East African Court of Appeal - 1948

Criminal Procedure - Costs against the Crown - Frivolous or vexatious charge.

Limitations Ordinance, 1934—Adverse possession—Onus of proof.

Option agreement—Sale of land—Plantiff’s option to purchase for £8,000. Agreement to sell for £10,000 to Defendant—Vendor’s price not disclosed— On acquiring subsequent knowledge of it Defendant wishing to withdraw from agreement—Subsequent agreement—Whether original contract between Plaintiff and Defendant rescinded by subsequent agreement or by misrepresentation.

Criminal Procedure - Case stated - Section 367, Criminal Procedure Code.

Criminal procedure and practice - Magistrate's ruling of "no case to answer" at close of prosecution - Case stated - Criminal 'Procedure Code, section 367- Question of law - Case stated not in accordance with section 375, Criminal Procedure Code - Restatement - Criminal Procedure Code, section 372 (a) - Proper form of case stated on question of law whether prosecution evidence established prima facie case.

Writ of Habeas Corpus - Application to make absolute order nisi - Criminal Procedure Code, section 387 - Application under order of deportation - Failure to comply with notice under section 7, Immigration Restriction (Amendment) Ordinance, 1930 - Whether Applicant had acquired a Kenya domicile of choice - Question of fact - Burden of proof - Tests to apply.

Vendor and Purchaser - Claim to enforce contract of sale of motor vehicle - Plaint amended after adjournment - New cause of action - Claim to recover the property - Admission in plaint that agreement void "being contrary to certain provisions of law"—Credit Trade with Natives Ordinance, Cap. 130 - Permit of Controller under Defence (Sale and Purchase of Motor Vehicles) Regulations, 1945, not obtained prior to sale - Admission by Plaintiffs that permit not obtained - Whether Plaintiffs entitled to maintain claim and recover property - Application of maxim in pari delicto potior est condiiio defendeniis - Contract ex facie illegal - Admission in proceedings from which illegality appears - Right and duty of trial Court.

Landlord and tenant—Action for possession of business premises—Notice to quit —Assignment by contractual tenant—Indian Transfer of Property Act, Section 108 (j)—Subsequent assignment by statutory tenant holding over— The Increase of Rent and Mortgage Interest (Restrictions) Ordinance, 1940— Trespassers—When permission of the Rent Control Board to sue is not required—Sections of the Kenya Rent Restrictions Ordinance to be construed following decisions of English Court of Appeal.

Civil procedure—Partnership accounts—Referee.

Contract of Guarantee - Construction - Informal written contract-Evidence in proof of precise terms of contract - Admissibility - Indian Evidence Act, 1872, section 91 and section 92, proviso 2.

Divorce—Domicil—Burden of proof.

Landlord and Tenant - Agreement for exclusive use of hotels -Whether a "licence" or a "Iease" - Construction of Agreement - Proper Test - Increase of Rent and Mortgage Interest (Restrictions) Ordinance, 1940 (Consolidated Edition), section 4.

Criminal Law - Obtaining money by false pretences, Penal Code, section 306 - Representation of future event - Definition of false pretences, Penal Code, section 305 - Evidence of theft, Penal Code, section 269 - Accomplice - Corroboration - Conviction of theft, Criminal Procedure Code, section 188 - Sentence.

Husband and wife—Contract for necessaries—Groceries and liquor—Account opened in wife’s name—Wife having no separate income—Tradesman unwilling to give credit to husband—Reason for mistrust not communicated to wife—Whether wife contracted otherwise than as agent for her husband —Question of fact.

Practice - Civil action - Judgment by consent before Judge - Application for execution by personal arrest - Order XIX, rule 8 -  District Registrar purporting to sign decree - Decree subsequently signed by Judge - Effect of document signed by District Rtgistrar - Procedure - interest - Meaning of "further interest", section 26, Civil Procedure Ordinance - Failure to comply with Order X1X, rule 8 - Power to reject application for execution - Order XIX, rule 14-i Courts' inherent power - General power to amend - Sections 99 and 101, Civil Procedure Ordinance - Costs.

Pleadings - Practice -  Civil Procedure Rules, 1927, Order 13, rule 1 (5) - Issue raised on the pleadings not framed - Duty of Court - Action for possession, rent and other charges - Increase of Rent and Mortgage Interest (Restrictions) Ordinance, 1940.

Criminal practice and procedure - Proceedings for security for keeping the peace - Criminal Procedure Code, section 42 - Information to Magistrate not on oath - Irregularity - Meaning of "informed on oath" - Order for costs - Appeal from - Application of sections 171 (2) and 173, Criminal Procedure Code to proceedings under section 42.

^Procedure—Order VI Rule 19 Civil Procedufb Rules—Amendment to name of plaintiff in pleadings—Grounds of belief in affidavits.

Landlord and tenant—Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940—Statutory tenancy—Right to sub-let.

Criminal Law - Sale of adulterated milk - Public Health (Milk and Dairies) Rules, 1925, rule 40A - Accused laying information against employee as actual offender - Public Health (Milk and Dairies). Amendment Rules, 1944 (G.N. No. 851 of 1944), rule 40A - Warrant issued but not served - Responsibility for service thereof - Evidence of due diligence and search imperative before proceeding against accused - Criminal Procedure Code, section 381 - Uncurable irregularity.

Criminal Law — Affray— Kenya Penal Code, section 89 — Appeal to Supreme Court — Summary dismissal, section 352 (2), Criminal Procedure Code, Kenya — Appeal to Court of Appeal — Part of record found to have been missing — Incomplete record before Judge — Impossible for Court to judge merits of appeal — New trial considered.

Criminal Law - Practising Medicine without a licence - The Medical Practitioners and Dentists Ordinance (Cap. 119, Laws of Kenya), section 18 - "Treating patients for gain" -What need be proved to establish commission of offence - Sentence.

