Case Metadata |
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| Case Number: | Criminal Appeal 1419 of 1984 |
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| Parties: | Gorhandas Dharamshi & Brothers Ltd v Republic |
| Date Delivered: | 18 Feb 1985 |
| Case Class: | Criminal |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | Judgment |
| Judge(s): | Derek Schofield |
| Citation: | Gorhandas Dharamshi & Brothers Ltd v Republic[1985] eKLR |
| Advocates: | Mr SS Mandla for the Appellant Miss LG Mbarire, State Counsel, for the Respondent |
| Case History: | (Appeal from the Second Class District Magistrate’s Court at Nairobi, Miss B L Obayo) |
| Court Division: | Criminal |
| Parties Profile: | Individual v Government |
| County: | Nairobi |
| Advocates: | Mr SS Mandla for the Appellant Miss LG Mbarire, State Counsel, for the Respondent |
| Case Summary: | Gordhandas Dharamshi & Brothers Limited v Republic High Court, at Nairobi February 18, 1985 Schofield J Criminal Appeal No 1419 of 1984 (Appeal from the Second Class District Magistrate’s Court at Nairobi, Miss B L Obayo) Evidence - exhibits - failure by defence to object to production of - whether defence precluded from denying possession of exhibit. The appellant was convicted on seven counts of manufacturing for sale steel wire nails in contravention of sections 9(2) and 9(4) as read with section 15(1) of the Standards Act (cap 496). The evidence given by two officers of the Kenya Bureau of Standards was that samples of nails had been taken from the appellant’s factory which upon testing were found not to conform to the Bureau’s standards. On the appellant’s argument that the prosecution had failed to establish a claim of possession in respect of the nails, the trial magistrate observed that the defence could not make such a claim as it had not objected to the production of the nails as exhibits. The appellant appealed. Held:
Appeal allowed. Cases No cases referred to Statutes
Advocates
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| History Magistrate: | Miss B L Obayo |
| History Advocates: | Both Parties Represented |
| History County: | Nairobi |
| Case Outcome: | Appeal allowed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 1419 OF 1984
GORDHANDAS DHARAMSHI &
BROTHERS LIMITED................................................APPELLANT
VERSUS
REPUBLIC............................................................RESPONDENT
(Appeal from the Second Class District Magistrate’s Court at Nairobi, Miss B L Obayo)
JUDGMENT
Gordhandas Dharamshi and Brothers Ltd were convicted by a learned District Magistrate II, Nairobi, of seven counts of manufacturing for sale steel wire nails, contrary to section 9(2) and section 9(4) read together with section 15(1) of the Standards Act (cap 496). PW 1, Fida Gulam, a Senior Controller with the Kenya Bureau of Standards, testified that he visited the appellant’s factory on March 12, 1983.
The appellant company manufactures steel wire nails and the witness took samples of different sizes of nails which did not appear to conform to the required standard. He visited the factory again several times and lastly on the April 12, 1984. He took samples of nails of seven different sizes, and it is in respect of these samples that the charges were laid. He took about a quarter kilogram of each size of nail and showed them to the director of the company. He then took them for testing and received a report, G43.
This report was prepared by the only prosecution witness, PW 2, George Odera who is a quality controller with the Kenya Bureau of Standards. He testified that he received some nails and compared them with the specifications laid down by the Kenya Bureau of Standards. He produced his report and also produced to court the remains of the samples and explained to the court the faults he found in the nails. That argument was put to the learned magistrate who dealt with it in this way :
“The defence counsel also argued about the claim of possession of the nails. The nails were produced in court as exhibits by PW 2 and the defence not having objected to their production as exhibits then cannot later on allege that the claim of possession was not established.”
By failing to object to the production of the nails the defence cannot have been said to accept that they were the nails taken as samples from the appellant’s factory. The defence did not know at the stage of their production if other witnesses were to be called to establish the claim of possession. The defence cannot anticipate what witnesses are to be called by the prosecution.
PW 1 the person who took the samples did not testify that he was present at their examination by PW 2. He was not shown the nails exhibited by PW 2 in court. There was no proof that the nails examined by PW 2 were the nails taken as samples by PW 1. In the absence of that proof the convictions are unsafe. I quash the convictions in all seven counts. The sentences and orders paused thereon are set aside and the fines, if paid, must be repaid. Orders accordingly.
Dated and delivered at Nairobi this 18th day of February, 1985.
D.SCHOFIELD
JUDGE
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