East African Court of Appeal - 1962

Criminal law-Insanity—Burden of proof-Accused found guilty but insane- Reliance on accused's own evidence as to insanity—Misdirection—No power to order new trial-Criminal Procedure Code (Cap. 20), s. 210A, s. 228 and s. 329 (T.). 
 

Criminal law-Evidence—Child—Unsworn evidence-Corroboration—Nature of corroboration required—Whether corroboration required must be corroboration implicating the accused—Criminal Procedure Code (Cap. 20), s. 152 (3) (T.) -Children and Young Persons Act, 1933, s. 38 (1)—Oaths and Statutory Declarations Ordinance (Cap. 15), s. 19 (1) (K.). 
 

Mohamedan law-Wakf-Income of wakf property to adopted daughters and then successive interests created-Final gift over to charitable purposes- Descendants of adopted children not kindred of maker-Whether wakf saved by Wakf Commissioners Ordinance, 1951, s. 4 (K.)—Civil Procedure Ordinance (Cap. 5), s. 44 (K.)—Indian Transfer of Property Act, 1882. 
 

Jurisdiction—Appointment of paramount chief—Referendum calling for abolition of chief-Subsequent extinguishment of chief and chiefdom by Governor's order-Claim for compensation—Whether court has jurisdiction to hear suit-African Chiefs Ordinance (Cap. 331), s. 3, s. 4, s. 6 to s. 21, s. 22 and s. 27 (T.)-African Chiefs (Chiefdom) (Amendment) (No. 2) Order, 1960, (Government Notice 135 of 1960), para. 2 (T.)—Local Government Ordinance (Cap. 335), (T)-Native Authority Ordinance, s. 2 (T.).

Criminal law-Burden of proof—Alibi—Misdirection—Penal Code, s. 265 and s. 284 (T.). 

Limitation of action—Appeal—Application for leave to appeal out of time– Period for filing appeal prescribed by Local Government (Rating) Ordinance (Cap. 317)-Whether Indian Limitation Act, 1908, s. 5 can be invoked- Local Government (Rating) Ordinance (Cap. 317), s. 10 and s. 11 (T.)—Indian Limitation Act, 1908, s. 3, s. 5 and s. 29—Indian Code of Civil Procedure, 1908, s. 151. 
Rates Appeal—Application to admit appeal out of time—Period for filing appeal prescribed by Local Government (Rating) Ordinance (Cap. 317)—Whether Indian Limitation Act, 1908, s. 5 can be invoked-Local Government (Rating) Ordinance (Cap. 317), s. 10 and s. 11 (T.)—Indian Limitation Act, 1908, s. 3, s. 5 and s. 29—Indian Code of Civil Procedure, 1908, s. 151. 
 

Sale of goods-Coffee-Coffee Ordinance—Sale of Coffee to board under the Coffee Ordinance-Grader's certificate certifying weight and grade of coffee in Uganda—Consignment railed to Mombasa—Weight in Mombasa less than that stated in certificate-Loss of weight possibly due to evaporation of water-Deduction in price made for short weight-Deductions made by virtue of rules made under the Ordinance-Claim that rules are ultra vires -Coffee Industry Ordinance, 1953, s. 43 (U.)—Coffee Ordinance, 1959, s. 45 (c), s. 64 (U.)—Sale of Goods Ordinance (Cap. 214), (U.)—Coffee Industry Rules, 1953, r. 23 (U.)—Coffee (Grading and Export) Rules, 1959, r. 6, r. 7 and r. 8 (U.). 
 

Insurance Arbitration clause-Claim by insured arising from loss by fire— Refusal by insurance company to admit liability but request to refer quantum to arbitration—Action filed by insured—Whether company's action amounted to a denial of liability—Whether arbitrators award condition precedent to action "Safe and Books” clause warranty—Whether claim supported by sufficient details. 
 

Criminal law-Plea- Recording of- Use of word "guilty" in recording plea— Necessity for record to show that accused spoke in English. 
 

Divorce—Maintenance—Lump sum paid by husband to wife—Contemporaneous undertaking by wife not to claim alimony and maintenance-Application by wife for maintenance—Whether mode of expenditure of lump sum relevant. 
 

