Patrick Kihara Njoroge v Republic

Court of Appeal, at Nakuru

March 15, 2002

Chunga CJ, Bosire & O’Kubasu JJ A

Criminal Appeal No 27 of 2001

(Appeal from conviction and sentence in the High Court at Nakuru, Rimita J, dated 26th January 2001, in High Court Criminal Case No 20 of 1999)

Criminal Law – murder – appellant and deceased involved in a drunkard’s brawl – death resulting from brawl – no evidence that the appellant too drunk to form guilty intention – trial judge convicting appellant for manslaughter – whether proper for appellate court to interfere with the judge’s findings.

Criminal Practice and Procedure - appeal – appellant convicted on clear evidence and admission – appellant appealing against conviction and sentence – whether any merits lie in appeal.

Judgment – contents of - trial judge not indicating points for determination nor decision thereon – no reasons for the decision – whether the error was fatal to conviction.

Criminal Law – intoxication – killing committed in a drunken brawl – whether accused person too drunk to form the guilty intention necessary to prove murder.

The appellant had been charged with murder contrary to section 203 as read with section 204 of the Penal Code (cap 63) but after his trial he was found guilty of the lesser offence of manslaughter and accordingly convicted and sentenced to five years imprisonment. The evidence before the learned judge was to the effect that there had been a disturbance in which the appellant and the deceased were involved and in the end the appellant stabbed the deceased with a knife. The appellant appealed against both conviction and sentence.

Held:

1. This was a case in which the appellant and the deceased were involved in a drunkard’s brawl and the deceased lost life at the hands of the appellant.

2. From the evidence it could not be said with certainty that the appellant was so drunk that he was incapable of forming any guilty intention.

3. Since the charge of murder was reduced to manslaughter it would not be appropriate to interfere with the trial judge’s findings.

4. The appellant was convicted on clear evidence and in view of his own admission that he killed the deceased, there was no merit in the appeal against conviction.

 5. The trial judge’s judgement did not comply with section 169(1) of the Criminal Procedure Code (cap 75) but on the facts of the case the error was not fatal to the conviction and the same was curable under the provisions of section 382 of that Act.

Cases

No cases referred to.

Statutes

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

2. Criminal Procedure Code (cap 75) section 169(1)

Joseph Cheruiyot Langat v Republic

Court of Appeal, at Nakuru

March 15, 2002

Chunga CJ, Shah & Bosire JJ A

Criminal Appeal No 183 of 2000

(Appeal from a judgment and sentence of the High Court at Kericho, Ondeyo J, dated October 27, 2000 in HCCC No 22 of 1998)

Criminal Law - provocation – provocation as a defence to a charge of murder – circumstances in which provocation may not suffice to reduce such a charge to manslaughter – Penal Code (cap 63) sections 207, 298.

Assessors – excluding of assessor from trial – Criminal Procedure Code (cap 75) section 298(1)–– circumstances in which a court may exclude an assessor – whether proper to exclude assessor without inquiring as to the reasons for his absence – court not taking any steps to ensure the assessor’s attendance before excluding him – assessor absent during final submissions and summing up–– whether assessor’s absence a curable defect or fatal to the conviction of the accused.

The appellant was convicted by the High Court on an information charging him with the murder of his father, who had died as a result of severe haemorrhage from three cut wounds inflicted on his head, neck and wrist. At a resumed hearing of the case following the close of the evidence for the defence, one of the three assessors had been absent and the trial judge had made an order excluding him from the trial so that the submissions of counsel and the summing up proceeded in his absence.

In her judgment, the trial judge rejected the defence case that it was the deceased who had attacked and provoked the appellant. She found also that the nature, number and severity of the injuries sustained by the deceased was inconsistent with the appellant’s defence that he had cut the deceased by mistake and that if anything, they showed that he had the necessary malice aforethought to support the charge of murder.

On appeal, the appellant argued that the trial judge had erred convicting him and in failing to consider that he had only been defending himself and that he had no ill motive. His advocate also submitted that he lacked the necessary mens rea and that even if he had used disproportionate force, he could only have been guilty of the lesser offence of manslaughter.

