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Citation
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Judgment date
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| December 1979 |
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A district court in revision lacks power to replace a subordinate court’s acquittal with a conviction and sentence.
Criminal procedure — Revision vs appeal — Whether a district court sitting in revision may quash an acquittal and substitute a conviction and sentence; interpretation of s.18(2) Magistrates' Courts Act, 1963.
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28 December 1979 |
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Appeal upholds rape convictions, quashes improper indecent-assault conviction, corrects illegal sentences and confirms corporal punishment.
Criminal law – Rape – Identification and medical evidence supporting non-consensual intercourse; Participation under s.22(b) – presence and approval of offence – appropriate conviction; Criminal Procedure – subordinate court’s sentencing jurisdiction – illegality of exceeding statutory maximum; Appellate powers to substitute conviction limited where prosecution has not appealed; Corporal punishment – retention and imposition where statutory.
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26 December 1979 |
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Convictions for conversion upheld; consecutive sentences quashed and substituted with a concurrent four‑year term.
Criminal law — conversion of public revenue; evidence and credibility of accused's after‑the‑fact explanation; sentencing — concurrent versus consecutive sentences for offences forming a series; exceptional circumstances required to order consecutive terms.
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26 December 1979 |
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Accused found to have killed her infant but acquitted by reason of insanity and committed as a criminal lunatic.
* Criminal law – Murder – Circumstantial evidence establishing the actus reus where accused and deceased alone together.
* Criminal law – Insanity defence – special finding that accused was of unsound mind at time of offence; acquittal by reason of insanity.
* Procedure – Section 168(1) and (2)(a) Criminal Procedure Code – certification to the Minister and custodial detention as a criminal lunatic.
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26 December 1979 |
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Convictions quashed where prosecution failed to call material witnesses and prove omissions were attributable to the accused.
Criminal law – Stealing by public servant; Fraudulent false accounting – Burden of proof; Failure to call material witnesses – Effect on safety of conviction; Administrative omissions cannot be imputed without evidence.
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24 December 1979 |
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Appeal allowed where evidence did not clearly identify the aggressor and two‑year sentence was excessive; appellant ordered released.
* Criminal law – Assault causing grievous harm – Adequacy of evidence to identify aggressor and sustain conviction. * Criminal law – Self‑defence – relevance where parties engaged in a mutual fight and appellant was injured. * Sentencing – Manifestly excessive sentence; mitigation and time already served; leniency for expectant offenders.
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24 December 1979 |
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Reported
Communications by management and a workers' committee about alleged employee theft were protected by qualified privilege; libel claim dismissed.
Libel – justification (truth) not proved – qualified privilege applies to communications made in discharge of managerial and statutory duties to proper recipients – absence of malice defeats plaintiff's claim – employer vicarious liability negated where publication is privileged.
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21 December 1979 |
Tort - Defamation - Libel - Allegation of defrauding the employerPublication of defamatory matter - Accusing plaintiff of having committed a criminal offence - Whether defence of justification available - Standard of proof beyond reasonable doubt. Tort - Defamation - Defence of qualified privilege- When such defence available. |
21 December 1979 |
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Appeal against conviction and sentence dismissed; identification evidence held reliable and seven-year sentence lawful.
Criminal law – robbery with violence – identification evidence – credibility findings by trial court entitled to deference – alleged mistaken identity due to intoxication – sentence amounting to statutory minimum.
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19 December 1979 |
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Appellant’s robbery conviction upheld: eyewitness identification reliable and alibi unsupported, appeal dismissed.
* Criminal law – Robbery with violence – sufficiency of eyewitness identification; credibility of complainant and accompanying witness. * Criminal procedure – Alibi – requirements and assessment of supporting evidence. * Appellate review – Deference to trial court’s credibility findings where record gives no basis to disturb them. * Sentence – affirmed as minimum prescribed for the offence.
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19 December 1979 |
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Guilty plea and admissions established store-breaking despite lack of independent proof of ownership; conviction and sentence upheld.
* Criminal law – Store breaking (s.296 Penal Code) – Sufficiency of facts supporting conviction – Effect of plea of guilty and voluntariness – Proof of ownership not always required where admission and context establish theft. * Sentencing – application of minimums; sentence not excessive.
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19 December 1979 |
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Corroborated accomplice and witness evidence of possession and handling of stolen goods established guilt; appeals dismissed.
Criminal law – Breaking and stealing – Possession of stolen goods shortly after theft – Accomplice evidence and requirement of corroboration – Corroboration by independent witnesses (taxi driver, arresting officer) – Identification of recovered goods – Appeal dismissed.