Building control-Municipalities-Building Building restrictions- Unauthorised use of building—Allowing building to be used otherwise than for purpose for which constructed-Ground floor of building erected as shops and stores and let as such-Stores used as dwelling-houses by tenants-Tenants notified by building C owner to cease using stores as living quarters—Tenants continue using stores as dwelling-houses—Building owner charged for allowing unauthorised user —Misdirection—Nairobi Municipality (Building) By-laws, 1948, By-law 352 (a) (K.). 
 

Street traffic-Evidence—Mechanically propelled vehicle—Causing death by dangerous driving—Evidence of mechanical defect in steering mechanism of vehicle-Accused under the influence of drink-Defence that the accident was caused by mechanical defect-Whether onus of proof shifts to the defence-Traffic Ordinance, 1953, s. 43 and s. 44 (K.). 
Criminal law-Practice-Mechanically propelled vehicle-Whether indictment should contain both charge of causing death by dangerous driving and charge I of driving under the influence of drink. 
 

Criminal law-Possession of property suspected of having been stolen—Accused detained in connection with housebreaking and stealing—Accused searched by village headman—Accused then taken to local court where again searched -Goods suspected of having been stolen found in possession of a second accused-Both accused then taken to police station where arrested-Both accused convicted of housebreaking, stealing and of being in possession of property suspected of having been stolen-Penal Code, s. 312 (T.)—Criminal Procedure Code (Cap. 20), s. 24 and s. 187 (1) (T.). 
 

Criminal law-Practice—Revision—Alleged theft of property in Uganda—Property seized by police from a third party in Kenya—No offence committed in Kenya —Order by magistrate restoring property to lawful owners—Whether magistrate has power to make such an order—Criminal Procedure Code (Cap. 27), s. 121 (3) (K.)—Penal Code (Cap. 24), s. 2 and s. 327 (K.)—Police Ordinance, 1960, s. 20 (1) (K.)—Sale of Goods Ordinance (Cap. 290), s. 25 (K.). 

Criminal law-Security for maintaining good behaviour—Bond for maintaining good behaviour and in default forfeiture signed by accused-Subsequent complaint against accused of being drunk and abusive in a public place— Complaint found to be true after trial—Order for forfeiture of first bond and H execution of another-Whether power to require execution of second bond -Criminal Procedure Code (Cap. 27), s. 47 and s. 53 (K.). 
 

Criminal law, Illegal movement of stock. Particulars of charge 
alleging movement "from place to place.” Whether omission to give particulars of movement fatal to conviction—Animal Diseases Ordinance (Cap. 213) s. 5, (K.)—Criminal Procedure Code (Cap. 27), s. 381 (K.). 
 

Practice-Transfer of suit-Application to transfer suit from district court to High Court-Combined amount of claim and counterclaim exceeding pecuniary jurisdiction of district court—Whether suit should be transferred to High Court-Indian Civil Procedure Rules, O. VIII, r. 6 (1)—Civil Procedure Rules, O. 8, r. 8 (U.). 

Practice-Application for particulars-Claim for damages for negligence- Defendant denying negligence and pleading inevitable accident-Whether particulars of inevitable accident should be ordered—Civil Procedure (Revised) Rules, 1948, O. VI, r. 3 (K.).

Bona vacantia-Intestacy—Deceased without widow or kindred—Deceased a British protected person-Neither Crown nor Zanzibar government entitled under law of succession—Administrator-General's Decree (Cap. 23), s. 25 (Z.) -Succession Decree (Cap. 21), s. 26 and s. 50 (Z.)—Zanzibar Order-in-Council, 1924, art. 24 (Z.). 
 

Limitation of action—Administration of estates-Action for accounts and repayment of losses-Waste-Action filed over three years after order for filing accounts-What period of limitation applies-Time from which limitation runs-Succession Decree (Cap. 13), s. 272 (1), s. 321 and s. 322 (Z.)— Limitation Decree (Cap. 11), Schedule, art. 29, art. 116 and art. 119 (Z.)— Civil Procedure Rules, O. XXI, r. 13 (Z.)—Indian Limitation Act, 1908, Schedule, art. 120 and art. 123. 
 

