Bench Bulletin - Issue 12 - Kenya Law Reports
Bench Bulletin - Issue 12 - Kenya Law Reports
Bench Bulletin - Issue 12 - Kenya Law Reports
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The <strong>Bench</strong> <strong>Bulletin</strong><br />
A publication of The National Council for <strong>Law</strong> Reporting<br />
The <strong>Bench</strong> <strong>Bulletin</strong> is the definitive intelligence briefing for<br />
<strong>Kenya</strong>’s judicial officers, the law practitioner, managers<br />
and the business people. It is a quarterly digest of recent<br />
developments in law, particularly, case law, new legislation in<br />
the form of Acts of Parliament, rules and regulations, pending<br />
legislation contained in Bills tabled before Parliament and<br />
selected Legal Notices and Gazette Notices.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
Farewell To Mrs. Gladys Boss Shollei<br />
NCLR Moves Towards Paperless Office Environment<br />
NCLR Strategic Planning Retreat<br />
Judicial Opinions<br />
Legislative Update<br />
<strong>Issue</strong>s For <strong>Law</strong> Reform From The <strong>Bench</strong><br />
The National Council for <strong>Law</strong> Reporting - The Official <strong>Law</strong> Reporter of the Republic of <strong>Kenya</strong>
Thanks to all Our Partners
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
The Hon. Mr. Justice J. E. Gicheru, EGH,<br />
Chief Justice of <strong>Kenya</strong>, Chairman<br />
THE NATIONAL COUNCIL FOR LAW<br />
REPORTING<br />
MEMBERS<br />
The Hon Mr. Justice Johnson Evan Gicheru, EGH<br />
Chief Justice, Chairman<br />
The Hon Mr Justice P. K. Tunoi<br />
Judge of the Court of Appeal<br />
The Hon Lady Justice J. W. Lesiit<br />
Judge of the High Court<br />
Mrs L. A. Achode<br />
Registrar, High Court of <strong>Kenya</strong><br />
Dr. Ben Sihanya<br />
Dean, School of <strong>Law</strong>, University of Nairobi<br />
Mr. Antony Oteng’o Ombwayo<br />
Attorney-General’s Representative<br />
Mr. Zablon M. O. Kona<br />
Government Printer’s Representative<br />
Mr. Evans Monari<br />
<strong>Law</strong> Society of <strong>Kenya</strong><br />
Ms Florence Muoti Mwangangi<br />
<strong>Law</strong> Society of <strong>Kenya</strong><br />
Mr. Kennedy Nyambati<br />
Inspectorate of State Corporations<br />
Mr. Michael M. Murungi<br />
Ag. Editor/C.E.O<br />
Table of Contents<br />
1. The Council Members........................ 1<br />
2. The Inbox................................................. 2<br />
3. Cases Reported...................................... 3<br />
4. Digest of Cases Featured................... 4<br />
5. Ag. Editor’s Note .................................15<br />
6. Farewell Luncheon ............................16<br />
7. Departmental <strong>Reports</strong> .....................17<br />
8. Feature case ......................................... 29<br />
9. From the Courts.................................. 35<br />
10. <strong>Issue</strong>s for <strong>Law</strong> Reform................... 79<br />
11. Legislative Update........................... 82<br />
<strong>12</strong>. Legal Notices & Bills....................... 84<br />
EDITOR<br />
Michael Murungi<br />
EDITORIAL ASSISTANT<br />
Esther Nyaiyaki<br />
CONTRIBUTORS<br />
Michael Murungi<br />
Esther Nyaiyaki<br />
Ann Asugah<br />
Monica Achode<br />
Nicholas Okemwa<br />
Cornelius Lupao<br />
Andrew Halonyere<br />
Njeri Githang’a Kamau<br />
Nelson Tunoi<br />
DESIGN AND LAYOUT<br />
Catherine Moni<br />
Andare Geoffrey<br />
Contacts<br />
Milimani Commercial Courts<br />
Ground Floor, Ngong Road<br />
Email: info@kenyalaw.org<br />
Tel: (+254) (020) 271 27 67, 271 92 31<br />
Fax: (+254) (020) 27<strong>12</strong>694<br />
NAIROBI, KENYA<br />
www.kenyalaw.org<br />
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www.youtube.com/kenyalawreports<br />
Disclaimer: While the National Council for <strong>Law</strong> Reporting has made every effort to ensure both the accuracy and<br />
comprehensiveness of the information contained in this publication, the Council makes no warranties or guarantees<br />
in that respect and repudiates any liability for any loss or damage that may arise from an inaccuracy or the<br />
omission of any information.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
1
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
THE INBOX<br />
‘The new-look <strong>Bench</strong> <strong>Bulletin</strong> is really good. You have greatly<br />
improved it.’<br />
Mr. Justice S.E.O. Bosire, Judge of Appeal<br />
‘Thank you very much for the [<strong>Bench</strong> <strong>Bulletin</strong> edition of January<br />
– March 2010). It is definitely a fine product in its look, content<br />
and presentation’<br />
Mr. Justice J.W. Mwera, Judge of the High Court<br />
‘I have to congratulate you for publishing a soft copy of the <strong>Law</strong>s<br />
of <strong>Kenya</strong> Grey Book on CD-ROM. Now as I type my judgments, I<br />
don’t have to get up from my desk to refer to the bookshelf. All<br />
I do is cut and paste [the text of the legislation].’<br />
Lady Justice M. Koome, Judge of the High Court<br />
‘Thank you for the <strong>Bench</strong> <strong>Bulletin</strong> [Jan-March Edition] and the<br />
CD-ROM of the <strong>Law</strong>s of <strong>Kenya</strong> Greybook. Very good products.<br />
Please include a revised version of the National Assembly and<br />
Presidential Elections Act (Cap. 7) in the revised statutes.’<br />
Mr. Justice D.K. Maraga, Judge of the High Court<br />
‘Congratulations and thank you for the new look <strong>Bench</strong><br />
<strong>Bulletin</strong> (Jan-March 2010 edition). It looks very colourful and<br />
professionally done.’<br />
Lady Justice J. Gacheche, Judge of the High Court<br />
‘Thank you for your new <strong>Bench</strong> <strong>Bulletin</strong> magazine and the CD-<br />
Rom of the KLR <strong>Law</strong>s of <strong>Kenya</strong> Grey Book. May I congratulate<br />
you for this good initiative and for a job well done’<br />
Mr. Jusitce P. Kihara Kariuki, Judge of the High Court<br />
‘Thank you so much for the excellent new look <strong>Bulletin</strong> Magazine<br />
and CD. Keep up the good work’<br />
Lady Justice H.A. Omondi, Judge of the High Court<br />
2<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
CASES REPORTED<br />
COURT OF APPEAL<br />
Chris Kasamba Karani v Republic Criminal Appeal No. 26 of 2008 ................................................................................................................ 46<br />
David Njuguna Wairimu v David Njuguna Wairimu Criminal Appeal no. 28 of 2009 ................................................ 37<br />
Dennis Muthee Chokera v Republic Criminal Appeal No. 487 of 2007 .............................................................................. 35<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others Civil Appeal <strong>12</strong>5 of 2008 ................................................... 56<br />
Hunker Trading Company Ltd v Elf Oil <strong>Kenya</strong> Ltd Civil Application 6 of 2010 ............................................................... 55<br />
Jackson Kyalo Munge v Republic Criminal Appeal No. 70 of 2007 ......................................................................................... 42<br />
James Karoki Wangeci v Republic Criminal Appeal 146 of 2008 .......................................................................................... 47<br />
James Omingo Magara v Manson Onyongo Nyamweya & 2 others Civil Appeal 8 of 2010 ...................................... 49<br />
Jimi Masege v <strong>Kenya</strong> Airways Limited Civil Application 63 of 2003 .................................................................................... 41<br />
Josiah Afuna Angulu v Republic Criminal Appeal No 277 of 2006 ........................................................................................ 44<br />
Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others Civil Appeal 183 of 2008 ........................ 48<br />
Kenneth Kiplangat Rono v Republic Criminal Appeal No. 66 of 2009 ................................................................................ 45<br />
<strong>Kenya</strong> Breweries Ltd v Godfrey Odoyo Civil Appeal <strong>12</strong>7 of 2007 ........................................................................................... 53<br />
<strong>Kenya</strong> Power and Lightning Company v NMG Company & 3 Others (Interested Parties) Civil Application<br />
No. Nai 74 of 2010 (UR. 152/2010) ..................................................................................................................................................... 39<br />