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19 December 1979 |
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Daylight identification by a blindfolded victim upheld; conviction and seven-year minimum sentence affirmed and mandatory compensation ordered.
Criminal law – Robbery with violence – Identification evidence in daylight and after partial removal of blindfold – Safety of conviction; Sentencing – statutory minimum sentence upheld; Compensation – mandatory under Minimum Sentences Act s.7(1).
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19 December 1979 |
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Appellant's conviction for corrupt transaction upheld; trial court credibility findings and minimum sentence affirmed.
* Criminal law – Corrupt transaction – Receipt of gratification to execute public duty (attachment of property) – Evidence of payment by decree-holder. * Evidence – Credibility assessments – Appellate deference to trial court’s findings where magistrate saw and heard witnesses. * Appeal – Insufficient grounds to overturn conviction based on alleged witness conspiracy. * Sentence – Minimum statutory sentence upheld.
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19 December 1979 |
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Shortage of stock proved but evidence showed assistants may have issued goods; conviction set aside for reasonable doubt.
* Criminal law – Theft by servant – Prosecution must prove accused personally committed theft beyond reasonable doubt. * Delegation of duties – Evidence that assistants issued stock and invoices not in accused’s handwriting can raise reasonable doubt. * Standard of proof – Where reasonable doubt exists, conviction unsafe and must be set aside.
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19 December 1979 |
Criminal Law-Robbery with violence-snatching and throwing out of a train window a suitcase and pushing complainanıt away so as to run away-Time factor. |
19 December 1979 |
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A court may not entertain a suit to compel a spouse to resume cohabitation; such proceedings are void.
Family law — Suit to compel cohabitation — Prohibition under Section 140 of the Law of Marriage Act — Proceedings entertaining such claim quashed — Marriage preserved.
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19 December 1979 |
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Appellate court quashed corruption conviction where evidence showed obtaining money by false pretences, not the charged offence.
Criminal law – charge and proof – insufficiency of evidence to sustain prosecution for corrupt transaction – facts indicating obtaining money by false pretences – appellate court cannot substitute conviction for uncharged offence.
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19 December 1979 |
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Circumstantial evidence failing to exclude other reasonable hypotheses cannot sustain a theft conviction; conviction and restitution quashed.
Criminal law – sufficiency of circumstantial evidence; conviction unsafe where alternative hypotheses not excluded; relevance of co-accused acquittal and shared access; restitution dependent on valid conviction.
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18 December 1979 |
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Convictions quashed where accounting discrepancies and unreliable handwriting evidence failed to prove theft beyond reasonable doubt.
Criminal law – Theft of public revenue – Insufficiency of accounting discrepancies alone to prove theft; Evidence – Handwriting identification – foundation required under s.49 Evidence Act; Procedure – Impermissible omnibus charging without particularising occasions and responsibility; Misapplication of inference from unauthorised delegation of duties to criminal guilt.
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18 December 1979 |
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Appeal against burglary and theft convictions dismissed where record established guilt and sentences were lawful.
* Criminal law – Burglary and theft – Appeal – Whether convictions supported by record – Whether sentences lawful or excessive – Appellate summary dismissal where guilt established and sentences within statutory bounds.
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18 December 1979 |
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High Court dismissed further appeal; District Court's reduction of excessive crop-damage award affirmed.
Civil damages — damage to crops by livestock — assessment of quantum; payment in kind — whether accounted for; appellate review — reduction for unreliable damage assessment; dismissal for lack of merit.
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18 December 1979 |
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Primary Court may appoint an administrator under customary law even if the estate includes registered land.
Primary Court jurisdiction to appoint administrators; administration of estates under customary/Islamic law; effect of registered land on customary estate administration; distinction between appointment proceedings and title disputes.
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13 December 1979 |
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Bride price not refundable where the respondent’s daughter died while still married to the appellant; appeal dismissed.
Customary law – Bride price – Refundability – Where wife dies while still married no refund under Rule 80A Declaration of Customary Law Rules 1963; effect of alleged retrieval of wife for unpaid bride price; procedural failure of Primary Court to resolve key factual issues.
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13 December 1979 |
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Wife’s deliberate abandonment permits refund of bride price under Rule 59, but court may reduce refund to avoid unfairness to an innocent third party.
* Customary law – Refund of bride price – Rule 59 Declaration of Customary Law Rules – full refund where wife deliberately breaks up marriage even with issue present. * Evidence and credibility – assessment of parties’ testimony and effect on entitlement. * Judicial discretion – reducing refund to avoid unfairness to innocent third party.
