allowed on sentence.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 275, 283

2. Chang’aa Prohibition Act (cap 70) sections 3(1); 4(1)

Kabage v Republic

High Court, at Nyeri June 29, 1994

Ang’awa J

Criminal Appeal No 282 of 1992

(From original conviction and sentence in PM’s  Criminal Case No 92 of 1991 at Nyeri)

Evidence – technical witness – where an accused never challenged technical report – whether technical witness should be called to be subjected to cross-examination.

The two accused persons in this case were charged with the offence of attempting to obtain money by false pretence contrary to section 313 as read with section 389 of the Penal Code. The 1st accused had a debt at a bar of Kshs 59. He had no Kenyan currency, so he sought to change $500, with a passport which belonged to the second accused. The second accused was however acquitted but accused was convicted.

The accused’s case was to the effect that he did not know whether dollars were fake nor did the charge disclose that he tried to obtain money by false pretences.

Held:

1. The appellant never challenged the report nor the fact that the dollars were fake.

2. There was quite a considerable evidence against 2nd accused under the doctrine of aiding and abetting the appellant, but the trial magistrate used discretion to acquit him, so the High Court is not permitted to interfere with his acquittal.

3. The facts which have to be proved to establish guilt must be proved beyond all reasonable doubt on evidence considered as a whole.

Appeal rejected.

Cases

Mwaula & Muthoka v Republic [1976 - 80] 1 KLR 1656

Statutes

1. Penal Code (cap 63) sections 313, 389

2. Criminal Procedure Code (cap 75) section 214

Advocates

Mr Mwangi for Mr Waweru for the Appellant

Mr Maari for the State/Respondent

Kahehu & 2 others v Republic

High Court, at Nairobi June 24, 1994

Oguk J

Criminal Appeals Nos 1210, 1214 & 1215 of 1991 (consolidated)

(From original conviction and sentence in Criminal Case  No 2072 of 1991 of the Resident Magistrate’s Court  at Kiambu: R K Mwangi Esq)

Evidence – identification – single witness – where circumstances are not conductive for proper identification – where there’s no corroboration – whether it’s safe to convict on such evidence.

Evidence – recent possession – doctrine of – clothes stolen in robbery – where one identifies his clothes – person in possession identified as part of the group involved in the robbery – whether this was sufficient to support a conviction.

Evidence – admissibility of – receipt books – where one leads police to recover stolen receipt books robbed – whether such evidence admissible to connect one to robbery – section 31 of Evidence Act cap 80 Laws of Kenya.

The 3 appellants were jointly charged before the learned Resident Magistrate, Kiambu on a charge comprising 3 counts of offence of robbery contrary to section 296(1) of the Penal Code. Each denied the offences but after trial, the Court convicted the 1st appellant on 3rd count but acquitted him on counts 1 and 2. The 2nd appellant was convicted on counts 2 and 3 but acquitted on count 1, while 3rd appellant was convicted on count 1 and 2 but acquitted on 3rd count. The 2nd and 3rd appellants were sentenced on each of the 2 counts to serve 10 strokes corporal punishment. The 1st appellant was also sentenced to 7 years with 10 strokes. They were all ordered to undergo a period of police supervision for 5 years upon completion.

Prosecution’s case is to the effect that on the night of 27.4.1991, the complainant David Maina Waweru, a matatu operator was ordered to stop by some passengers, robbed them of various valuables, stripped naked, and left in the bush. On the same night another complainant, Livingstone Gachoki Kimicha (PW2) testified that he was driving his motor vehicle Reg No KQK 109 from Maragwa towards Kirinyaga when he found 2 men supporting 3rd man who was allegedly sick. He was stopped to carry the said man to hospital and he complied. He was held by the neck, other men came from bush, robbed of wrist watch and Shs 960/= was taken to bush, beaten and further robbed of cash and tied to a tree. Later PW1 was reading newspaper on 22.5.1991 when he saw one of the people who had been convicted wearing his robbed jeans clothes.

The defence case was to the effect that all the appellants never participated in the alleged robbery and further attacked the correctness of their identification at the identification parade.

Held:

1. There was insufficient evidence to support the charge laid against the appellants in count 3.

2. In absence of any corroboration of the testimony of the 3rd complainant, the Court is satisfied that the conviction of the 1st and 2nd appellants was not safe.

3. The available evidence of recent possession is more consistent with the 2nd appellant having been one of the thieves who had attacked and robbed the complainant.

4. The evidence that the 3rd appellant is the one who took the police to the bush near Muranga town where two receipt books were recovered is admissible under section 31 of the Evidence Act, as it directly connects the 3rd appellant with the robberies that occurred on the 1st and 2nd complainants on the night of 27/28th April, 1991.

Appeal on 1st appellant’s conviction and sentence allowed.

Appeal on 2nd appellant’s conviction and sentence in count 3 allowed. Conviction and imprisonment sentence in count 2 stands. Corporal punishment reduced to 4 strokes.