Kingsley Chukwu v Republic Criminal Appeal 257 of 2007 ....................................................................................................... 55<br />
M.B.O v Republic Criminal Case No 342 of 2008 ............................................................................................................................. 52<br />
Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another<br />
Civil Appeal No. 164 of 2002 .................................................................................................................................................................. 42<br />
Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR Civil Appeal No. 306 of 2004 .............. 36<br />
Mary Wanjiru Githatu v Esther Wanjiru Kiarie Civil Appeal 20 of 2009 ........................................................................... 50<br />
Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd Civil Application 177<br />
& 178 of 2009 ................................................................................................................................................................................................ 38<br />
HIGH COURT<br />
Charles Onyango Oduke & Another v Samuel Onindo Wambi Civil Case No 143 of 2009 ...................................... 66<br />
Charles Wanjohi Murage v Republic Criminal Appeal 80 of 2007 ......................................................................................... 78<br />
Farida Abdullahi Ibrahim & 2 others v Gulf Air Limited [2010] Eklr Civil Appeal 95 of 2002 ............................... 76<br />
Glaxo Group Limited v Syner-med Pharmaceuticals Ltd Miscellaneous Application 792 of 2009 ....................... 75<br />
Isaiah Gichu Ndirangu v Registrar of Political Parties [2010] eKLR Miscellaneous Application 377 of 2009 70<br />
Issack Maina Murathe v Jesidah Wanjiru Murathe Civil Appeal No 87 of 2007 ............................................................. 71<br />
Joseph Mwangi v Republic Criminal Appeal 107 of 2008............................................................................................................ 76<br />
Josephat Njue Solomon v Republic Criminal Appeal 187 of 2008 .......................................................................................... 60<br />
Piedmont Investment Limited v Standard Assurance Limited & 2 others Civil Case No 806 of 2003 .............. 69<br />
Republic v Desmond Mukhaya Mulusa [2010] eKLR Criminal Case 86 of 2007 ............................................................. 61<br />
Republic v Institute of Certified Public Secretaries of <strong>Kenya</strong> Ex Parte, Mundia Njeru Geteria Miscellaneous<br />
Civil Case No.322 of 2008 ......................................................................................................................................................................... 72<br />
Republic v Peterson Karani Njogu Criminal Case 40 of 2008................................................................................................... 73<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR Election Petition 11 of 2008 58<br />
Wachira Weheire v Attorney-General [2010] eKLR Miscellaneous Civil Case 1184 of 2003 .................................... 67<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR Election Petition 10 of 2008 ................................. 63<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010 3
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
COURT OF APPEAL<br />
CHARGE<br />
Framing of a charge – duplicity in framing of charge – appellant claiming that the addition of the particulars relating to<br />
the wounding of the complainant in the robbery charge made it duplicitous – charge failing to include the words dangerous”<br />
and “offensive” to describe the weapons the robbers were armed with – effect of – whether the inclusion of one or more of<br />
the alternative modes of bringing a robbery charge made it duplicitous<br />
David Njuguna Wairimu v David Njuguna Wairimu ..................................................................................................................... 37<br />
Statutory power of sale - sale by public auction-where the suit property was sold to the second respondent through public<br />
auction-where the purchase price was paid after four days instead of the required 25% at the fall of the hammer and the<br />
balance within sixty days-whether the auctioneer diligently discharged his duties in exercising his discretion<br />
Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42<br />
Statutory power of sale - where the first respondent exercised the statutory power of sale and sold the appellant’s<br />
property to the second respondent by public auction-whether the first respondent was entitled to exercise the statutory<br />
power of sale-where the suit property was registered in the second respondent’s name-equity of redemption-whether the<br />
appellant’s equity of redemption was extinguished<br />
Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42<br />
CIVIL PRACTICE AND PROCEDURE<br />
Damages - mesne profits-where the second respondent sought the appellant be condemned to pay mesne profits to him for<br />
the occupation of the suit property-where the suit property was registered under the second respondent’s name-whether<br />
the second was entitled to the rent for the period of occupation<br />
Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42<br />
Judicial review - leave - application for leave to file for judicial review orders-whether the application for leave to apply<br />
for judicial review orders was within the statutory time-whether application for leave for judicial review orders would<br />
operate as stay-where the superior court ordered that the leave for judicial review application operate as stay-validity of<br />
application-<strong>Law</strong> Reform Act (cap 26) section 9 (3); Public Procurement and Disposal Act (Act No. 3 of 2005) section 100<br />
(1); Interpretation and General Provisions Act (cap 2) section 57; Judicature Act (cap 8) section 10<br />
<strong>Kenya</strong> Power and Lightning Company v NMG Company & 3 Others (Interested Parties) .......................................................39<br />
Stay - application for stay of proceedings and orders of the High Court pending hearing and determination of the intended<br />
appeal-whether the applicant demonstrated that the intended appeal was arguable and that it would be rendered nugatory<br />
unless a stay was granted-validity of application-Court of Appeal Rules rule 5 (2) (b)<br />
<strong>Kenya</strong> Power and Lightning Company v NMG Company & 3 Others (Interested Parties) ...................................................... 39<br />
Stay – stay in cases of appeal – stay of recovery of costs awarded to the respondent – appeal against conditional stay<br />
granted – delay in filing appeal – application to strike out – grounds that the appeal had been filed out of time and<br />
without leave of the court – certificate of delay having been issued by the deputy registrar – claims that the certificate of<br />
delay was not proper and could not be relied upon to explain the delay period – court considerations – whether the cases<br />
warranted striking out.<br />
Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd ............................................................38<br />
Stay of execution – application for stay of execution of a judgment and decree by the High Court – application grounded<br />
under sections 3A & 3B of the Appellate Jurisdiction Act – applicant having disobeyed an earlier order by the High Court<br />
to deposit security in an interest earning account – overriding objective of the Appellate Jurisdiction Act- whether the<br />
applicant could rely on the overriding objective having failed to comply with the High Court’s ruling – notice of appeal<br />
relating to the main judgment and not the High Court’s ruling - whether applicant could rely on the overriding objective<br />
provisions having disobeyed the High Court’s ruling – whether non-compliance with the High Court ruling had a bearing<br />
on the application before the appellate court – Rule 5 (2) (b) Court of Appeal Rules and sections 3A & 3B of the Appellate<br />
Jurisdiction Act<br />
Hunker Trading Company Ltd v Elf Oil <strong>Kenya</strong> Ltd........................................................................................................................55<br />
Taxation – appeal – appeal against dismissal of an application for taxation by third party – power to order advocate<br />
