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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 |
| 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 |
| October 1979 |
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Appeal against forgery and theft convictions dismissed; handwriting ID and written admission upheld; sentence affirmed.
Criminal law – Forgery and theft by clerk/servant – Handwriting identification by colleagues – Written admission/confession – Admissibility of admission and needlessness of handwriting expert – Sentence and compensation upheld on appeal.
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29 October 1979 |
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Possession of branded stolen cattle six days after theft with no explanation supports theft conviction; appeal dismissed.
* Criminal law – Cattle theft – Possession shortly after theft as evidence of guilt; identification by acquaintances – guilty receiving versus actual theft. * Sentencing – Application of Minimum Sentences Act; five-year custodial minimum for scheduled offence.
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26 October 1979 |
| September 1979 |
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Appeal dismissed where respondent’s corroborated witness testimony outweighed appellant’s bare denial.
Civil evidence — Credibility and witness demeanour — appellate deference to trial court; Sale of goods (cattle) — proof by witnesses versus bare denial; Civil appeal — insufficiency of grounds to overturn factual findings.
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22 September 1979 |
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Appeal allowed where prosecution failed to verify alleged missing stock, quashing conviction for stealing by servant.
Criminal law – Theft by servant – Proof beyond reasonable doubt – Reliance on unverified reports and documents (Exhibit B/C) is insufficient – Necessity of physical verification of contested stock – Benefit of doubt and quashing of conviction.
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6 September 1979 |
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Conviction for theft by servant quashed where alleged stock shortage relied on unverified reports and documents.
* Criminal law – Theft by servant – Prosecution must establish actual loss or shortage independently of accused’s own report; documentary assertions require verification. * Evidence – Necessity of verifying documentary information against physical facts (stock counts) before basing criminal charge. * Appeal – Conviction unsafe where foundational facts are unverified.
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6 September 1979 |
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Reported
Family Law - Adultery - Sexual intercourse with a woman who has remarried after dissolution ofher marriage to the Appellant- Whether the fact that she had been the Appellant's wife-in thepast is a defence to liabilityfor adultery - Section 72(2) of the Law of Marriage Act 1971
Damages - Adultery - Assessment of damagesfor adultery - Principles to be applied in assessing damagesfor adultery-Section 74 of the Law of Marriage Act 1971 |
5 September 1979 |
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A former marriage does not bar adultery; appellate courts should not disturb damages absent clear error.
Adultery – proof by testimony and near-admission; prior marriage does not preclude adultery after dissolution; Law of Marriage Act 1971 s.72(2) inapplicable; assessment of damages for adultery; appellate restraint in disturbing damages (Davies v. Powell Duffryn).
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5 September 1979 |
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A district court must record statutory reasons under s.17(a) before itself hearing additional evidence on appeal; failure invalidates its decision.
Magistrates' Courts Act s.17(a) – Appellate jurisdiction – Additional evidence – District court may hear additional evidence itself only for reasons recorded in writing – Failure to record reasons renders exercise of power irregular – District court decision recalled and primary court judgment restored.
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4 September 1979 |
| August 1979 |
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Appeal allowed: tenant unlawfully sublet without landlord’s consent under the Rent Restriction Act; vacant possession ordered.
* Rent Restriction Act — unlawful subletting — tenant’s duty to obtain landlord’s consent (s.19(1)(c), s.30).
* Evidence — continued payment of rent to agent and receipts as indicia of unchanged tenancy; burden to prove landlord’s consent.
* Appellate review — trial court’s factual finding set aside where not supported by record.
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25 August 1979 |
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Conviction for grievous harm substituted to assault causing actual bodily harm; sentence reduced relying on medical opinion.
Criminal law – Nature of injury – Grievous harm vs actual/dangerous harm – weight of medical evidence (PF.3) in classifying injuries; Criminal procedure – Adjournment to change counsel – exercise of judicial discretion; Sentencing – reduction for first offenders on substitution of lesser offence.
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15 August 1979 |
| June 1979 |
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A subordinate court that wants to impose below-minimum sentence must commit the accused to the High Court under s.79(1)(b).
* Criminal law – Sentencing procedure – Where special mitigating factors justify a sentence below statutory minimum, subordinate court must commit accused to High Court under s.79(1)(b) Wildlife Conservation Act 1974.
* Construction of s.79(1)(b) – subordinate court must commit straight to High Court rather than first imposing a lesser sentence.
* Precedent – Cyprian s/o Anziga construed to support direct committal requirement.
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25 June 1979 |
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The appeal was dismissed as res judicata and also found to be out of time; no order as to costs.
