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Citation
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Judgment date
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| December 1985 |
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Appellant's cattle-theft conviction quashed where prosecution failed to identify the unmarked cattle as stolen.
Criminal law – Theft – Proof of identification of stolen property – Essential requirement to link specific animals to accused where animals unmarked; insufficiency of unmarked-cattle evidence; appellate intervention where conviction unsafe. Appeal – Conviction and sentence quashed for lack of proof; order for return of property.
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31 December 1985 |
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A mutual savings arrangement does not make an agreed salary an underpayment of the statutory minimum; convictions quashed.
* Employment law – Regulation of wages – Whether an arrangement where an employee leaves part of salary with employer reduces agreed salary for minimum-wage offences – Agreed gross salary vs amounts actually paid * Criminal law – Elements of failure to pay statutory minimum wage – necessity of proving that agreed salary was below statutory minimum * Civil remedy – Withheld savings by employer may give rise to a civil claim rather than a criminal prosecution
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31 December 1985 |
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A late substantive amendment to dangerous-driving particulars and insufficient evidence rendered the conviction unsustainable.
* Criminal law – Road Traffic Act – dangerous driving – necessity for particulars of the specific act constituting dangerous driving in information. * Criminal procedure – amendment of charge – limits of section 209: timing and scope – late substantive amendment unlawful. * Criminal procedure – section 346 not available to cure substantive illegality. * Criminal law – duplicity: single count for two deaths improper. * Evidence – insufficiency of inference from skid marks/distance alone to prove overspeeding and guilt.
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7 December 1985 |
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False, malicious accusations of theft constituted actionable defamation; Primary Court judgment restored with costs.
Defamation – accusation of theft – falsity and malice established where official inquiries exonerate accused; absence of privilege where statements motivated by personal vendetta.
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1 December 1985 |
| October 1985 |
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Reported
Criminal Law - Recent possession doctrine - Whether applies to cover all penal offences including murder.
Criminal Law - Recent Possession - whether 8 months is recent enough tojustify the application ofthe doctrine where the article in question is a radio cassette. |
9 October 1985 |
| July 1985 |
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Conviction quashed where trial court ignored defence showing the appellant lacked custody when the theft occurred.
Criminal law – theft by agent; burden of proof and custody of funds; evaluation of defence evidence and reasonable doubt; appellate review for failure to give weight to credible defence; quashing unsafe convictions and ordering release.
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12 July 1985 |
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Conviction cannot stand where mere possession of a shop key and opportunity are the only links to the theft.
Criminal law – stealing by agent – sufficiency of evidence – circumstantial evidence and opportunity – possession of key not alone proof of guilt – appellate review of unsafe convictions.
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12 July 1985 |
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Appellant's conviction for theft by servant quashed due to reasonable doubt from inconsistent witness evidence and unclassified delivery note.
Criminal law – theft by servant – burden of proof – reasonable doubt – evidentiary weight of delivery notes and witness inconsistencies – accused entitled to benefit of doubt.
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9 July 1985 |
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Appellants convicted of stealing by agent; evidence of counting funds undermined defence and five-year statutory sentences affirmed.
Criminal law – Stealing by agent (s.273(b) Penal Code) – Evidence of custody and counting of funds – Credibility of accused's explanation – Sentence: statutory minimum upheld.
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8 July 1985 |
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The applicants' convictions for stealing by servants and mandatory three‑year sentences were upheld.
* Criminal law – Stealing by servants – misappropriation of sale proceeds by employees entrusted to remit collections. * Evidence – credibility of purchaser's testimony and appellant's concession as determinative. * Defence – implausibility of after‑the‑fact refund explanation and internal contradictions. * Sentencing – application of Mandatory Minimum Sentence under section 4(a) of the Minimum Sentences Act.
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8 July 1985 |
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Failure to account for entrusted public funds warrants conviction for theft and the statutory minimum sentence is upheld.
* Criminal law – Theft of entrusted funds – Failure to account for public money amounts to theft. * Criminal procedure – Joint liability – Where funds are jointly entrusted, both parties may be convicted if they fail to account. * Sentencing – Statutory minimum sentence upheld and not open to challenge.
