James Wanjohi Kinyua v Republic

Court of Appeal, at Nyeri May 16, 2003

Tunoi, O’Kubasu & Keiwua JJ A

Criminal Appeal No 41 of 2003

(Appeal from a conviction and sentence of the High Court at Nyeri (Juma J)

on 8.11.2001 in HCCCr No 16 of 1991)

Evidence - evidence of a minor - appellant convicted of murder on evidence of minors - evidence corroborated by the mother and doctor who carried out post-mortem - whether appellant properly convicted.

Criminal Practice and Procedure - confession - appellant making confession to police - confession retracted - confession admitted after trial within a trial - overwhelming evidence that the appellant killed the deceased - whether statement by the appellant properly admitted.

Criminal law - manslaughter - appellant admitting that death was accidental - no evidence rebutting the allegation - trial judge convicting appellant of murder - whether conviction of manslaughter ought to have been entered.

Minor - evidence of a minor - unsworn testimony of a minor – evidence corroborated and used as a basis for conviction - whether conviction proper.

The appellant was convicted of murder contrary to section 203 as read with section 204 of the Penal Code on the evidence of two minors whose evidence was not taken on oath as the trial judge was of the view that they were too young to understand the meaning of an oath. There was also evidence of the mother of the deceased and that of the doctor who had carried out the post-mortem.

At the time of his arrest the appellant had made a confession to the police which he later retracted but was subsequently admitted following a trial within a trial. In the said statement the appellant alleged that the killing was accidental and the prosecution did not adduce evidence to rebut the claim. The appellant appealed.

Held:

1. There was overwhelming evidence that it was the appellant who cut the deceased on the head as narrated by the two young children whose evidence was corroborated by that of the mother of the deceased and the doctor who conducted a post-mortem examination on the body of the deceased.

2. Considering the evidence adduced during the trial as a whole, the Court was satisfied that the statement by the appellant was properly admitted.

3. In view of what the appellant said in his charge and caution statement that he accidentally cut the deceased and as there was no evidence in rebuttal, the appellant ought to have been given the benefit of doubt.

Appeal allowed, conviction for murder substituted with a conviction for manslaughter.

Cases

1. Okeno v Republic [1972] EA 32

2. Muiruri v Republic [1982-88]1 KAR 150

3. Kolil v R [1959] EA 92

4. Tuwamoi v Uganda [1967] EA 84

Statutes

Penal Code (cap 63) sections 202(1), 203, 204, 205

Advocates

Mr A J Kariuki for Appellant

Kenya Shell Company Ltd v Charles

Court of Appeal, at Nyeri May 16, 2003

Tunoi, Shah & Keiwua JJ A

Civil Appeal No 7 of 2000

(Appeal from a Ruling and Order of High Court at Meru (Omwitsa CA)

dated 9.11.1999 in HC Misc Civil App No 70 of 1999)

Judicial Discretion – exercise of judicial discretion - interference with exercise of judicial discretion of the High Court by appellate court – circumstances in which the court may interfere with exercise of judicial discretion by lower court.

The appellant company appealed against a ruling of the High Court dismissing its application for extension of time on the grounds of laches and indolence. The appellant argued that the Commissioner of Assize in arriving at his decision failed to exercise his discretion judiciously and had ignored the wider interest of justice to have the case decided on its merits.

Held:

1. The decision whether or not to extend the time for appealing is essentially discretionary.

2. In general, the terms which the court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.

3. In the present case the Commissioner of Assize exercised his discretion judicially and not arbitrarily or capriciously as the delay involved was substantial and inordinate.

Appeal dismissed with costs.

Cases

Mbogo v Shah [1968] EA 93

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order IXB rule 8

Advocates

Mr Kimundi for the Appellant.