to deliver cash account – delay in filing appeal – application to strike out – grounds that the appellant had no right of<br />
appeal – claims that the was no leave to appeal obtained – certificate of delay having been issued by the deputy registrar<br />
- computation of time within which the appeal should have been filed – whether the certificate of delay could be relied<br />
on – whether leave was required to file appeals from the decisions on originating summons.<br />
Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd ............................................................38<br />
4 <strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
CONSTITUTIONAL LAW<br />
Constitutional right - allegation of violation of constitutional right-alleged violation being pleaded as an afterthought<br />
- effect of.<br />
Dennis Muthee Chokera v Republic ................................................................................................................................................. 35<br />
Constitutional right – violation of appellant’s right to be presented to the court upon arrest within 14 days of such arrest<br />
– appellant having been brought to court after the prescribed period of 14 days – where the appellant had failed to raise<br />
that issue both at his trial and in his first appeal – language - failure to interpret the language of the court – appellant<br />
claiming that the court record was not clear whether proceedings were interpreted to the appellant – remedy for breach<br />
of constitutional rights – whether a doubt was created as to the appellant’s understanding of the proceedings – whether<br />
he was precluded from raising a constitutional issue at any other stage of the proceedings – Constitution section 72(3)<br />
and 77(2)<br />
David Njuguna Wairimu v David Njuguna Wairimu ..................................................................................................................... 37<br />
Fundamental rights - rights of an accused person - right to a fair trial - right to be brought to court within a reasonable<br />
time-appellant being charged with murder - appellant having been arrested on February 7, 2007 and was taken to Court<br />
on February 9, 2007<br />
James Karoki Wangeci v Republic ................................................................................................................................................... 47<br />
CRIMINAL LAW - confessions-accused confessing to the offence during inquiry-statement under inquiry admitted after<br />
trial within a trial-effect of.<br />
Jackson Kyalo Munge v Republic ..................................................................................................................................................... 42<br />
CRIMINAL PRACTICE AND PROCEDURE<br />
Appeal – appellant charged for the offence of defilement and an alternative charge of indecent assault of a female –<br />
conviction on alternative charge -appeal against conviction on the alternative count and sentence for 10 years imprisonment<br />
– appeal on grounds that the main charge having been struck out an alternative charge could not be sustained-whether<br />
evidence on record could sustain the offence of defilement - whether the conviction and sentencing was proper – section<br />
144 and 145 (1) of the Penal Code<br />
M.B.O v Republic ................................................................................................................................................................................ 42<br />
Appeal – first and final appeal – duty as the first appellate court to reassess and re-evaluate such evidence and to reach its<br />
own independent conclusion – appeal against conviction and death sentence for the offence of murder – main ground that<br />
the case against the appellant was not proved beyond reasonable doubt – claims of contradictory evidence – whether the<br />
prosecution had proved its case beyond reasonable doubt – Penal Code (Cap 63) section 203 as read with section 204<br />
Josiah Afuna Angulu v Republic ....................................................................................................................................................... 44<br />
Appeal – second appeal – appeal against conviction and sentence for the offence of robbery with violence – grounds that the<br />
superior court failed to consider the defence – duty of the first appellate court – circumstances under which a superior court<br />
could rehash the conclusion of a lower court – whether this was objectionable – Penal Code section 296 (2) (Cap 63)<br />
David Njuguna Wairimu v David Njuguna Wairimu ..................................................................................................................... 37<br />
Appeal – second appeal - matters confined to a second appeal - appellant having been charged with the attempted<br />
defilement of a minor – where the first appeal to the superior court of records was dismissed – claims that the appellant’s<br />
defence was not considered – whether the evidence adduced was sufficient to sustain the conviction<br />
James Karoki Wangeci v Republic ................................................................................................................................................... 47<br />
Appeal - second appeal against conviction and sentence - the appellant was convicted on counts of defilement and child<br />
trafficking-where the appellant’s acquittal on the count of defilement was reversed to a conviction-whether the superior<br />
court had jurisdiction to reverse the trial court’s finding of not guilty to guilty-whether the evidence adduced was sufficient<br />
to secure conviction on both counts-whether the appeal had merit-Penal Code sections 260, 261; Sexual Offences Act<br />
sections 8 (3), 18 (1) (2); Criminal Procedure Code section 215; United Nations Protocol to Prevent, Suppress and Punish<br />
Trafficking in Persons, Article 3 (a)<br />
Kenneth Kiplangat Rono v Republic ............................................................................................................................................... 45<br />
Charge – reduction of charge - charge sheet having been changed from reading “defilement of a minor” to reading<br />
“attempted defilement of a minor” – whether this would prejudice the appellant – claims that the language of the court<br />
was not stated when the charge was change and there was no interpretation – compliance with section 214 of the Criminal<br />
Procedure Code (Cap 75) – court record showing that the appellant pleaded not guilty when the alternate charge was<br />
read to him – effect of - Criminal Procedure Code section 214<br />
James Karoki Wangeci v Republic Criminal Appeal 146 of 2008 ..................................................................................................47<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
5
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
Constructive provocation – appellant having argued with one of the witnesses prior to the incident – lack of evidence as<br />
to whether the deceased had been involved in the argument – whether this could be construed as constructive provocation<br />
– whether such provocation could be availed to the appellant<br />
Josiah Afuna Angulu v Republic ...................................................................................................................................................... 44<br />
Evidence - evaluation of evidence-duty of the first appellate court to evaluate the trial court’s evidence.<br />
Dennis Muthee Chokera v Republic ................................................................................................................................................ 35<br />
Exhibits- procedure for production of exhibits- need for an exhibit to be identified before being produced as evidencewhere<br />
an exhibit was irregularly produced-where the irregular production of the exhibit did not affect any ingredient of<br />
the offence- where the court could still have enter conviction without the weapon being produced as exhibit - whether the<br />
appeal could be allowed on that ground in circumstances<br />
Chris Kasamba Karani v Republic ................................................................................................................................................... 46<br />
Second appeal - appeal against conviction and sentence - appellant convicted of robbery with violence-appeal restricted<br />
to matters of law- circumstances under which an appellate court would interfere with the decision of the superior court-<br />