Rent restriction—Proceedings instituted in High Court-Claim for vacant possession in area for which Rent Restriction Board was established—Proceedings to be brought in court only if leave is granted by Rent Restriction Board. No such leave granted—Whether High Court has jurisdiction—Rent Restriction Act, 1962, s. 2, s. 7, s. 19, and s. 33 (T.)—Interpretation and General Clauses Ordinance (Cap. 1), s. 10 (2) (e) (T.). 
Jurisdiction—Suit instituted in High Court prior to commencement of Rent Restriction Act—Rent Restriction Act depriving High Court of jurisdiction in cases coming within the Act—Whether jurisdiction of High Court preserved in relation to existing suits—Interpretation and General Clauses Ordinance (Cap. 1), s. 10 (2) (e) (T.). 
Statute-Interpretation-Retrospective operation-Existing rights-Effect on pending proceedings in High Court—Interpretation and General Clauses Ordinance (Cap. 1), s. 10 (2) (e) (T.)—Rent Restriction Act, 1962, s. 33 (T). 
 

Jurisdiction—Action—Claim by principal against agent for money due under a contract-Contract originally intended to be completed in Kenya—Completion in Kenya becoming impossible through act of principal—Subsequent agreement H that completion should be in Uganda—Whether court has jurisdiction to entertain suit—Civil Procedure Ordinance, s. 15, Explanation (3) (U.). 
 

Divorce-Custody and access—Custody of children to mother-Husband to have reasonable access-Subsequent application by husband for access—Application that children be allowed to visit husband during school holidays- C Whether order can be made-Meaning of "access”—Matrimonial Causes Rules, r. 54 (T.). 
 

Criminal law-Charge-Duplicity—Wrongfully attempting to interfere with or influence witnesses in judicial proceedings-Whether charge duplex-Test of duplicity a failure of justice or prejudice to the accused-Penal Code (Cap. 24), s. 121 (1)·(ƒ) (K.)-Criminal Procedure Code (Cap. 27), s. 137 (b) (i) (K.). 
 

Agent-Contract-Ratification-Negotiations for lease by agent-Stipulation that ratification of principal required-Possession of premises given before duration of lease agreed—Draft lease for three years submitted to lessees— Counter proposal for different period by lessees-Subsequent ratification by principal of three years' term- Ratification not communicated to lessors— Whether contract concluded. 
Practice Appeal—New point taken on appeal—Inconsistent with case at trial— Surprise-Discretion of appellate court to allow point to be argued-Evidence on point taken inconclusive—Whether appellate court should allow new point to be taken. 
 

Appeal Practice - Application for extension of time for lodging appeal Affidavit in support-No statement in affidavit showing merits of appeal— Due diligence in other respects shown by applicant-Whether application competent-Eastern African Court of Appeal Rules, 1954, r. 9 (1), r. 19 (6) and r. 58. 
 

Criminal law-Trial-Witness called by court-Right of court to call witnesses after defence case closed-Limitation upon exercise of right—Witnesses called to establish a certain fact—Another recalled to clear up doubts on evidence—Whether course adopted by court irregular-Penal Code (Cap. 16), s. 265 and s. 271 (T.)—Criminal Procedure Code (Cap. 20), s. 151 and s. 346 (T.)—Criminal Procedure Code (Amendment) Ordinance, 1960 (T.). 
 

Criminal law-Murder—Common intention-Two assailants—Each strikes the deceased a blow—Blows struck one after the other-Insufficient evidence to establish which blow caused death—Whether finding of common intention justified Whether the second assailant aider and abettor of the first-Penal Code, s. 22 and s. 228 (U.)—Criminal Procedure Code, s. 180 (U.)—Eastern African Court of Appeal Rules, 1954, r. 41—Appellate Jurisdiction Act, 1962, s. 4 (3) (U.).

Criminal law-Sentence-Conviction of unlawful possession of stock in pro- claimed district-Recovery of fine-Statutory authority for recovery of fine imposed for theft by distress on accused's family and sub-tribe-Distress to issue if fine not paid by accused-Conviction of unlawful possession of stock in proclaimed district—Whether order lawful for levy of distress on accused's family and sub-tribe if fine not paid—Stock and Produce Theft Ordinance (Cap. 206), s. 3, s. 4 and s. 10 (1) (K.). 
 