Appeal on 3rd appellant’s conviction & sentence in count 3 allowed. Conviction and sentence in count 1 and 2 stands. Corporal punishment in count 2 reduced to 2 strokes.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 296 (1)

2. Evidence Act (cap 80) section 31

Advocates

Mrs Shikuku for the Respondent/State

Ekaita v Republic

Court of Appeal, at Kisumu June 23, 1994

Gachuhi, Gicheru & Omolo JJ A

Criminal Appeal No 25 of 1994

(Appeal from a judgment of the High Court of Kenya at Kisumu  (Mr Justice JA Mango) dated 14th January, 1994 in  HCCR No 9 of 1992)

Criminal law – murder – malice aforethought – meaning of - accused assaulting the deceased for more than half an hour with a walking stick – no evidence led on the size of the stick – whether malice aforethought was established.

Criminal law - murder – assessors – summing up to the assessors – trial judge to record notes of the summing up.

The appellant was tried and convicted of murder and sentenced to death as authorized by law.

The evidence in support of his conviction was that he assaulted the deceased using a walking stick called “Kakamega stick” for more than half an hour. The deceased was arrested and put in his custody at the chief’s camp on suspicion of stock theft.

At the hearing of the appeal it was submitted on behalf of the appellant that before the alleged assault the deceased had been beaten by members of the public. It was therefore not clear whose assault was responsible for the deceased’s death.

The appellant further complained that failure by the trial judge to record notes of his summing up to the assessors amounted to miscarriage of justice.

The appellate court while dismissing the appellants’ contention over who was responsible for the fatal assault noted that no evidence was available or led as to the size of the so called “Kakamega stick” with some witnesses calling it a club while others, a walking stick.

Held:

1. Where an accused knows that there is a serious risk that death or grievious bodily harm will ensue from his acts, and he proceeds to

commit those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as a result of those acts constitutes malice aforethought.

2. From the evidence available before him, the beating had lasted over thirty minutes. The only snag was the absence of positive evidence as to the size of the appellant’s “Kakamega stick”.

3. In the absence of such evidence and finding, it remained a matter of guess whether or not the appellant knew that there was a serious risk that death or grievious bodily harm would ensue from his sustained assault on the deceased.

4. The possibility therefore that the appellant killed the deceased by a sustained unlawful assault but without the intent necessary to constitute malice requisite to the proof of the offence of murder contrary to section 204 of the Penal Code cannot be excluded.

5. It is desirable that the trial judge should sum upto the assessors and that when he does so, notes of the summing up should appear on the record of the proceedings.

Appeal allowed manslaughter substituted for murder.

Cases

1. Mukono v Uganda [1965] EA 491

2. Upar v Uganda [1971] EA 98

Statutes

Penal Code (cap 63) sections 204; 205; 206(b)

Advocates

Mr Wesa for the Appellant

Mr Karanja for the State/Respondent

Municipal Council of Mombasa v Kanji & others

Ex Parte Ladha

High Court, at Mombasa June 23, 1994

Wambilyangah J

Miscellaneous Civil Application No 67 of 1992

Judicial Review – application for – certiorari and mandamus – where it’s shown that leave was sought – where one objects stating leave was not sought – where original files are lost – whether preliminary objection should be granted or disallowed – Civil Procedure Rules order LIII.

This was an application for judicial review seeking orders of certiorari and mandamus under order LIII of the Civil Procedure Rules.

This was in relation to the suit that had been filed by Municipal Council of Mombasa to recover the outstanding arrears of rates in respect of property No 302 section V/MN registered in the name of one Alibhai Kanji.

It was argued on behalf of the applicant that the property should not have been sold by an auctioneer who purported to execute a decree issued by a Magistrate’s Court because the purported service of the summons to enter appearance in the case had not been effected.

The respondent’s counsel raised a preliminary point whose thrust was that the applicant did not issue notice nor did he obtain the leave of the Court both of which were mandatory requirements under the Rules before the Rules in LN 164 of 1992 purportedly abolished them.

Held:

1. Where it is proved that there was a defective or no service of the process but which followed by unseemingly hurried court proceedings and orders, the High Court would invoke its jurisdiction of judicial review and make an order of certiorari, mandamus or prohibition in favour of an aggrieved party. The Court’s duty on such an application will only confine itself to the question of legality.

2. The remedy of certiorari is discretionary. It is available to the High Court for the purpose of ensuring that the lower courts do not abuse or exceed their powers and thereby make irregular and oppressive orders.

3. This application itself related to fundamental issues which had to be determined on merit.

Objection disallowed.

Cases

Matiba, Kenneth Stanley Njindo v Attorney General Civil Application No 790 of 1993

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order LIII

Advocates

Mr Gautama for the Applicant

Mr Gikandi for the Respondent

[Ruling]-Civil practice and procedure-review-application to review the orders appointing the decree-holder as the legal representative of the deceased/plaintiff –application on the ground that there was an error of law on the face of record and the error had adversely affected the applicant/defendant-claim by the applicant that prior to the death of the plaintiff they had amicably settled the plaintiff's claim out of court which amicable settlement was however not recorded as the plaintiff died soon after reaching the settlement-discretion of the court to review-scope of an application for review –whether the application was merited-Section. 80 of the Civil Procedure Act, and Order 44 of the Civil Procedure Rules