Criminal Procedure Code (Cap 75) section 361<br />
Chris Kasamba Karani v Republic ................................................................................................................................................... 46<br />
Trial process - judgment and sentencing-trial court required to receive mitigating circumstances after finding the<br />
appellant guilty before proceeding to pronounce sentence- mitigating circumstances on record would be of importance<br />
when assessing an appropriate sentence on appeal<br />
Chris Kasamba Karani v Republic ................................................................................................................................................... 46<br />
ELECTION LAW<br />
Conduct of elections – non-compliance with the law – the scope of section 28 of the National Assembly and Presidential<br />
Elections Act - section 28 of the National Assembly and Presidential Elections Act providing that irregularities in the conduct<br />
of an election will not vitiate the result unless the irregularities were so serious that the election was not in accordance<br />
with principles laid in the law or the irregularities affected the result- appellant asking the court to invoke section 28 on<br />
grounds that the acts alleged against the electoral body that conducted the elections did not affect the overall results of the<br />
elections – whether the anomalies found in Forms 16A and17A were so pervasive as to affect the entire election - whether<br />
these anomalies could be cured by section 28 of the National Assembly and Presidential Elections Act – whether election<br />
was conducted in accordance with principles laid down by the electoral law<br />
James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49<br />
Election petition – appeal against High Court judgment – the High Court having nullified the election of the appellant as<br />
the Member of Parliament for the South Mugirango constituency on grounds that the election was not transparent, free and<br />
fair – the appellant having garnered the highest number of votes during the scrutiny and recount of votes – failure by the<br />
court to find the appellant guilty of an electoral offence - scrutiny and recount of the votes disclosed numerous irregularities<br />
among them unsigned unauthenticated Forms 16A, variation between Forms 16A and 17A, missing ballot boxes, broken<br />
ballot seals - the significance of Forms 16A – the effect of the failure by the presiding officer to sign or stamp Forms 16A<br />
without reasonable cause - Regulations 35A (5), 39, 40 (1) of the Presidential and Parliamentary Regulations<br />
James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49<br />
Interpretation of statute - interpretation of electoral laws and regulations – the interpretation of electoral laws is aimed<br />
at conducting free and fair elections – circumstances when an election can be declared void - test to be applied by the<br />
court in determining validity of an election - meaning of free and fair elections – meaning of transparent elections – duty<br />
of the electoral body to promote free and fair election - Section 17A of the National Assembly and Presidential Elections<br />
Act - section 42A (c) of the Constitution<br />
James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49<br />
Service – mode of service of an election petition – appeal – appeal against ruling by the High Court dismissing election<br />
petition on the ground that the petitioner had invoked the alternative mode of service under Section 20(1) (a) (iv) of the<br />
National Assembly and Presidential Elections Act without exercising first due diligence to serve the respondent personally<br />
– alternative mode of service having been effected within six days of filing the election petition - affidavit of service – High<br />
Court struck out the affidavit of service for having not been filed on time - whether an affidavit of service in an election<br />
must be filed in a prescribed manner – affidavit of service was filed after leave was granted by the court to file further<br />
affidavits to examine whether the 1st respondent had been served in accordance with the Act - whether the affidavit of<br />
service was erroneously struck out - Section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act<br />
Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others ....................................................................................... 48<br />
6 <strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
Service – mode service of an election petition - affidavit of service - whether the appellant’s affidavit of service dismissed<br />
by the High Court would have discharged the onus of showing on a balance of probability that the appellant exercised<br />
due diligence in serving the election petition – whether onus is on the petitioner to demonstrate that he exercised due<br />
diligence before invoking service through alternative mode of service – 1st respondent argued that the petitioner had<br />
ample time exercise due diligence before resorting to alternative means – whether the petitioner discharged the onus of<br />
showing diligence in serving the petition – due diligence – meaning of due diligence<br />
Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others ....................................................................................... 48<br />
Service - service of an election petition – appeal against dismissal of an election petition by the High Court on the ground<br />
that service had not been conducted within the requisite period after publication of results – production of conflicting<br />
evidence before the High Court through conflicting affidavits regarding the service of the election petition - appellant’s<br />
process server swearing in an affidavit that the election petition had been served within the given period of time –1st<br />
respondent also swearing in an affidavit that the service of election of election petition as alleged by the process server did<br />
not take place – parties whether failure by the 1st respondent to cross examine the process server amounted to admission to<br />
having been served the election petition - whether the appeal could be allowed on that ground- section 20 (1) (a)National<br />
Assembly and Presidential Elections Act.<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others ............................................................................................................. 56<br />
EMPLOYMENT – termination of – appeal against a decision finding the termination of appellant’s employment lawful and<br />
on disciplinary grounds – claims over rebate tickets – respondent having argued that the rebate tickets were concessionary<br />
and only a privilege to staff – claims that they could be changed or withdrawn or augmented by the respondent as deemed<br />
fit – circumstances under which the appellate court would find differently from a superior court – whether the appellant<br />
had an litigable entitlement to the tickets<br />
Jimi Masege v <strong>Kenya</strong> Airways Limited ............................................................................................................................................ 41<br />
EVIDENCE<br />
Corroboration - where corroborative evidence showed that the complainant was defiled despite the fact that the alleged<br />
perpetrator was not clinically examined-whether a conviction can solely be based on the corroborative evidence despite<br />
lack of clinical tests on the alleged perpetrator.<br />
Dennis Muthee Chokera v Republic ................................................................................................................................................. 38<br />
Identification evidence - principles that the court had to take into when dealing with evidence of identification where<br />
the accused claimed it was mistaken identity- appellant caught red handed-whether there was proper identification.<br />
Chris Kasamba Karani v Republic ................................................................................................................................................... 46<br />
Identification - accused seen and identified by witnesses in broad daylight-conviction based on such identification-whether<br />
such conviction is safe.<br />
Jackson Kyalo Munge v Republic ..................................................................................................................................................... 42<br />
LAND LAW - statutory notice - service of notice-statutory power of sale-provisions of the Registered Lands Act with regard<br />