Criminal procedure — Enhancement of sentences on appeal —Opportunity to be- given to accused to show cause against enhancement.

Criminal law — Forgery, section 344, Penal Code — Uttering a false document, section 347, Penal Code — Observations — What an Appellate Court may take into account.

Criminal Law -Murder - Manslaughter - Provocation by insulting words - Interpretation of word “insult” in section 199, Uganda Penal Code—Trial with two Assessors - Assessors divided in opinion - Duty of trial Judge - Uganda Criminal Procedure Code, Section 277 (2) - Matters to be considered in Judgment.

Criminal Procedure - Irregularities - No description of property set out in particulars to the charge - Criminal Procedure Code, section 137 (c) - Magistrate's failure to record that section 209 of the Code had been complied with.

Criminal Law - Official corruption - Penal Code, section 93 (1) - Practice - Charge framed bad for duplicity - Whether curable irregularity - Criminal Procedure Code, sections 135 (2) and 381.

Criminal law— Murder— Actual perpetrator of crime not apprehended—Whether' sufficient evidence to sustain conviction of accused as principal offenders— Tanganyika Penal Code, Section 22— Evidence of accomplices— Corroboration.

Criminal Law — Accused convicted of smuggling, section 224 (a), Customs Management Ordinance, 1926 — Accused later charged with attempting to export game trophies, sections 37 (4), 51 (1) and 52 (1), Game Ordinance, 1937, and section 388, Penal Code—Plea of “autrefois convict’’— Plea rejected — Sentence — Game Ordinance, section 52 (3) — Legality—“Attempt” — Penal Code, section 388.

Criminal Procedure - Section 274 Uganda Criminal Procedure Code- Sections 303 and 279 Kenya and Tanganyika Criminal Procedure Codes - When accused should give evidence.

Crimnial Law - Assaulting a person on account of an act done by him in execution of a duty imposed by Law - Penal Code, section 247 (e) - Evidence - Practice - Criminal Procedure Code, section 209 -Sentence.

Criminal Law - Murder - Evidence - Extra-judicial confession to District Com- missioner - Whether at the time in capacity of police officer, or Magistrate - Admissibility - Indian Evidence Act, section 25 - Accused’s subsequent statement, not denying confession, to committing Magistrate - Statement put in evidence at trial - Whether confession properly before the Court.

Criminal Procedure - Whether an appeal lies against an order to execute a bond to keep the peace - Criminal Procedure Code, sections 42, 47, 53, 60, 347 and 348.

Criminal Law — Murder— Credibility— Manslaughter— Misdirection— Self-defence —Reasonable doubt.

Criminal law - Possession of property reasonably suspected of having been stolen Penal Code section 316 - Circumstances under which the section can be used - Criminal Procedure Code section 25.

Criminal Law - Giving false evidence before a Native Tribunal - Native Tribunals Ordinance, section 29 - Whether evidence material or relative - Distinction between "perjury" under the Penal Code, section 104, and "giving false evidence before a Native Tribunal" - Award of compensation for expenses incuried in previous Civil action - Competency.

Bankruptcy offence -Trader failing to keep proper books of account. Bankruptcy Ordinance, 1930, section 138 (1) - Defence that omission was honest and excusable, section 138, proviso (b) - Onus of proof -Penalty for offences contra section 138 vide section 143 (1) - Imposition of fine inexpedient and improper though not ultra vires - Sentence of imprisonment alone substituted.

Criminal Law - Unlawful occupation of Crown Land - Crown Lands Ordinance, Cap. 140, Laws of Kenya, section 144 - Onus of proof, section 133 - Whether unauthorized erection of additional building amounts to unlawful occupation.

Criminal Law — Fabricating evidence — Giving false information to person employed in Public Service — Tanganyika Penal Code, sections 106 and 122 — Pleas of guilty — Appeal against sentence.

Criminal Law - Murder - Evidence - Chance Medley - Proper direction by Judge - Manslaughter - Sentence.

Criminal law - Burglary and theft, sections 298 (1) and 273 (b), Penal Code - No evidence to link accused with actual breaking - liresistible presumption that he did so - Conviction for burglary - Appeal Court's comments on Magistrate adopting custom of adding notes to a signed judgment - Practice.

Criminal Law - Murder - Evidence - Confession to Assistant Inspector of Police - Uganda Evidence Ordinance, Section 24 - Confessions to gombolola chief - Whether “Police Officer” or “person in authority”- No caution administered to appellants - Evidence Ordinance, Section 27-Circumstances rendering confessions involuntary,

Criminal Law - Official Corruption, section 93, Penal Code - Procedure - Appellant charged with five separate offences in one charge - Duplicity - Fatal defect.

Criminal law and procedure — Section 360 Criminal Procedure Code— Consolidation of appeals.

Criminal law - Permitting a motor vehicle to be used on a road with insufficient brakes, Traffic Ordinance, 1928, section 13 (a) - Four previous convictions for like bffences - Order suspending Certificate of Competency under section 45 - Legality.

Criminal Law - Murder - Insanity - Burden of Proof - Absence of requisite examination by medical officer - Insane delusion as to existing facts - Application of question and answer IV, McNaughton Rules.

Criminal Law — Burglary and Theft — Tanganyika Penal Code, sections 294 (1) and 265 — Evidence — Recent possession of stolen goods — Presumption — Indian Evidence Act, section 114, Illustration (a).

Criminal Law - Murder - Circumstantial evidence - Lack of expert investigation.

Criminal Law - Stock theft - Penal Code, section 272 - Practice - Court calling a witness after close of case for defence - Criminal Procedure Code,section 150- sentence

Criminal law— Local native custom— Stated by assessors after close of defencecase.