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8 July 1985 |
| April 1985 |
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Reported
Criminal Law - Uttering a false document - Permit to hold ngoma issued in contravention of an alleged quarantine - Whether the permit which was not required by law amounted to a false document in law -Whether there was utterance as defined by section 5 ofthe Penal Code. |
6 April 1985 |
Criminal Practice and Procedure - Bail - Bail under the Economic and Organised Crime Control Act 1984 - Application for bail to the High Court not sitting as an Economic Crimes Court -Economic and Organised Crime Control Act 1984, ss.29(4) and 35(1). |
6 April 1985 |
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Assault followed by force to take property constitutes attempted robbery; concurrent grievous-harm conviction quashed to avoid double punishment.
Criminal law – Attempted robbery – intoxication does not preclude intent where intent formed after assault; use of force to take property constitutes attempted robbery. Criminal law – Double punishment – where the same act constitutes two offences, offender may be punished for only one; the graver offence prevails.
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1 April 1985 |
| March 1985 |
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Conviction quashed where appellant lacked mens rea and substituted conviction under a different theft provision was legally unsustainable.
Criminal law – Theft – mens rea (animus furandi) – entrusted funds used pursuant to employer/authority directions; Substituted conviction – validity under section 181 – distinction between stealing by servant (s271) and stealing by agent (s273(b)); Evidentiary failure – non-production of payment vouchers.
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27 March 1985 |
Criminal Law - Theft - Ingredients of the offence. Criminal Law- Stealing by servant - Whether covers a situation where the thing stolen is not the property of accused's employer. Criminal Law - Stealing by agent - Whether cognate to the offence of stealing by servant to make the former minor to the latter |
27 March 1985 |
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Reported
Criminal Law - Contempt of court - Accused refuses to answer a question from a co-accused - Presiding magistrate overrules such objection - Accused still refuses to reply - Whether accused is guilty of contempt of court, (s. 114(2) of the Penal Code).
Criminal Practice and Procedure - Contempt of court - Magistrate convicts accused person in a summary proceeding without drafting a charge of contempt of court - Whether failure to do so occasioned a failure of Justice. |
27 March 1985 |
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An accused who elects to testify and refuses to answer court-ordered questions may be guilty of contempt, but summary sentences must respect statutory limits.
* Criminal law – Contempt of court – Witness refusing to answer question after court order – s.114(1)(b) Penal Code – election to give evidence submits accused to witness rules.
* Criminal procedure – Summary conviction under s.114(2) – requirement to frame charge satisfied by notifying gist, legal provision and affording opportunity to reply.
* Sentencing – Summary conviction limits – maximum punishment under s.114(2) is fine of 400 shillings or one month imprisonment; higher sentence illegal.
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27 March 1985 |
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Compensation under s.176(1) may be ordered only against a convicted person; third parties must be heard before being condemned to pay.
Criminal procedure – section 176(1) Criminal Procedure Code – scope of compensation orders – such orders may be made only against a convicted person; Natural justice – audi alteram partem – third party must be heard before being ordered to pay compensation; Liability of employer – cannot be imposed under s.176(1) where employer not charged/convicted.
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26 March 1985 |
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Appellant’s personation conviction, mischarged under the wrong subsection, was cured procedurally and the two-year sentence confirmed.
* Criminal law – Personation of public officer – Distinction between section 100(1) and 100(2) of the Penal Code – Proper subsection for false representation to obtain attendance or act.* Criminal procedure – Cure of misdescription of offence under section 346 Criminal Procedure Code – when conviction may be treated as under correct subsection.* Sentencing – Maximum statutory penalty, mitigation (youth, first offender), and effect of sentence already served.
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9 March 1985 |
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Reported
CriminalPractice andProcedure - Charges - Impersonating a Public Officer contrary to s. 100 ofthe Penal Code - Whether conviction maintainable where accused was originally charged under a wrong sub-section. |
9 March 1985 |
| January 1985 |
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Criminal Law - Murder - Defence of Provocation - Acts that may constitute provocation — Whether wife’s refusal to have sexual intercourse is an act constituting provocation. Provocation - Evidence — Burden of proof when provocation is pleaded as a defence to a charge of murder - Burden on the prosecution to show absence of provocation. |
14 January 1985 |
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1 January 1985 |
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1 January 1985 |