* Civil procedure — Res judicata — Subsequent appeal on same cause and between same parties is not entertainable; appeal incompetent.* Appeals — Time bar — Late appeal requires application for leave to appeal out of time; failure to do so renders appeal defective.* Costs — No order as to costs where respondent did not appear.
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22 June 1979 |
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Appellant’s conviction reduced to theft of 14 locks; prosecution failed to prove theft of the remaining 94 locks.
Criminal law – Theft by servant – Identification and recent possession – When recent possession permits inference of theft – Burden of proof beyond reasonable doubt – Minimum Sentences Act application.
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13 June 1979 |
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Conviction quashed where prosecution failed to produce Police General Orders and prove government pecuniary loss.
Criminal law – negligence by public officer – section 284A(1) Penal Code – requirement to prove pecuniary loss; Evidence – judicial notice of written laws/regulations under s.59(1)(a) Evidence Act – court may note existence but must interpret content; prosecution’s duty to produce relevant Police General Orders when alleging breach.
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5 June 1979 |
| May 1979 |
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Second appellant's theft conviction upheld on eyewitness identification and possession; first appellant's conviction quashed for insufficient evidence.
* Criminal law – Theft (cattle) – Requirement that prosecution prove possession and identification beyond reasonable doubt – Eyewitness identification and proximity may establish possession.
* Evidence – Sufficiency of identification of stolen property and importance of credible witness testimony despite gaps regarding kraal ownership or precise count of animals.
* Appeal – Appellate court may uphold conviction even when the prosecutor does not support it, if evidence is sufficient.
* Criminal procedure – Conviction quashed where evidence fails to link accused to stolen property.
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30 May 1979 |
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Omission to record an accused's exact words when a not guilty plea is entered is not fatal; total non-remittance supports conviction.
Criminal law – Arraignment and plea-taking – omission to record accused's exact words when 'not guilty' entered – not fatal unless admissions are made; Criminal law – Theft by public servant – distinction between shortages and total non-remittance; convictions supported where amounts collected were wholly unaccounted for; s.196 Criminal Procedure Code – election for trial de novo.
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23 May 1979 |
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Possession and flight alone do not prove stealing; prosecution must establish theft beyond reasonable doubt.
* Criminal law – Theft – Necessity for proof beyond reasonable doubt that property was stolen; possession and flight are suspicious but not conclusive.
* Criminal procedure – Evidence – Failure to prove ownership or dishonest taking fatal to stealing charge.
* Penal Code s.312(1) – Inapplicability where arrest was by a civilian and neither limb of subsection is satisfied.
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23 May 1979 |
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Burden of proof remains on prosecution; appellate court may substitute conviction when evidence proves original offence.
Criminal law – shopbreaking and stealing (s.296(1)) – receiving stolen property (s.311(1)) – burden of proof remains on prosecution – identification of stolen property – appellate reassessment and substitution of conviction – statutory minimum sentence.
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23 May 1979 |
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Appellate court substituted a shopbreaking conviction, holding burden of proof remains on the prosecution.
Criminal law – Burden of proof – remains on prosecution; Receiving stolen property – no onus on accused to prove innocence; Possession shortly after theft as evidence; Identification of stolen property; Substitution of conviction on appeal; Statutory minimum sentence for shopbreaking and stealing.
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23 May 1979 |
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Appellants' burglary and theft convictions upheld on evidence of recent possession; appeals dismissed.
* Criminal law – Burglary and stealing – Evidence of recent possession – Use of confessions and recovery of stolen property to establish guilt – Appellate review of witness credibility.
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23 May 1979 |
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Appeal summarily dismissed and certified under s.317(1)(c) as lacking sufficient grounds after record showed conviction was correct.
Criminal law – Stealing from motor vehicle (Penal Code ss. 269(c), 265); Appeal – sufficiency of grounds; Summary dismissal and certification of frivolous appeal (Criminal Procedure Code s. 317(1)(c)).
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14 May 1979 |
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Appellant convicted of receiving stolen goods where surrounding facts established reason to believe items were stolen; appeal dismissed.
Criminal law – Receiving stolen property (s.311(1) Penal Code) – Knowledge or reason to believe – Indicators: purchase at below-market price; failure to disclose possession prior to search; connection to known seller; production of irrelevant receipts – Particulars error ("purchased" vs "received") curable if not prejudicial – Statutory minimum sentence not reducible on appeal.
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2 May 1979 |
| April 1979 |
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The applicant failed to prove a sale; lower courts correctly found the cow was entrusted, appeal dismissed with costs.
Civil appeal — Ownership of livestock — Sale v. bailment (entrustment) — Credibility and sufficiency of evidence — Appellate deference to concurrent factual findings.