to statutory power of sale-whether the statutory notices were valid-where first respondent’s statutory power of sale had<br />
accrued-Registered Land Act (cap 300) sections 65 (2), 74 (1) (a), 77 (4)<br />
Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42<br />
PROBATE AND ADMINISTRATION - letters of administration - appeal - interpretation of statute – interpretation of section<br />
3(5) of the <strong>Law</strong> of Succession Act - appeal from High Court judgment granting the respondent letters of administration<br />
– appellant arguing that a customary law marriage could not presumed where all the customary requirements had not<br />
been fulfilled – whether a marriage between the respondent and the deceased could be presumed under section 3(5) of<br />
the <strong>Law</strong> of Succession Act Marriage – presumption of marriage - rationale and genesis of the concept of presumption of<br />
marriage - circumstances in which a presumption of marriage is deemed to arise – respondent having cohabited with the<br />
deceased for over fifteen years and had three children – evidence supporting that the deceased supported the respondent<br />
financially – lack of evidence that dowry was paid under the Kikuyu customs of marriage – whether a marriage could be<br />
presumed under such circumstances<br />
Mary Wanjiru Githatu v Esther Wanjiru Kiarie Civil Appeal 20 of 2009 ................................................................................... 50<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
7
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
SENTENCE<br />
Sexual offence - indecent assault on a minor-sentence of 10 years imprisonment-legality of sentence -section<br />
M.B.O v Republic ................................................................................................................................................................................ 52<br />
Trafficking in narcotic drugs - appellant convicted and sentenced to imprisonment for 15 years for the offence of<br />
trafficking in narcotic drugs by the Chief Magistrate’s court – superior court subsequently setting aside the trial court’s<br />
sentence and sentencing the appellant to pay a fine of Kshs. 28 million or in default a twelve year jail term and a prison<br />
term of three and half years - whether the sentences imposed by the courts below were in consonance with section 4(a) of<br />
the Narcotic Drugs and Psychotropic Substances (Control) Act - when an appellate court can interfere with the sentence<br />
imposed by a lower court<br />
Kingsley Chukwu v Republic ............................................................................................................................................................ 55<br />
SUCCESSION LAW<br />
Intestacy - distribution of the estate of the deceased-customary law application-whether it was just to deprive a child of<br />
the deceased person of her father’s estate merely because she was a married daughter and vest the estate in a brother of<br />
the deceased-whether it was the intention of Parliament to exclude the application of intestacy provisions of the Succession<br />
Act (cap 160) to all agricultural land-<strong>Law</strong> of Succession Act (cap 160) sections 32, 33, 38; Judicature Act (cap 8) section<br />
3 (2); Constitution section 82 (1) (4)<br />
Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR ................................................................................. 36<br />
Probate and administration - grant of letters of administration - appeal against judgment of the superior court granting<br />
letters of administration to the respondents who were brothers of the deceased on grounds of customary law applicationwhere<br />
the respondents claimed that the deceased was holding the estate in trust for them-whether the superior court was<br />
right in applying customary law in disinheriting the appellants by virtue of being married daughters-whether the appeal<br />
had merit-<strong>Law</strong> of Succession Act (cap 160) sections 32, 33, 71; Registered Lands Act (cap 300) sections 28, 29; Judicature<br />
Act (cap 8) section 3 (2)<br />
Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR Civil Appeal No. 306 of 2004 ................................ 36<br />
TORT<br />
Libel – appeal against an award for damages paid to the appellant by the superior court – appellant having claimed that<br />
the respondent circulated a defamatory memo about him – respondent failing to refute the appellant’s claims – guidelines<br />
when testing matters of libel – principles guiding awards to damages – whether KQ was liable for defamation – whether<br />
the appellant was entitled to damages.<br />
Jimi Masege v <strong>Kenya</strong> Airways Limited ............................................................................................................................................ 41<br />
Negligence – damages for injuries suffered due to consumption of contaminated beer – appeal against liability and damages awarded<br />
in the consumer – whether the two lower courts were wrong in holding beer manufacturer liable – the rule in Donoghue v Stevenson –<br />
whether the principles enunciated in the rule were proved – whether duty of care by the appellant to the respondent had been established<br />
– whether negligence by the appellant if any resulted in injury to the respondent<br />
<strong>Kenya</strong> Breweries Ltd v Godfrey Odoyo ........................................................................................................................................... 43<br />
Negligence – liability – where the bottle that was analyzed was not the one consumed by the respondent – appellant alleging that<br />
there was no nexus between the contents of the bottle that was examined and the injury suffered by the respondent – whether report<br />
by <strong>Kenya</strong> Bureau of Standards was improperly obtained – effect of -<br />
<strong>Kenya</strong> Breweries Ltd v Godfrey Odoyo ........................................................................................................................................... 43<br />
8 <strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
HIGH COURT<br />
CIVIL PRACTICE AND PROCEDURE – stay of proceedings – application for an order of stay of proceedings – application<br />
filed by former directors of the first defendant under statutory management – failure by the former directors of the first<br />
defendant to disclose to the Court of Appeal the status of the first defendant- where the High Court had issued a restraining<br />
order against the defendants from interfering with the suit property - whether the Court of Appeal in granting an order of<br />
stay of proceedings in the High Court meant staying the restraining order issued by the High Court – whether the former<br />
directors of the first defendant had the legal capacity to appear before the Court of Appeal- whether the High Court’s<br />
restraining order superceded any other order issued by the High Court-Insurance Act (Cap 487) section 67(2) (1) - Court<br />
of Appeal Rules Rule 5(2)(b).<br />
Piedmont Investment Limited v Standard Assurance Limited & 2 others ................................................................................... 69<br />
CONSTITUTIONAL LAW<br />
Fundamental rights – rights of an accused person – right to be brought to court within a reasonable time after arrest<br />
–arrested person brought to court after 16 days - failure by the prosecution to offer an explanation–alleged breach of the<br />
right to protection against torture or to inhuman treatment-whether there was a violation of the petitioners constitutional<br />
rights – Constitution of <strong>Kenya</strong> section 72(3), (b) 74(1)<br />
Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67<br />
Fundamental rights and freedoms - breach of - award of damages - special damages neither pleaded nor provenexemplary<br />
damages-whether it was appropriate to award exemplary or aggravated damages- whether general damages<br />
could be awarded<br />
Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67<br />
Fundamental rights and freedoms - limitation period-time within which to seek redress for breach of the rights- need<br />
to bring proceedings as early as possible- where there was no limitation under the Constitution<br />
Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67<br />
Fundamental rights and freedoms - remedy for breach of- right of the applicant to sue for compensation under section<br />
