Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN DIGEST OF CASES FEATURED COURT OF APPEAL CHARGE Framing of a charge – duplicity in framing of charge – appellant claiming that the addition of the particulars relating to the wounding of the complainant in the robbery charge made it duplicitous – charge failing to include the words dangerous” and “offensive” to describe the weapons the robbers were armed with – effect of – whether the inclusion of one or more of the alternative modes of bringing a robbery charge made it duplicitous David Njuguna Wairimu v David Njuguna Wairimu ..................................................................................................................... 37 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 days-whether the auctioneer diligently discharged his duties in exercising his discretion Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42 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 Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42 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 Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42 Judicial review - leave - application for leave to file for judicial review orders-whether the application for leave to apply for judicial review orders was within the statutory time-whether application for leave for judicial review orders would operate as stay-where the superior court ordered that the leave for judicial review application operate as stay-validity of application-Law Reform Act (cap 26) section 9 (3); Public Procurement and Disposal Act (Act No. 3 of 2005) section 100 (1); Interpretation and General Provisions Act (cap 2) section 57; Judicature Act (cap 8) section 10 Kenya Power and Lightning Company v NMG Company & 3 Others (Interested Parties) .......................................................39 Stay - application for stay of proceedings and orders of the High Court pending hearing and determination of the intended appeal-whether the applicant demonstrated that the intended appeal was arguable and that it would be rendered nugatory unless a stay was granted-validity of application-Court of Appeal Rules rule 5 (2) (b) Kenya Power and Lightning Company v NMG Company & 3 Others (Interested Parties) ...................................................... 39 Stay – stay in cases of appeal – stay of recovery of costs awarded to the respondent – appeal against conditional stay granted – delay in filing appeal – application to strike out – grounds that the appeal had been filed out of time and without leave of the court – certificate of delay having been issued by the deputy registrar – claims that the certificate of delay was not proper and could not be relied upon to explain the delay period – court considerations – whether the cases warranted striking out. Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd ............................................................38 Stay of execution – application for stay of execution of a judgment and decree by the High Court – application grounded under sections 3A & 3B of the Appellate Jurisdiction Act – applicant having disobeyed an earlier order by the High Court to deposit security in an interest earning account – overriding objective of the Appellate Jurisdiction Act- whether the applicant could rely on the overriding objective having failed to comply with the High Court’s ruling – notice of appeal relating to the main judgment and not the High Court’s ruling - whether applicant could rely on the overriding objective provisions having disobeyed the High Court’s ruling – whether non-compliance with the High Court ruling had a bearing on the application before the appellate court – Rule 5 (2) (b) Court of Appeal Rules and sections 3A & 3B of the Appellate Jurisdiction Act Hunker Trading Company Ltd v Elf Oil Kenya Ltd........................................................................................................................55 Taxation – appeal – appeal against dismissal of an application for taxation by third party – power to order advocate to deliver cash account – delay in filing appeal – application to strike out – grounds that the appellant had no right of appeal – claims that the was no leave to appeal obtained – certificate of delay having been issued by the deputy registrar - computation of time within which the appeal should have been filed – whether the certificate of delay could be relied on – whether leave was required to file appeals from the decisions on originating summons. Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd ............................................................38 4 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN DIGEST OF CASES FEATURED CONSTITUTIONAL LAW Constitutional right - allegation of violation of constitutional right-alleged violation being pleaded as an afterthought - effect of. Dennis Muthee Chokera v Republic ................................................................................................................................................. 35 Constitutional right – violation of appellant’s right to be presented to the court upon arrest within 14 days of such arrest – appellant having been brought to court after the prescribed period of 14 days – where the appellant had failed to raise that issue both at his trial and in his first appeal – language - failure to interpret the language of the court – appellant claiming that the court record was not clear whether proceedings were interpreted to the appellant – remedy for breach of constitutional rights – whether a doubt was created as to the appellant’s understanding of the proceedings – whether he was precluded from raising a constitutional issue at any other stage of the proceedings – Constitution section 72(3) and 77(2) David Njuguna Wairimu v David Njuguna Wairimu ..................................................................................................................... 37 Fundamental rights - rights of an accused person - right to a fair trial - right to be brought to court within a reasonable time-appellant being charged with murder - appellant having been arrested on February 7, 2007 and was taken to Court on February 9, 2007 James Karoki Wangeci v Republic ................................................................................................................................................... 47 CRIMINAL LAW - confessions-accused confessing to the offence during inquiry-statement under inquiry admitted after trial within a trial-effect of. Jackson Kyalo Munge v Republic ..................................................................................................................................................... 42 CRIMINAL PRACTICE AND PROCEDURE Appeal – appellant charged for the offence of defilement and an alternative charge of indecent assault of a female – conviction on alternative charge -appeal against conviction on the alternative count and sentence for 10 years imprisonment – appeal on grounds that the main charge having been struck out an alternative charge could not be sustained-whether evidence on record could sustain the offence of defilement - whether the conviction and sentencing was proper – section 144 and 145 (1) of the Penal Code M.B.O v Republic ................................................................................................................................................................................ 42 Appeal – first and final appeal – duty as the first appellate court to reassess and re-evaluate such evidence and to reach its own independent conclusion – appeal against conviction and death sentence for the offence of murder – main ground that the case against the appellant was not proved beyond reasonable doubt – claims of contradictory evidence – whether the prosecution had proved its case beyond reasonable doubt – Penal Code (Cap 63) section 203 as read with section 204 Josiah Afuna Angulu v Republic ....................................................................................................................................................... 44 Appeal – second appeal – appeal against conviction and sentence for the offence of robbery with violence – grounds that the superior court failed to consider the defence – duty of the first appellate court – circumstances under which a superior court could rehash the conclusion of a lower court – whether this was objectionable – Penal Code section 296 (2) (Cap 63) David Njuguna Wairimu v David Njuguna Wairimu ..................................................................................................................... 37 Appeal – second appeal - matters confined to a second appeal - appellant having been charged with the attempted defilement of a minor – where the first appeal to the superior court of records was dismissed – claims that the appellant’s defence was not considered – whether the evidence adduced was sufficient to sustain the conviction James Karoki Wangeci v Republic ................................................................................................................................................... 47 Appeal - second appeal against conviction and sentence - the appellant was convicted on counts of defilement and child trafficking-where the appellant’s acquittal on the count of defilement was reversed to a conviction-whether the superior court had jurisdiction to reverse the trial court’s finding of not guilty to guilty-whether the evidence adduced was sufficient to secure conviction on both counts-whether the appeal had merit-Penal Code sections 260, 261; Sexual Offences Act sections 8 (3), 18 (1) (2); Criminal Procedure Code section 215; United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Article 3 (a) Kenneth Kiplangat Rono v Republic ............................................................................................................................................... 45 Charge – reduction of charge - charge sheet having been changed from reading “defilement of a minor” to reading “attempted defilement of a minor” – whether this would prejudice the appellant – claims that the language of the court was not stated when the charge was change and there was no interpretation – compliance with section 214 of the Criminal Procedure Code (Cap 75) – court record showing that the appellant pleaded not guilty when the alternate charge was read to him – effect of - Criminal Procedure Code section 214 James Karoki Wangeci v Republic Criminal Appeal 146 of 2008 ..................................................................................................47 Issue 12: April-June 2010 5
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