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13 December 1979 |
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Accused’s protracted, deliberate assault with an iron bar showed malice aforethought; provocation defence rejected, convicted of murder and sentenced to death.
Criminal law – Offence: murder v. manslaughter – Defence of provocation – Whether provocation was sudden and grave – Medical and eyewitness evidence establishing repeated, heavy blows and malice aforethought – Extra‑judicial confession and surrender of weapon corroborating guilt.
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13 December 1979 |
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Conviction for corrupt transaction upheld: corroborated evidence and recovered recorded notes outweigh absence of money on accused.
Criminal law – Corrupt transaction – Sufficiency of evidence – Eyewitness corroboration and recorded currency serial numbers; absence of money on accused's person not fatal; trial record on calling witnesses; sentencing not manifestly excessive.
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12 December 1979 |
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An appeal against minimum sentences after a guilty plea is generally not competent; concurrent sentencing across separate trials lacks statutory basis.
Criminal law – sentencing – competency of appeals where accused pleads guilty and receives statutory minimums; distinctness of offences across trials – inability to order concurrency after completion of earlier sentence; prosecutorial failure to join counts – administrative, not necessarily legal, remedy; sentencing discretion – excessive short custodial term for minor regulatory offence can be reduced on appeal.
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12 December 1979 |
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Burglary conviction quashed for lack of breaking or intent; theft conviction upheld for taking back previously given items.
* Criminal law – Burglary – elements require proof of breaking and intent to commit felony at time of entry – lack of evidence of either defeats burglary charge.
* Criminal law – Theft – taking back previously given portable items may constitute stealing where no lawful claim of right is shown.
* Evidence – credibility of complainant’s account and recovery of property affect compensatory awards.
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12 December 1979 |
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Conviction quashed where charge lacked particulars and evidence did not prove dangerous driving.
Criminal law – dangerous driving – necessity for charge to specify act or omission constituting dangerous driving; sufficiency of evidence to prove negligent driving where vehicle enters road depression caused by third-party works.
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12 December 1979 |
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Appellant failed to prove under Wakuria customary law that one cow died; appeal dismissed and assessors’ findings upheld.
Customary law – proof of loss/death of cattle under Wakuria/Kuria custom – weight of assessors’ evidence from the tribe – appellate deference; bride-price refund; withholding property as condition for refund.
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11 December 1979 |
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The applicant’s appeal fails because the will was void under customary law, leaving the land as clan property.
Customary land – Succession – Validity of will – Attesting witnesses must belong to testator’s clan – If will invalid, land remains clan property under Bahaya customary law and cannot be alienated to outsiders.
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11 December 1979 |
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Applicant's uncorroborated allegations of cruelty were disbelieved; appeal dismissed for lack of credible evidence.
* Family law – dissolution of marriage – cruelty as ground for divorce – requirement that allegations be credible and supported by evidence; corroboration and reporting to others affect credibility.
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10 December 1979 |
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Accused convicted of murder; temporary insanity not proved; mandatory death sentence imposed.
* Criminal law – Murder – elements: death, homicidal cause, and accused’s causal responsibility. * Confessions – extra‑judicial and admissions to police – voluntariness and consistency with other evidence. * Mental state – alleged temporary insanity/diminished responsibility – burden on accused to adduce evidence to raise reasonable doubt. * Sentence – mandatory death sentence for murder under section 196 (as applied).
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10 December 1979 |
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Whether the shamba was clan land and, if so, whether redemption required refund of purchase price and improvements.
Property law – dispute over whether land is clan land or privately owned; redemption of land – requirement to refund purchase price and pay for unexhausted improvements; appellate review – proper handling of assessors’ findings and requirement for evidence before setting aside a sale.
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6 December 1979 |
| November 1979 |
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30 November 1979 |
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Court convicted two accused of murder on eyewitness and postmortem evidence, rejected ID‑parade challenges, and sentenced them to death.
Criminal law – Murder – proof of homicidal death by post‑mortem; eyewitness identification and identification parade; admissibility and effect of procedural irregularities in parades; credibility of eyewitness and corroboration; mandatory death sentence on conviction under s.196 Penal Code.
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30 November 1979 |
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Guilty plea and first-offender status merit leniency, but calculated theft by a public servant justified a deterrent nine-year sentence; theft sentences ordered concurrent.
Sentencing — plea of guilty and first-offender status as mitigating factors; sentencing discretion vs deterrence for public servants' theft; consecutive versus concurrent sentences for multiple counts arising from similar transactions; appellate review of sentence.