Held:

1. Penal Code (cap 63) section 9(3) was clear that unless expressly declared by a provision of law creating an offence, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial so far as regards criminal responsibility. The appellant’s motive for cutting his father was not a matter the trial judge could properly consider in coming to a decision as to his guilt or innocence.

2. The appellant’s defence at his trial was not provocation but that he had cut the deceased accidentally. Even assuming that he had raised the defence of provocation, the facts of the case and his conduct took his case outside that defence under section 207 of the Penal Code (cap 63).

3. It is not every act of provocation which will reduce the charge of murder to manslaughter as it is material to consider such circumstances as the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used. The trial judge in this case properly ruled out provocation after considering these aspects and the respective ages of the appellant and the deceased.

 4. On the evidence, the attack on the deceased was premeditated and vicious and neither provocation nor self defence was disclosed. The appellant’s conviction was based on overwhelming and acceptable evidence.

5. Under the Criminal Procedure Code (cap 75) sections 297 and 298, it is the court’s prerogative to select assessors and also to exclude an assessor from a trial for sufficient cause. However, section 298(1) presupposes that before a court excludes an assessor from a trial, it must inquire as to the reasons for his non-attendance, or where it is not possible to enforce his immediate attendance, then, and only then, can a court properly proceed with the trial in his absence.

6. The trial judge neither conducted an inquiry as to the reasons for the assessor’s non-attendance nor did she indicate in the court record that some steps had been taken, without success, to ensure his attendance before she decided to proceed in his absence. This was an error of law.

7. This error was curable on the facts and circumstances of this case but in an appropriate case, it might be fatal to an otherwise sound conviction. It is not a light matter to exclude an assessor from proceedings.

Appeal dismissed.

Cases

1. Mungai v Republic [1984] KLR 85; [1982-88] 1 KAR 611

2. Tei s/o Kabya v R [1961] EA 580

 3. Doto s/o Mtaki v R [1959] EA 860

Statutes

1. Penal Code (cap 63) sections 9(3), 203, 204, 207, 208

 2. Criminal Procedure Code (cap 75) section 297, 298(1), 382

Advocates

DG Kisila for the Appellant

EO Onderi, State Counsel, for the Republic

National Housing Corporation v Nairobi City Council & another

High Court, at Nairobi

March 15, 2002

Mwera J

Civil Case No 404 of 1998

Civil Practice and Procedure – execution – execution against local authority – decree holder seeking execution by way of garnishee order – no written permission given by the clerk of the local authority – effect of section 263 A (a) of Local Government Act (cap 265).

Civil Practice and Procedure – execution – against local authority – clerk failing to pay the decretal sum – order of mandamus to issue.

Local authority – execution against a local authority – immunity of local authority from attachment of its property – whether bank account of local authority may be attached – whether local authority amenable to garnishee proceedings – Local Government Act (cap 265) section 263 A(a).

The plaintiff, being a decree holder, moved the court seeking to be granted an order absolute for garnishee raised against the garnishee so that the defendant’s funds lying in its two accounts with the garnishee are attached and paid over to the decree holder. The defendant opposed the application, arguing that as a local authority, no attachment could be effected without written permission of the clerk. It also emerged that the clerk had failed to pay the decretal sum decreed by the court.

Held:

1. The law prohibited all attachment of a local authority’s property (read assets) in whatever form unless the Town Clerk gave his written permission.

2. What was open to the decree–holder was to move by process of law (Mandamus) to get the defendant’s Town Clerk without delay to cause to be paid out of the revenue the amount owed.

 Application dismissed.

Cases

1. Municipal Council of Kisumu v Neela Patel Civil Appeal No NAI 29 of 2001

 2. Gimco Ltd v Kenya Railways Corporation High Court Civil Case No 1532 of 2000

3. Yomason Contractors Ltd v Nairobi City Council High Cout Civil Case No 1443 of 2000

Texts

Osborn, PG (1964) A Concise Law Dictionary London: Sweet & Maxwell 4th Edn

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXII rules 1, 1A, 3, 10

2. Civil Procedure Act (cap 21) section 3A

3. Local Government Act (cap 265) section 263A

 Advocates

Maingi for the Plaintiff/Decree-holder

Munikah for the Defendant/Judgment-debtor

 O Chacha for the Garnishee