Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT Change of Presiding Officer in the Course of Trial Joseph Mwangi Esop v Republic Criminal Appeal 107 of 2008 25 th January 2010 M.S.A Makhandia, J. High Court at Nyeri Reporter by Monica Achode Case History Appeal from the original conviction and sentence of the Senior Resident Magistrate’s Court at Karatina in SRMCR.992 of 2006 by L. MBUGUA - SRM Criminal Law-rape-appeal against a charge of rape-alternative charge of indecent assault-where three days had lapsed before the incident was reported-appeal on grounds that the appellant had been charged with a non-existent provision of the laws-where the Sexual Offences Act (No. 3 of 2006) had already come into law at the time-Penal Code (Cap 63) section 140 Criminal Practice and Procedure-trial- trial conducted by two magistrates in succession – right of an accused person to have the case start afresh in such circumstances - accused person having asked the succeeding magistrate that the trial of the case should start afresh – request having been denied – whether the trial court had misdirected itself – Criminal Procedure Coe (Cap. 75) section 200(3) The appellant brought an appeal against the decision of the lower court convicting him on a charge of rape. Amongst the grounds for appeal were that the appellant had been convicted on a non-existent provision of law. At the time of his arrest and charging the Sexual Offences Act (No. 3 of 2006) had already come into force yet he had been charged under the Penal Code (Cap 63) section 140 (now repealed). The appellant also claimed that the magistrate’s court had misdirected itself in failing to follow section 200 of the Criminal Procedure Act (Cap 75) which provided that where a succeeding magistrate commenced the hearing of proceedings and part of the evidence had been recorded by his predecessor, the accused person could demand that any witness be re-summoned and reheard and the succeeding magistrate was bound to inform the accused person of that right. Held: 1. The appellant was convicted on a non-existent provision of the law and offence. At the time the appellant was charged, the Sexual Offences Act had come into force thereby repealing the offence of rape as defined under section 140 of the Penal Code. The Sexual Offences Act had come into force on July 21, 2006 yet the appellant was alleged to have committed the offence on October 9, 2006. He could therefore only have been charged under the Sexual Offences Act and not the Penal Code. 2. The fact that the trial was presided over by two magistrates entitled the appellant to demand to have the case start de novo. In overruling that request the trial court grossly misdirected itself and misapprehended section 200(3) of the Criminal Procedure Code which were couched in mandatory terms. The trial court ought to have acceded to and acted upon the demand by the appellant to have the case commence de novo. In the premise, the appellant was unfairly tried. Appeal allowed, conviction quashed and appellant set free. Advocate Mr. Makura learned Senior Sate Counsel Period of Limitation in Contracts of Carriage by Air Farida Abdullahi Ibrahim & 2 Others v Gulf Air Limited [2010] Eklr Civil Appeal 95 of 2002 R. N. Sitati High Court at Nairobi January 22nd, 2010 Reporter by Monica Achode Case History An Appeal from the ruling of the Senior Principal Magistrate, Mr. C.O. Kanyangi delivered on June 13, 2002 in Nairobi CMCC No. E J 406 of 2001, Farida Abdukahi Ibrahim, Asnah Abudllahi, Ibrahim and Nagma Abudllahi Ibrahim. 76
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT Contract - carriage by air- period of limitation in such contracts- appeal against the decision of the trial court declaring that the suit had been time barred and not based on contract-suit by air passenger against an airline operator - defendant refusing to allow the appellant access onto a connecting flight due to appellant’s lack of valid travelling documents- time within which the cause of action ought to have been brought -period of limitation being two years– interpretation of Article 29(2) of the Warsaw Convention-whether this was a special contract to which the Law of Contract did not apply - whether the suit was time barred-Carriage by Air Act (2 of 1993) - Civil Procedure Act (Cap 21) Section 3A- Civil Procedure Rules Order 6 Rule 13(1)(a -Warsaw Convention on Carriage by Air, Article 29 of the as amended by The Hague Protocol, (1995) The appellants/plaintiffs brought an appeal against the decision of a magistrate’s court striking out their suit for damages against the respondent/defendant, an airline operator. The appellants commenced the action by filing a plaint on June 14 th 2001. The claim had The Hon. Lady Justice R. N. Sitati arisen out of the respondent’s refusal to allow the appellants access onto a connecting flight in Abu Dhabi on or about December 20 th 1998. In doing so, the appellants averred, that the respondent left the three minor appellants stranded at a transit toll in Abu Dhabi Airport where they spent three days out in the cold. The appellants further claimed that in the ensuing confusion their luggage worth Kshs 72,000/= was also lost and/or misplaced by the respondent. The respondent on its part claimed that it had been unable to perform its part of the contract on grounds that the plaintiffs did not possess valid travel documents to enable them enter Germany. It was their claim that the suit did not lie against them as it had been extinguished by the provisions of the Carriage by Air Act (2 of 1993) and sought to have it struck out. It further claimed that the cause of action was time barred by the express provisions of the Act. The defendant’s application to strike out was based on the contention that the cause of action arose on December 21, 1998 and the suit, which had been filed in June 14 th 2001, ought to have been filed within two years reckoned from that date. As regards the appellants’ alleged lost luggage, the respondent averred that the said luggage had only been misplaced and that when the luggage was eventually found, it was forwarded to the appellants on December 30, 1998. The respondent claimed that the appellants accepted the same and acknowledged such receipt in writing. The respondents denied that they were in breach of the contract of carriage. In its ruling striking out the suit the trial court found that the action had been brought after the two year period allowed under the Carriage by Air Act, having been filed six months after the period had expired. The trial court found that it had been improperly placed before the court. The issues before the superior court were whether there had indeed been a contract of carriage by air between the appellants and the respondents and if so, whether it had been breached; whether it was a special contract to which the law of contract did not apply; and whether indeed the suit had been time barred. Held: 1. As per section 7(1) of the Carriage by Air Act no action against a carrier’s servant or agent which arose out of damage to which the Warsaw Convention on Carriage by Air Convention related would, if he was acting within the scope of his employment, be brought after more than two years, reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. 2. Under Article 29 of the Warsaw Convention on Carriage by Air the suit ought to have been filed on or before December 21, 2000 but was not filed until June 14, 2001, six months outside of the statutory period and without leave of court. The carriage stopped on December 21, 1998. Therefore the suit was filed out of time. 3. Any claims relating to the periods prior to the cause of action which was more than two years before the lodging of the counter claim and set off were extinguished by virtue of Article 29 of the Convention. Appeal dismissed. Advocates: M/s Nyakianga for the Plaintiff/Applicant Mr. Wasonga for the Defendant/Respondent Issue 12: April-June 2010 77
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