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20 April 1979 |
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Appellant failed to prove delivery of three sacks of salt; only an agreed repayment of shs.50/= was ordered.
Civil law – disputed oral transaction – credibility of witnesses – word against word; failure to prove consideration; enforceable agreement to repay specific sum (shs.50/=).
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17 April 1979 |
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Theft conviction and two-year sentence upheld where appellant was caught in the act and his explanation rejected.
* Criminal law – Theft (s.265 Penal Code) – Evidence of catching the accused in the act – credibility of prosecution witness accepted.
* Criminal procedure – Appeal – Assessment of credibility and sufficiency of evidence – appellate court declines to disturb trial findings.
* Sentencing – Two-year imprisonment for first offender – not manifestly excessive where offence prevalent locally.
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4 April 1979 |
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Appeal dismissed as res judicata barred where identical earlier judgment between same parties was final and unappealed.
* Civil procedure – Res judicata – Identity of cause of action, parties and title – Prior judgment by same competent court final and binding – Failure to appeal previously decided claim bars subsequent suit; exception where record lost may justify retrial.
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3 April 1979 |
| March 1979 |
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Appellant failed to prove pawn matured into sale; pledge remained security and appeal dismissed.
* Civil law – Contract/pledge – Pawning a cow as security for a loan – Distinction between pledge and sale; conversion requires proof of maturity of pawn. * Evidence – Onus – Party asserting conversion/foreclosure bears the onus to prove the pawn matured. * Equity – Fraud – Wrongdoer cannot retain ownership obtained through fraudulent foreclosure.
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30 March 1979 |
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Failure to refer a matrimonial dispute to the mandated Conciliatory Board renders the divorce proceedings a nullity.
Family law – requirement to refer matrimonial difficulties to a Conciliatory Board under s.101 – mandatory compliance – non‑compliance renders Primary Court proceedings nullity; appeal allowed; no order as to costs.
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29 March 1979 |
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Conviction for stealing from a motor vehicle upheld; sentence reduced to 18 months for youth and first offender.
* Criminal law – Theft from motor vehicle – identification in daylight; possession of recently stolen property as evidence of guilt. * Appeal – conviction upheld on credibility and possession evidence. * Sentencing – appellate reduction for youth and first offender.
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26 March 1979 |
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Possession of recently stolen property and reliable identification upheld convictions; sentences increased to ten years each.
* Criminal law – Robbery with violence – Identification evidence – Visual identification in adequate light and voice identification upheld. * Criminal law – Possession of recently stolen property – Presumption of guilt/guilty receiving where no acceptable explanation given. * Appeal – Conviction and sentence review – conviction affirmed; sentence increased.
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21 March 1979 |
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Appeals against robbery convictions dismissed and each sentence increased to ten years for aggravated night-time robbery causing serious wounding.
* Criminal law – robbery – elements established where perpetrators used threats, smashed entrance, seriously wounded proprietor and removed goods. * Identification – credibility of eyewitnesses and voice identification supported conviction. * Joint participation/possession – association and acts linking all appellants to stolen property. * Sentence – appellate enhancement permissible where robbery is highly aggravated (night-time, serious wounding, property damage).
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21 March 1979 |
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The applicant's petition for dissolution for desertion failed because the applicant was found to have deserted the matrimonial home.
Matrimonial law – dissolution for desertion – burden and proof of desertion – where spouse repeatedly refuses to return despite requests, petition for dissolution may be dismissed; customary marriage context.
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16 March 1979 |
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The applicant’s dissolution petition for desertion was dismissed because the applicant refused to rejoin the respondent.
Matrimonial law – dissolution for desertion – customary marriage – refusal of spouse to rejoin matrimonial home – upholding Primary Court's factual finding – appeal dismissed.
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16 March 1979 |
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Appellant's res judicata defence failed because the earlier judgment concerned a loan, not the disputed machine; appeal dismissed with costs.
* Civil procedure – res judicata – whether a purported earlier judgment bars a later claim – documentary exhibit showing prior matter concerned a loan not the disputed chattel; appeal dismissed with costs. * Remedies – possibility of claim for share of profits or proceeds when one party manages property or an alleged sale occurs.
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9 March 1979 |
| February 1979 |
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Conviction for soliciting a bribe quashed where no evidence of any complaint, offence or investigation existed.
* Criminal law – Corrupt transaction – Necessity of proving existence of complaint or investigation targeted by alleged bribe; * Evidentiary sufficiency – conviction cannot rest solely on an uncorroborated statement when official records contradict or fail to support the allegation; * Appeal – quashing convictions where essential facts are not proved.
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19 February 1979 |
| January 1979 |
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Theft conviction quashed due to inadmissible handwriting report and breach of s209(1); insufficient admissible evidence.