72(6) of the Constitution- the provision an integral part of the Constitution-duty of the court to invoke that section where<br />
section 72(3) has been breached-whether failure to bring the applicant to court within the prescribed time only entitled<br />
him to compensation for breach of his rights- Constitution section 72 (6).<br />
Republic v Desmond Mukhaya Mulusa [2010] eKLR .................................................................................................................... 61<br />
Fundamental rights and freedoms - right to liberty - protection against arbitrary search-fair trial - freedom of assembly<br />
and association - protection from discrimination –whether there was enough evidence to prove that the said rights had<br />
been violated-Section 72(1), 76(1), 77 (a),80(1) and 82(3)<br />
Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67<br />
Fundamental rights and freedoms - rights of an accused person- accused person presumed innocent until proven guiltyprosecution<br />
submitting that if there was any breach of the constitutional rights of the accused the court had to apply the<br />
provisions of the Constitution in a wholesome manner- rights of the accused to be weighed as against the rights of the<br />
victim- whether the court could use section 71 of the Constitution as a counter-weight to the provisions of section 72(3)-<br />
obligation of the court to give effect to the section 70 of the Constitution- restrictions and limitations of constitutional rights<br />
–rights subject to respect for the rights and freedoms of others and for public interest – where public interest required<br />
the court to determine whether or not the accused was guilty-whether the violation of constitutional rights of an accused<br />
resulted to an automatic acquittal- Constitution sections 70, 71 and 72 (3).<br />
Republic v Desmond Mukhaya Mulusa [2010] eKLR .................................................................................................................... 61<br />
Fundamental rights and freedoms - rights of an accused person- right to be brought to court within 14 days after arrestapplicant<br />
accused of murder-detention of applicant in police custody for 6 months - onus on the police to demonstrate that<br />
the accused had been taken to court as soon as was reasonably practicable- delay caused by delay in conducting the postmortem<br />
examination of the victim’s body as the family could not be traced to identify the body- victim’s family inability to<br />
raise the mortuary fees and the post-mortem fees causing further delay in having the post mortem report released-whether<br />
the prosecution had explained the delay satisfactorily-Constitution sections 70 (a), 72 (3) (b) and 77<br />
Republic v Desmond Mukhaya Mulusa [2010] eKLR Criminal .................................................................................................... 61<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
9
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
Fundamental rights and freedoms - rules of procedure- Constitutional issue arising from the subordinate court- where<br />
the procedure required a party to raise the constitutional issue in proceedings before the subordinate court which would<br />
be then referred to the High Court for determination–where there was an alternative of filing it directly to the High Courtwhether<br />
the application was competent-the Constitution of <strong>Kenya</strong> (Supervisory Jurisdiction and Protection of Fundamental<br />
Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001, rule 9<br />
Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67<br />
Fundamental rights and freedoms –procedure-manner in which a claim for the violation of the constitutional rights<br />
should be brought - sufficiency of facts-failure to raise the claim at the preliminary stage-where the pleadings were<br />
supported by evidence -whether there was breach of any fundamental rights<br />
Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67<br />
Jurisdiction - jurisdiction of the High Court to deal with the issue of violation of constitutional rights-claim that the Truth,<br />
Justice and Reconciliation Commission (TJRC) could deal with the issue-whether the court could abdicate the responsibility<br />
to an inferior tribunal<br />
Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67<br />
CONTRACT - carriage by air - period of limitation in such contracts- appeal against the decision of the trial court declaring<br />
that the suit had been time barred and not based on contract-suit by air passenger against an airline operator - defendant<br />
refusing to allow the appellant access onto a connecting flight due to appellant’s lack of valid travelling documents- time<br />
within which the cause of action ought to have been brought -period of limitation being two years– interpretation of<br />
Article 29(2) of the Warsaw Convention-whether this was a special contract to which the <strong>Law</strong> of Contract did not apply -<br />
whether the suit was time barred-Carriage by Air Act (2 of 1993) - Civil Procedure Act (Cap 21) Section 3A- Civil Procedure<br />
Rules Order 6 Rule 13(1)(a -Warsaw Convention on Carriage by Air, Article 29 of the as amended by The Hague Protocol,<br />
(1995)<br />
Farida Abdullahi Ibrahim & 2 others v Gulf Air Limited [2010] Eklr ........................................................................................ 76<br />
CRIMINAL LAW<br />
Common intent - several persons acting in concert to execute a common action - mob beating of a suspected criminal-<br />
“mob justice”-necessary ingredients in proving common intent and motive-court position where evidence establishes that<br />
the accused person’s were acting jointly and or on common design-malice aforethought-whether failure to prove motive<br />
vitiated an accused persons conviction-whether it was necessary to prove motive as one of the elements in a criminal<br />
offence-whether the prosecution discharged its onus of establishing a prima facie case against both accused persons-Penal<br />
Code (Cap 63) 9, section 203, 204<br />
Republic v Peterson Karani Njogu ................................................................................................................................................... 73<br />
Defilement – defilement of a girl under the age of 18 years – appellant raising defence of retraction by admission, by<br />
stating that “the girl was agreeable to what I did to her”- circumstances under which a retraction would arise – whether<br />
a minor can have consensual sex – whether the evidence adduced was sufficient to sustain a conviction.<br />
Josephat Njue Solomon v Republic .................................................................................................................................................. 60<br />
Rape - appeal against a charge of rape-alternative charge of indecent assault-where three days had lapsed before the<br />
incident was reported-appeal on grounds that the appellant had been charged with a non-existent provision of the lawswhere<br />
the Sexual Offences Act (No. 3 of 2006) had already come into law at the time-Penal Code (Cap 63) section 140<br />
Joseph Mwangi v Republic ................................................................................................................................................................ 76<br />
CRIMINAL PRACTICE AND PROCEDURE<br />
Affidavit - amendment-whether an affidavit may be amended- claim that the affidavit sworn by the Investigating Officer<br />
explaining the delay was referring to a different case-whether there was need for the respondent to seek to either amend<br />
the affidavit or alternatively, to seek leave to file a supplementary affidavit -where the only lawful option would be to file<br />
a supplementary affidavit-whether the affidavit was defective<br />
Republic v Desmond Mukhaya Mulusa [2010] eKLR .................................................................................................................... 61<br />
Charge – framing of a charge for the offence of defilement –appeal against conviction and sentence of life imprisonment<br />
on a charge of defilement – grounds; that the magistrates trial court omitted to record the language used during trial,<br />
words in the particulars of the charge i.e “unlawful carnal knowledge” were not envisaged in the Sexual Offences Act –<br />
court’s record showing that the appellant understood and participated in the proceedings - law on use of language in the<br />
course of criminal proceedings – whether the phrase “causing penetration with a child” and “unlawful carnal knowledge”<br />
described the same act.<br />