Criminal law-Theft by conversion—Accused a bankrupt-Official Receiver trustee of accused's property—Income of property collected and outgoings paid by accused-Balance deposited in safe of third party-No concealment of collection of rent or payment of outgoings—Balance of income over expenditure handed over with complete account-Whether fraudulent intention established. 
 

 Street traffic-Dangerous driving-Accused approaching pedestrian crossing at speed on outside lane—Another vehicle on inside lane stopped at crossing— Pedestrian crossing from left-Pedestrian knocked down by vehicle on outside lane-View of crossing on left obscured by other stationary vehicle- Whether negligence constitutes dangerous driving-Traffic Ordinance, 1953, s. 44 (a) (K.). 
Criminal law-Sentence-Dangerous driving—Accused sentenced to imprisonment without option of fine—Imprisonment ordered so that the accused could not buy her way out of the consequences of her act-Whether proper consideration in assessing sentence. 
 

Audience—Revision—African court-Consideration by High Court of proceedings in African court-Whether Director of Public Prosecutions has right of audience in revisionary proceedings—African Courts Ordinance, 1957 (U.)— Constitution of Uganda, s. 68 (U.)—Uganda (Constitution) Order-in-Council, 1962 (U.)—Foreign Jurisdiction Act, 1890

Fatal accident-Damages-Assessment-Contributory negligence claim by widow for death of husband-Husband's contributory negligence—Whether damages reduced by contributory negligence—Apportionment between widow and children. 
 

Rent restriction—Statutory tenancy-Standard rent-Permitted increases of rent-Whether increase can be claimed without prior demand or notice— Rent Restriction Ordinance (Cap. 115), s. 3 and s. 11 (U.). 
 

Street traffic-Defective vehicle—Brakes, steering and mechanical condition defective-Vehicle used on road-Owner charged with permitting vehicle to be driven whilst defective—Mens rea-Whether knowledge that vehicle defective must be proved-Meaning of word "permit”—Traffic Ordinance (Cap. 168), s. 43 (a) and (d), s. 70 (T.)—Traffic Rules, r. 49 and r. 69 (T.)— Motor Vehicles (Construction and Use) Regulations, 1951, reg. 101– Traffic Ordinance, 1953, s. 103 (5) (K.)-Transport Licensing Ordinance (Cap. 237), s. 24 (K.).

Customs-Import duty-Date when duty to be calculated—Arrival of rice in Kenya for transit to Uganda—Goods then subject to suspended duty in Uganda—Order made before goods enter Uganda imposing duty—Whether duty payable on goods entering Uganda—Material date for calculation of duty in territory of ultimate destination-East African Customs Manage- ment Act, 1952, s. 2, s. 16, s. 29, s. 82, s. 97 and s. 104 (1)—East Africa (High Commission) Order-in-Council, 1947, Third Schedule, s. 28, Item 3- Interpretation Act (Cap. 1), s. 2—East African Customs Regulations, 1954, reg. 42—Customs Tariff Ordinance, 1958, s. 1 and s. 3 (U.)—Interpretation and General Clauses Ordinance (Cap. 1), s. 2 (U.)—Eastern African Court of Appeal Rules, 1954, r. 65. 
 

Mortgage-Mortgage not signed by mortgagee-No positive covenants by mortgagee Mortgage registered—Validity of mortgage-Whether absence of mortgagee's signature a matter of substance-Registration of Titles Ordinance (Cap. 123), s. 114, s. 156 and s. 209 (1) (U.). 
 

Costs—Interest—Whether interest on costs payable without specific order—Indian Code of Civil Procedure, 1908, s. 34 and s. 35—Civil Proceedings (Interest on Judgment Debts) Rules, 1956, r. 1, r. 2, r. 3 (T.)—Civil Procedure Ordinance (Cap. 5), s. 26 and s. 27 (K.). 

