Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL Conviction Based on Identification Evidence Jackson Kyalo Munge v Republic Court: Court of Appeal, at Nairobi Judge: P K Tunoi, E M Githinji & J G Nyamu JJ A. Case Number: Criminal Appeal No. 70 of 2007. Date: June 4, 2010. Reported by C W Lupao. Evidence-identification-accused seen and identified by witnesses in broad daylight-conviction based on such identificationwhether such conviction is safe. Criminal Law-confessions-accused confessing to the offence during inquiry-statement under inquiry admitted after trial within a trial-effect of. This was a second appeal by the appellant against conviction and sentence for the offence of robbery with violence. Counsel for the appellant argued that the first appellate court erred in affirming the decision of the trial magistrate notwithstanding that evidence of the eye-witnesses regarding visual identification was riddled with contradictions such that it was impossible to separate truth from untruth and that the appellant’s statement – under – inquiry which had been admitted in evidence ought not to have been admitted since the prosecution did not prove that the same was voluntarily made. Held: 1. The statement-under-Inquiry, which was made by the appellant and admitted by the trial court was admitted after a trial-within-a trial, thus making it proper to admit the statement. 2. After analyzing the evidence on identification the Court of Appeal was satisfied that the evidence of the witnesses who recognized the appellant driving away the stolen head of cattle could safely be relied upon as valid evidence of identification 3. The conviction of the appellant was based on the evidence of recognition. The appellant was positively identified by two witnesses who knew him well having seen him at about 5.30 p.m. in broad daylight in possession of the stolen cattle. Appeal dismissed. Statutory Power of Sale Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another Civil Appeal No. 164 of 2002 Court of Appeal, at Nairobi May 28, 2010 P. K Tunoi, S. O. E Bosire & J. W. Onyango Otieno, JJA Reported by Nelson Tunoi Case History An appeal from the judgment of the High Court of Kenya at Nairobi (Shah, J) dated 13th August, 1995 in HCCC No 5152 of 1990 The Hon. Mr. Justice W. Onyango Otieno Charges - statutory power of sale-where the first respondent exercised the statutory power of sale and sold the appellant’s property to the second respondent by public auction-whether the first respondent was entitled to exercise the statutory power of sale-where the suit property was registered in the second respondent’s name-equity of redemption-whether the appellant’s equity of redemption was extinguished Land law - statutory notice - service of notice-statutory power of sale-provisions of the Registered Lands Act with regard to statutory power of sale-whether the statutory notices were valid-where first respondent’s statutory power of sale had accrued-Registered Land Act (cap 300) sections 65 (2), 74 (1) (a), 77 (4) Charge - statutory power of sale - sale by public auction-where the suit property was sold to the second respondent through public auction-where the purchase price was paid after four days instead of the required 25% at the fall of the hammer and the balance within sixty dayswhether the auctioneer diligently discharged his duties in exercising his discretion 42 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL Civil Practice and Procedure - damages - mesne profits-where the second respondent sought the appellant be condemned to pay mesne profits to him for the occupation of the suit property-where the suit property was registered under the second respondent’s name-whether the second was entitled to the rent for the period of occupation The appellant had applied for two loans consecutively from the Rural Urban Credit Finance. The first advance of Kshs. 200,000/= was secured by a charge upon the appellant’s property (Number Nairobi/Block 74/91), while the second advance of Kshs. 60,000/= was secured through a chattels mortgage of the appellant’s motor vehicle. However in the course of events, Rural Urban Credit Finance was placed under receivership and confusion took charge of the events such that some members of staff and loan defaulters accessed the securities and several of them were stolen. Nonetheless, after complying with the legal requirements, the first respondent proceeded to sell the suit property to the second respondent through a public auction at a price of Kshs. 420,000/=, which amount was paid to the auctioneers four days after the auction and the second respondent had the property registered in his name. The appellant filed a suit against both the first and the second respondent for the recovery of the suit property which as a matter of fact had already exchanged hands. The appellant continued to live in the property despite demands by the second respondent that he vacates the property. During the hearing of the suit, the appellant claimed that the entire outstanding loan was fully repaid. He produced the title deed to which it was charged to secure the loan as evidence of repayment and that it was released to him through an authorization letter purportedly signed by him acknowledging the receipt of the title deed. The first respondent dismissed the allegations contending that not a single cent of the entire loan was repaid, and that the appellant had acquired the title deed through dubious means. The second respondent urged the court to dismiss the suit and sought orders against the appellant for eviction from the suit property and for the payment of mesne profits. After a full hearing the trial court dismissed the suit with costs, and further ordered the appellant to pay mesne profits to the second respondent by way of interest at 12% per annum on the sum of Kshs. 420,000/= until such time the appellant would vacate the suit property. The appellant was dissatisfied with the judgment and filed an appeal on several grounds that the trial court erred in holding that there was clear evidence of the amount of money advanced to the appellant and which had not been fully repaid; that the first respondent was not entitled to sell the suit property by public auction; that the suit property was lawfully and properly registered in the name of the second respondent and that the discretion exercised was unjudicial and based on wrong mathematical principle when dealing with the issue of mesne profits. Held: 1. The authorization letter issued to the appellant to acknowledge receipt of the Land Certificate was not a proper legal document since the person who purported to have signed it, as a witness denied having appended his signature to it and therefore this would support the contention that the title deed did not get into the appellant’s hands through proper legal channels. 2. The first respondent was entitled to take the necessary procedures to sell the securities since there was no evidence of the loans having been fully repaid by the appellant. Statutory notice was issued to the appellant of the intention to sell the securities. 3. Regarding whether the statutory notice was valid or not, it was clear from the High Court’s record that the issues relating to the validity of the statutory notice was neither pleaded nor canvassed, and the courts would normally base their decisions only on the issues pleaded. 4. Even if the Court of Appeal decided to entertain the issue of validity of the statutory notice and found that the notice was not valid, still nothing would turn on that because, by the time the matter went for hearing in the superior court, the suit property had long been registered in the name of the second respondent pursuant to a public auction properly carried out by the auctioneers as found by the trial court. As at the time the auction proceeded, there was no injunction order existing against the sale. That meant that as far as the suit land was concerned, the appellant’s equity of redemption had long been extinguished. 5. Although the appellant’s equity of redemption was extinguished, all he could possibly pursue was a remedy in damages. However, although in the amended plaint there was a prayer for general damages, there was no attempt made to canvass that aspect as an alternative issue at the trial of the suit. 6. Regarding whether the public auction was proper, the auctioneer in exercising his discretion acted on the interest of all the parties involved by accepting full payment of the purchase price in lateness of four days instead of insisting on 25% down payment at the fall of the hammer and the balance to be paid within sixty (60) days. 7. The second respondent was entitled to compensation in respect of the period the appellant remained on the suit property after it was transferred to the second respondent. There was no evidence that the appellant paid him any rent and during the said period. Appeal dismissed with costs to both respondents. Issue 12: April-June 2010 43
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Bench Bulletin - Issue 12 - Kenya Law Reports

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