Josephat Njue Solomon v Republic ................................................................................................................................................... 60<br />
10 <strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
Defence - defence of alibi-accused person raising defence of alibi-accused claiming that the complainants had a grudge<br />
against him-viability of the defence-whether the defence was an afterthought<br />
Republic v Peterson Karani Njogu ................................................................................................................................................... 73<br />
Retrial - application for retrial-witnesses in the original trial having testified without being sworn in-prosecution having<br />
proved its case against the appellant beyond reasonable doubt-circumstances under which a retrial would have been<br />
ordered-whether a retrial would prejudice the appellant.<br />
Charles Wanjohi Murage v Republic ............................................................................................................................................. 78<br />
Trial - trial conducted by two magistrates in succession – right of an accused person to have the case start afresh in such<br />
circumstances - accused person having asked the succeeding magistrate that the trial of the case should start afresh – request<br />
having been denied – whether the trial court had misdirected itself – Criminal Procedure Coe (Cap. 75) section 200(3)<br />
Joseph Mwangi v Republic ................................................................................................................................................................ 76<br />
Witness - prosecution witness-prosecution failing to call the investigating officer as a witness in the trial-other witness<br />
categorically placing the accused at the crime scene-circumstances under which the evidence of the investigating officer<br />
would have been required-effect of failing to call the investigating officer-whether the lack of evidence left a gap in the<br />
prosecution’s evidence<br />
Republic v Peterson Karani Njogu ................................................................................................................................................... 73<br />
Witnesses - witness testimony-manner in which witness testimony may be taken in court -record of the trial failing to<br />
show whether the witnesses had been sworn or affirmed before their evidence was received-circumstances under which<br />
witness could be allowed to testify without being sworn and or affirmed-first appellate court being in doubt as to whether<br />
the witnesses had been sworn in-person in whose favor the doubt ought to have been resolved-whether the appellant had<br />
been prejudiced by a conviction on unsworn evidence.<br />
Charles Wanjohi Murage v Republic .............................................................................................................................................. 78<br />
CUSTOMARY LAW – burial dispute – deceased wish to be interred/buried in her piece of land – defendant’s (deceased<br />
father- in -law) claim that he had a customary right to decide the burial place - Luo customary law in regard to burial<br />
of a married woman – claim by the plaintiffs that the defendant and his family mistreated the deceased during her life<br />
time and were therefore undeserving to bury her remains – effect of the deceased wish vis a vis Luo customary law on<br />
burial – factors the court should consider when applying customary law – whether in the circumstances the wishes of the<br />
deceased should be respected – Judicature Act (Cap 8)section 3 (2).<br />
Charles Onyango Oduke & Another v Samuel Onindo Wambi ................................................................................................... 66<br />
ELECTION LAW<br />
Ballot boxes - scrutiny of ballot boxes- integrity of nearly a third of ballot boxes in question- some ballot boxes tampered<br />
with in the period between the time the defunct Electoral Commission of <strong>Kenya</strong> (ECK) was disbanded and the constitution<br />
of the second respondent-whether the ballot boxes could be scrutinized and ballot papers recounted.<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
Election petition - parliamentary election - petition seeking to nullify and declare void the election of the first respondent<br />
as Member of Parliament for Makadara Constituency -irregularities in elections – petitioner citing several irregularities<br />
in the conduct of elections - whether the irregularities were sufficient to warrant nullification of the election- National<br />
Assembly and the Presidential Elections Act (Cap 7)<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ........................................................................ 58<br />
Election petition - parliamentary election- election petition seeking to nullify and declare void the election of the first<br />
respondent as Member of Parliament for Juja Constituency -irregularities in elections – petitioner citing several irregularities<br />
in the conduct of elections - whether the irregularities were sufficient to warrant nullification of the election- National<br />
Assembly and the Presidential Elections Act (Cap 7)<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
Election petition - standard of proof in election petitions- burden of proof on the petitioner-standard of proof slightly<br />
higher than the one adopted in civil cases but not as high as in criminal cases- standard of proof ordinarily applied by the<br />
court in civil cases where an allegation of fraud has been made -need for the court to be satisfied that the allegation of<br />
fraud had been properly established-whether the required standard of proof had been established<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
11
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
Election petitions -jurisdiction-High court’s jurisdiction in determination of election petitions-factors to be considered by<br />
the court- the Constitution, the National Assembly and the Presidential Elections Act, the Election Rules and Regulations<br />
-general principles recognized by the law as constituting the proper conduct of a valid election- nature of election petitionsan<br />
election a signification of the exercise of the democratic rights of the people to have a person of their choice represent<br />
them in the National Assembly- whether the court had jurisdiction to hear the matter-Constitution of <strong>Kenya</strong> Section 44-<br />
National Assembly and the Presidential Elections Act(Cap 7) Section 19<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
Election results - discrepancies between the presidential and civic elections - whether the difference was evidence of<br />
serious electoral malpractice that was apparent during the conduct of the elections- alteration of results- Form 16Asspecific<br />
results of candidates either cancelled or altered without the presiding officer countersigning the cancellation or<br />
alteration- no trace of the physical records of the election results - whether the cancellations and alterations in the Form<br />
16As produced in the court raised question regarding the veracity and authenticity of the said results - whether the first<br />
respondent had been validly elected as the member of parliament.<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58<br />
Elections - fair and free elections -right of a people to freely elect their representative in a credible electoral process - test<br />
as to what constitutes free and fair elections - internationally acceptable standard -whether the complaints made by the<br />
petitioner were such that, apart from establishing the particular electoral malpractice or irregularity, they impacted on the<br />
rights of the voters of the constituency to have a person of their choice represent them in the National Assembly - whether<br />
the election as conducted could be said to have been free and fair-Article 25 of the International Convention on Civil and<br />
Political Rights (1966)- Article 21 of the Universal Declaration of Human Rights<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
Electoral documents - statutory documents and forms - manner in which results are to be recorded - presiding officer<br />
required to record the total number of votes cast in favor of each candidate and to sign and seal the declaration set out<br />
in the Form 16A certifying the results –whether Form 16A which is not signed by Presiding Officer could constitute valid<br />
