Chaol Rotil Angela v Republic

Court of Appeal, at Kisumu July 9, 2001

Chunga CJ, Lakha and Owuor JJ A

Criminal Appeal No 56 of 2001

(Being an appeal from the decision and Judgment of ICC Wambilyangah J dated 25th July, 2000 at Kisumu in HC Criminal Case Number 7 of 1994)

Criminal Practice and Procedure- investigation – investigating officer not to record caution statement and charge the accused.

Evidence – documentary evidence – circumstances in which a document may be produced by a person other than its maker.

Criminal Practice and Procedure – assessors - trial by assessors – when presence of assessors may be dispensed with.

The appellant was charged, prosecuted, convicted and sentenced to the mandatory death penalty for a charge of murder contrary to section 204 as read with section 203 of the Penal Code. On appeal, the appellant challenged the following; reliance which the learned trial judge placed on the evidence of a single witness; the admissibility in evidence of the appellant’s extra-judicial statements; the production in evidence of the post-mortem examination report by the investigating officer under section 33 (b) of the Evidence Act (cap 80), and the trial judge’s failure to give reasons for disagreeing with the opinions of the assessors.

Held:

1. It is an undesirable practice for an investigating officer or an officer who has taken an active part in the investigations, to charge a suspect and record his caution statement. Nevertheless, the rule is one of practice only and it does not automatically follow that where an investigating officer has recorded a statement from a suspect, such a statement must be excluded from the evidence.

2. Although section 33(b) of the Evidence Act mentions documents that appear mostly to be business, commercial, or property transaction documents, there is, at the same time, in the section, express reference to documents made in the “discharge of professional duty” which may include post-mortem examination reports, prepared by medical doctors and pathologists.

3. Before section 33(b) of the Evidence Act can apply, the first part of the section must come into operation. That part lays down the conditions precedent without which, any of paragraphs (a) to (b) may not be applied.These are:

i) The maker of the statement must be dead; or

ii) The maker of the statement cannot be found; or

iii) The maker of the statement has become incapable of giving evidence;

or

iv) The attendance of the maker of the statement cannot be procured at all;

or

v) The attendance of the maker of the statement cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the Court to be unreasonable.

4. It is desirable that an expert should attend court and explain to the Court his expert opinion and the grounds upon which that opinion is based. This is more particularly so in a case of a trial with the aid of assessors who might have difficulty in understanding the expert opinion or report without full explanation by the expert. Therefore, sections 33 and 77 of the Evidence Act should only be used in the most exceptional circumstances and where the best possible interests of justice permit their use.

5. A murder trial in the High Court must start and proceed with the aid of three assessors as required by sections 262 and 263 of the Criminal Procedure Code. Unless this happens, the trial cannot be said to be a valid trial. The only exception to this rule is section 298 (1) of the Criminal Procedure Code, where:

(i) An assessor is from any sufficient cause prevented from attending throught the trial.

(ii) An assessor absents himself and it is not practicable immediately to enforce his attendance.

6. The task of the Court does not end merely with admission in evidence of a retracted and repudiated extra-judicial statement. In the summing up to the assessors and in the judgment, the Court must consider the weight of such a statement. The Court must give proper direction to the assessors and duly warn itself on the weight of such a statement.

Appeal dismissed.

Cases

1. Njuguna s/o Kimani & others v Reginam (1954) 21 EACA 316

2. Israeli Kamukolse & others v Reginam (1956) 23 EACA 521

3. Bassan and Kiambu v R [1961] EA 521

4. Cherere Gikuli v Reginam (1954) 21 EACA 304

5. Muthemba s/o Ngombe v Reginam (1954) 21 EACA 234

6. Tuwamoi v Uganda [1967] EA 84

Statutes

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

2. Evidence Act (cap 80) sections 33(b); 77

3. Criminal Procedure Code (cap 75) sections 262, 263, 294(1), 298(1)

Advocates

Mr Ongele for the Appellant

Mr Gacivih for the Respondent

[Ruling] Civil Practice and Procedure - stay of execution - application for stay of execution of a court order pending appeal - High Court having entered summary judgment against the applicant - duty of the application to establish that his intended appeal, if successful, would be rendered nugatory if the prayer for stay was refused - allegation that the applicant may be unable to recover the decretal sum if the appeal succeeds - court considering the financial standing of the respondent - court finding that the respondent was not a man of straw - application refused - Court of Appeal Rules rule 5(2)(b)

Desai v Patel t/a Sandpipers Constructions & Civil

Engineering Services & 13 others

Court of Appeal, at Nairobi July 6, 2001

Gicheru, Tunoi & Shah JJ A

Civil Appeal No 178 of 2000

(An appeal from an Order/Ruling of the High Court of Kenya at Nairobi

(Mr Justice Hayanga) dated 29th day of January 1998 in

HCCC No 473 of 1997)

Civil Practice and Procedure – striking out of pleadings – application to strike out plaint - under order VI rule 13 of the Civil Procedure Rules - failure by the applicant to state the specific sub-rule of the rule 13 under which the application was brought - effect of such failure.

Civil Practice and Procedure – representative suit – directions to be sought on service - duty of plaintiff to seek directions - Civil Procedure Rules rule 8.

The appellant, P C Desai, was one of the defendants in Nairobi High Court Civil Case No 473 of 1997. In the plaint, he was described as the ‘immediate past chairman of premier club’. The chairman of the club and 13 other members were sued by the first respondent, Navin M Patel, trading as ‘Sandpipers Constructions and Civil Engineering Services’ in their capacity as members of the Managing Committee of the club for alleged non-payment for work done and materials supplied by the first respondent to “the defendant”.

The appellant lodged an application in the Superior Court by way of chamber summons, seeking to strike out the plaint. The application was stated to be brought under order 6 rule 13 of the Civil Procedure Rules. The application to strike out the plaint was dismissed by the Superior Court on the ground that it did not indicate precisely the sub-rules of order 6 rule 13 (1) under which it was brought.

Held:

1. The particular sub-rule of rule 13 of order VI of the Civil Procedure Rules under which the application to strike out is made should be specified, and, when the application has been brought to strike out a pleading on the only ground of its disclosing no cause of action, no affidavit evidence may be relied upon. There is no bar to such an application to strike out a pleading being based on any or all of the grounds mentioned in the rule, provided that such grounds have been specified.

2. In a suit where the defendants are sued in representatives capacity, the plaintiff ought to apply under order 1 rule 8 of the Civil Procedure Rules for directions to the effect that the plaintiff gives notice of institution of the suit to all members either personally or by public advertisement if personal service is not reasonably practicable.

3. A court has a right to stop an action at a stage when it is known that a wrong party is sued rather than allow the plaintiff to vex such party with litigation.

Appeal allowed.

Cases

Melika v Mbuvi Civil Appeal No 267 of 1997

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order 1 rule 8; order VI rule 13(1)(b)(d)

Advocates

Miss Gathaara for the 1st Respondent.