* Criminal law – Theft by servant – proof of receipt of money – sufficiency of admissible evidence.
* Evidence – Handwriting expert report – formal requirements – Seventh Schedule/section 1540 – admissibility.
* Criminal procedure – Amendment of charge during trial – obligations under s.209(1) to call accused to plead and allow recall/further cross‑examination.
* Conviction quashed where procedural breach and inadmissible expert evidence left insufficient admissible proof.
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25 January 1979 |
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Appellate court upheld conviction and sentence, endorsing trial magistrate’s credibility findings.
Criminal law – Assault causing actual bodily harm – Appeal – Appellate review of trial magistrate’s credibility findings – Evidence of relatives – Caution but not automatic rejection – Sentence and compensation review.
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17 January 1979 |
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Appellant’s failure to adduce evidence after remittal led to dismissal; documentary and witness evidence favoured the respondent.
* Civil procedure — remittal of record to obtain further evidence — appellant’s opportunity to adduce testimony; failure to call witnesses — effect on appeal. * Evidence — probative weight of documentary proof (marriage certificate, divorce proceedings) and witness testimony on duration of cohabitation.
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15 January 1979 |
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Whether possession of recently stolen cattle and inconsistent explanations justify conviction for cattle theft.
* Criminal law – theft of cattle – possession of allegedly stolen property – role and weight of accused’s explanation and third‑party admission – adverse inferences from inconsistent statements and conduct.
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10 January 1979 |
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Conviction quashed due to unreliable identification, prosecutor's failure to cross-examine, and inadequate voir dire for child witnesses.
Criminal law – Identification evidence – reliability where lighting evidence is inconsistent; Prosecution's failure to cross-examine an accused may undermine identification case; Voir dire – necessity of proper examination and record when admitting evidence on oath from children; Appeal – conviction unsafe where cumulative procedural and evidential defects exist.
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10 January 1979 |
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Identification at night upheld, alibis rejected, and mandatory seven-year robbery sentences affirmed.
Criminal law – robbery – identification evidence at night; reliability of identification where witnesses knew accused; effect of minor inconsistencies between witnesses; sufficiency of uncorroborated alibi; mandatory minimum sentence under the Minimum Sentences Act, 1972.
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10 January 1979 |
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A revisional court may not substitute a conviction for an acquittal, nor do so without giving the appellant a hearing.
Magistrates' Courts Act s.17 and s.18 – appellate v. revisional jurisdiction – inability to substitute conviction for acquittal in revision – mandatory right to be heard before substitution under appeal; criminal law – sufficiency of identification/ownership evidence in cattle theft cases.
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9 January 1979 |
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8 January 1979 |
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Appellate court found circumstantial evidence insufficiently convincing in one case and reduced an excessive sentence in another.
* Criminal law – sufficiency of circumstantial evidence – requirement to prove guilt beyond reasonable doubt; prosecution’s duty to identify authorship of forged entries. * Criminal procedure – guilty pleas – distinction between equivocal and unequivocal pleas and their effect on conviction. * Sentencing – appellate review for manifest excess – mitigation where offender has dependants and limited means; reduction of excessive fines.
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8 January 1979 |
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Conviction quashed where trial proceeded on a mention date, denying the accused his statutory right to counsel.
Criminal procedure – Right to legal representation – s.190 Criminal Procedure Code – Trial commenced on mention date without counsel – Deprivation of counsel through no fault of accused vitiates conviction.
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1 January 1979 |
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Recent possession and eyewitness evidence upheld the applicant's conviction for cattle theft; five-year minimum sentence affirmed.
Criminal law – cattle theft – evidence and credibility – alibi rejected – doctrine of recent possession – conviction and minimum five-year sentence upheld.
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1 January 1979 |
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Appeal allowed: primary court findings on engagement, customary gifts and absence of marriage upheld; retrial order quashed.
Appeal — retrial ordered by district court — primary court had determined substantive issues; Law of Marriage Act 1971 displaces customary rules (Second Schedule/section 3A); section 71—engagement gifts (kinyago); Wanyakyusa customary claims and proof of cohabitation; sufficiency of evidence to uphold primary court findings.
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1 January 1979 |
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Rebate of dowry refund upheld where lengthy marriage and inadequate maintenance justify reducing the refund despite full dowry having been paid.
* Family law – dowry (brideprice) – refund on dissolution of marriage – circumstances (duration of marriage, issue, maintenance) may justify rebate of dowry refund.
* Evidence – proof of quantum of dowry – assessment of witness credibility where claimant’s assertion of lower amount is unsupported.
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1 January 1979 |