Practice-Parties—Substitution—Application to dismiss sole defendant from suit and substitute another defendant—Whether application competent—Indian Civil Procedure Rules, O. I, r. 10 (2). 
Practice-Third-party notice-Application for third-party notice as alternative prayer-No local rule authorising issue of third-party notice-Whether court has power to grant application—Judicature and Application of Laws Ordinance, 1961, s. 2 (2) (T.)—Tanganyika Order-in-Council, 1920, art. 17 (2) (T.)— Rules of the Supreme Court, O. XVI, r. 48 to r. 55. 

Criminal law—Attempt—Larceny—Entering unlocked motor car—Car empty— Nothing to steal-Charge of attempted stealing—Whether the accused's conduct was an overt act sufficiently proximate to constitute an attempt to steal—Penal Code (Cap. 16), s. 265, s. 269 (c), s. 380 and s. 381 (T.)—Penal Code (Cap. 24), s. 389 (K.). 
 

Damages-Joint tortfeasors-Assessment-Separate award of damages against each tortfeasor-Whether separate awards made on wrong principle—Proper court to assess damages-Law Reform (Miscellaneous Provisions) Ordinance, 1956, Part III (K.)—Law Reform (Married Women and Tortfeasors) Act, 1935, Part II. 

Criminal law—Practice—Trial—No witnesses present-Charge dismissed— Fresh charge later brought in same terms—Whether dismissal of charge is a bar to subsequent prosecution for same offence-Penal Code (Cap. 24), s. 202 and s. 307 (a) (K.). 
 

Criminal law-Murder-Circumstantial evidence-Deceased found dead after raid by gang-No direct identification of any accused—All accused found in possession of articles stolen during raid—Whether inference of theft can be drawn so as to support charge of murder-Whether deceased killed by gang -Common intent-Penal Code (Cap. 16), s. 3 (T.).

Certiorari-Limitation—Application to quash conviction and sentence-Leave to apply sought and granted after six months from conviction—Period of limitation six months—Whether court should exercise discretion and grant application-Law Reform (Miscellaneous Provisions) Ordinance, 1956, s. 9 (K.)—Civil Procedure (Revised) Rules, 1948, O. LIII, r. 1 (K.)

Criminal law-Molestation—Dissuasion or attempted dissuasion of a person from dealing with complainant's shop-Whether apprehension of violence necessary to cause alarm─Meaning of “alarm"-Penal Code (Cap. 24), s. 239 (K.). 

Execution—Attachment-Warrant of attachment addressed to limited company— Company not an authorised court broker—Director of the company a broker -Warrant of attachment served on director—Attachment levied by director personally-Whether levying of attachment unlawful-Civil Procedure (Revised) Rules, 1948, O. XXI, r. 20 (2) (K.)—Rules of Court Part X, r. 3 (K.). 
 

Criminal law-Charge—Failure to comply with requirements of police supervision order-Ingredients of offence—Whether failure by accused to show court that he had tried his best to act in conformity with law an essential ingredient of offence—Criminal Procedure Code (Cap. 20), s. 309 (1) (a), s. 310 (T.)— F Penal Code, s. 312 (T.). 
 

Practice-Appeal-Leave to appeal—Privy Council—Action dismissed on preliminary objection—Decision reversed on appeal—Interlocutory or final judgment Eastern African (Appeal to Privy Council) Order-in-Council, 1951, s. 2 and s. 3. 
 

Criminal law-Arraignment of accused-Practice-Charge of possession of property suspected of having been stolen or unlawfully obtained-Whether failure by accused to account satisfactorily to court for his possession is an essential ingredient of offence—Procedure to be adopted on taking plea— Criminal Procedure Code (Cap. 20), s. 24, s. 203 (1) and s. 206 (T.)—Penal Code (Cap. 16), s. 312 (T.). 
 

Criminal law-Conveying property suspected of having been stolen—Police trap set for accused at shop—Property brought to shop for sale—Accused arrested inside shop-Whether accused detained in course of journey-Penal Code (Cap. 16), s. 312 (T.)—Criminal Procedure Code (Cap. 20), s. 24 (T.)—Metropolitan Police Act, 1839, s. 66. 
Criminal law-Sentence-Order for police supervision—Conviction for conveying property suspected of having been stolen-Offence punishable by two years' imprisonment-Whether order lawful-Penal Code (Cap. 16), s. 312 (T.)— Criminal Procedure Code (Cap. 20), s. 308 (T.).