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29 November 1979 |
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Court reduced custodial sentences and quashed juvenile's sentence due to mitigation and doubt as to age.
Criminal law – Sentencing – First offender and early plea of guilty attract leniency; Sentencing alternatives (fines vs imprisonment) for price-control offences; Juvenile protection – doubt as to age resolved in accused's favour; Children and Young Persons Ordinance s.22(2) precludes imprisonment of a young person if other measures are suitable.
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29 November 1979 |
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The respondent's delay rendered the redemption claim time‑barred; appeal allowed and suit dismissed.
* Land law – redemption of customary/clan land – notice at vendor's funeral – limitation/time for instituting redemption action; credibility of delay excuses; appellate review of factual findings.
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28 November 1979 |
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Prosecution entered nolle prosequi in manslaughter charge and the accused was discharged despite claiming self‑defence.
* Criminal law – Manslaughter – arraignment and pleas – accused claimed self‑defence and later pleaded not guilty; * Prosecution discretion – nolle prosequi under section 81 CPC; * Effect of nolle prosequi – discharge of accused; * No determination on guilt where prosecution discontinues case.
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28 November 1979 |
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Prosecution entered nolle prosequi under s.81 C.P.C. due to a weak case; the accused was discharged.
* Criminal law – Manslaughter – Accused admits killing but alleges self-defence; plea of not guilty entered.
* Criminal procedure – Nolle prosequi – Prosecution entry under s.81 C.P.C. where case considered weak.
* Effect – Entry of nolle prosequi results in discharge of the accused.
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28 November 1979 |
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Court refused to reduce bail, finding the magistrate’s exercise of discretion in a robbery-with-violence case justified.
* Criminal procedure – Bail – Application under s.123 Criminal Procedure Code – Whether bail excessive and subject to reduction – Discretion of magistrate in fixing bail to be exercised judicially and only disturbed if exercised on wrong principles. * Substantive law – Robbery with violence – seriousness of offence and potential sentence relevant to bail conditions. * Credibility – Accused’s financial capacity assessed in considering excessiveness of bail.
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26 November 1979 |
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Identification under available light and arrest chronology upheld conviction; statutory minimum sentence affirmed.
Criminal law – Robbery with violence – identification evidence; sufficiency of lighting (lantern and moonlight); delay between offence and arrest (arrest, escape, rearrest) – right to silence – statutory minimum sentence upheld.
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23 November 1979 |
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Circumstantial evidence failing to exclude reasonable third‑party involvement cannot sustain a theft conviction.
Criminal law – Theft (stealing by servant) – Circumstantial evidence – Must exclude reasonable hypothesis of innocence – Physical demonstrations insufficient to prove guilt – Appeal allowed where conviction unsafe.
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23 November 1979 |
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Will invalid for non‑compliance with formalities: all witnesses related to testator and required recital omitted; appeal dismissed.
Wills — Formalities and validity — Attesting witnesses — Prohibition on all witnesses being related to testator; failure to comply with statutory recital requirement for certain bequests — Non‑compliance renders will invalid; appellate affirmation of lower courts.
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22 November 1979 |
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Appeal allowed only for five cattle seized earlier; concurrent factual findings on remaining cattle upheld.
Execution and seized property – ownership of seized cattle; appellate review of concurrent findings of fact and credibility – requirement of misdirection to interfere; weight of party’s failure to object to earlier seizure as evidentiary factor.
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21 November 1979 |
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Appellate court upheld theft and receiving convictions, quashed misapplied theft conviction where appellant was accessory after the fact.
Criminal law — Theft — Evidence to prove participation in removal and transport supports conviction for theft; Receiving stolen property — mens rea: knowledge or reason to believe property was stolen; Retaining stolen property — distinct mental element: dishonest retention may occur after innocent receipt; Accessory after the fact — distinct offence under section 388, not minor/cognate to theft; Section 181 CrPC inapplicable to substitute accessory after the fact for theft.
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21 November 1979 |
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Court permitted admission of requisitions not tendered at trial and adjourned the appeal to admit them.
* Criminal appeal – admission of additional evidence – requisitions seized in investigation but not tendered at trial – court grants application to admit exhibits and adjourns appeal.
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19 November 1979 |
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Recent possession, identification and rejected alibi sustained conviction for cattle theft; appeal dismissed.
* Criminal law – Cattle theft – conviction based on recent possession and identification of stolen property.
* Evidence – recent possession as circumstantial evidence of theft; alibi rejected where witnesses do not corroborate.
* Sentence – minimum statutory term applied and upheld.
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16 November 1979 |