results which could be accepted for tallying by a Returning Officer - absence of Form 16A for most agents -Form 17A not<br />
complied with –certificate of winning being issued to the successful candidate before Form 17A - agents not allowed to<br />
verify the forms – whether the anomalies in the process of election results were so fundamental as to affect the results of<br />
the election.<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58<br />
Electoral documents - election result- manner in which results are to be recorded- Form 16A and Form 17A- Form 16As<br />
lacking the signatures of the presiding officers- persons other than presiding officers filling Forms 16A- need for all the<br />
presiding officers to sign and stamp the Form 16As for the same to be considered valid- statutory comments in the Forms<br />
16A- failure by the presiding officers to give reasons for the failure or refusal by the candidates or their agents to sign the<br />
Form 16A- completion of Form 17A- whether the third respondent accepted invalid results which he tallied and included<br />
in the final results as contained in Form 17A- Presidential and Parliamentary Elections Regulations (Cap 7 Sub Leg)<br />
Regulation 35A(1) (b), 35A(5)(b) 35A(7) and (8) 40(1)<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
Electoral malpractice – ballot boxes -ballot boxes received at tallying centre with seals broken – boxes carried by unknown<br />
persons - petitioner’s agents denied opportunity to accompany the ballot boxes from the polling station to the tallying<br />
station - the petitioner arrested when he raised the grievance– whether the parliamentary elections were conducted in<br />
free, fair and transparent manner.<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58<br />
Electoral malpractice and offence – code of conduct – allegation of breach of duty and code of conduct by the Electoral<br />
Commission and the Returning Officer-failure to serve impartially and independently in performance of their duties –<br />
where it is alleged that the Commission had been pressured by first respondent’s political party to declare the results<br />
which it believed to be false – whether the anomalies raised a question regarding the authenticity and veracity of the<br />
election results.<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58<br />
<strong>12</strong> <strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
Electoral offences and election malpractices – election posters- election placards and posters not disclosing the name<br />
and address of the publisher - whether the fact that a party to an election petition did not specify on the face of his election<br />
poster the name and the address of the printer or publisher could result in the nullification of an election- whether the<br />
petitioner had proved that allegation to the required standard of proof- Election Offences Act (Cap 66) section 11 (1) and<br />
11(1) (b)<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58<br />
Electoral offences and election malpractices – election posters- printing of election posters that do not disclose the<br />
name and address of the publisher - whether the fact that a party to an election petition did not specify on the face of his<br />
election poster the name and the address of the printer or publisher could result in the nullification of an election –code of<br />
conduct-conduct of the Returning Officer-Returning Officer alleged to have aided the first respondent gain unfair electoral<br />
advantage against the petitioner- bribery-the culprit a civic candidate in the said elections -whether the petitioner had<br />
proved those allegations to the required standard of proof-Election Offences Act section 11 (1) and 11(1) (b)<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
Electoral officials - Electoral Commission of <strong>Kenya</strong> (ECK) officials presiding over the nomination of both the parliamentary<br />
and civic candidates of a political party-whether by virtue of ECK participation in the parliamentary nomination, an<br />
impression was created that it was partial to that political party during the general elections- the Presidential and<br />
Parliamentary Election Regulations<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
ELECTION RESULTS - alteration of results - Forms 16A- results of specific candidates altered without the presiding officer<br />
countersigning the cancellation or alteration- need for electoral documents containing results to be verified by other<br />
parties, including the members of the public -whether the cancellations and alterations in the Form 16As produced in the<br />
court raised question regarding the veracity and authenticity of the said results- discrepancies between the presidential<br />
and civic elections -elections conducted from one voter’s roll- difference of over 5,000 votes between the parliamentary<br />
vote and the presidential and the civic vote - whether the difference was evidence of serious electoral malpractice that<br />
was apparent during the conduct of the elections.<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63<br />
EVIDENCE<br />
Admissibility of evidence - new evidence after cross examination-discretion of the court to refuse or allow the evidence-whether it<br />
was against the principles of justice to allow or admit the evidence.<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58<br />
Documentary evidence – P 3 form – court’s discretion to call the maker of a document to adduce evidence - Sexual<br />
Offences Act (2006) section 8 (1),(2) - Penal Code (Cap 63) – Evidence Act (Cap80) section 77.<br />
Josephat Njue Solomon v Republic ................................................................................................................................................... 60<br />
INTELLECTUAL PROPERTY – infringement of trademark rights – appeal against the decision of the Registrar of<br />
Trademarks to register the respondent’s trade name “SYNERCEF” – appellant’s contention that the trade name was<br />
phonetically similar in pronunciation and appeared visually similar to another registered trademark “ZINACEF” – whether<br />
there was infringement of trade mark rights - whether the appeal had merit – Trademark Act (Cap 506) sections 7,14,15,18<br />
(1),(3) and 52.<br />
Glaxo Group Limited v Syner-med Pharmaceuticals Ltd .............................................................................................................. 75<br />
JUDICIAL REVIEW<br />
Approbation and reprobation – relevance of the conduct of the applicant - applicant to approach the court with utmost<br />
good faith- applicant having been a beneficiary of the By-laws he purported to challenge-whether the applicant was<br />
entitled to the discretionary orders of Judicial Review<br />
Republic v Institute of Certified Public Secretaries of <strong>Kenya</strong> Ex Parte, Mundia Njeru Geteria ................................................ 72<br />
Certiorari - rules of procedure-time within which to institute proceedings-whether Order 53 rule 2 Civil Procedure Rules<br />
included anything covered by the principle of ultra vires or nullities or decisions made without jurisdiction-duty of the<br />
applicant to demonstrate that the decision was a nullity or was made without jurisdiction-whether the court had the<br />
jurisdiction to hear the matter- Civil Procedure Rules Order 53 rule 2<br />
Republic v Institute of Certified Public Secretaries of <strong>Kenya</strong> Ex Parte, Mundia Njeru Geteria ................................................ 72<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
13
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DIGEST OF CASES FEATURED<br />
Certiorari - ultra vires by- laws-applicant seeking to challenge by-laws made under the Certified Pubic Secretaries of<br />
<strong>Kenya</strong> Act -claim that the by-laws were a nullity and void having been made by the respondent (Institute of Certified Public<br />
Secretaries) in excess of its powers-whether the orders sought could be granted<br />
Republic v Institute of Certified Public Secretaries of <strong>Kenya</strong> Ex Parte, Mundia Njeru Geteria ............................................... 72<br />
Mandamus - application to compel the Registrar of Political parties to register the Party of Democratic Unity and issue it<br />
with a registration certificate- order of prohibition to bar the Registrar from declaring the party unlawful - requirements<br />
to be met before a party could be registered -whether the applicant had met all the mandatory requirements<br />
Isaiah Gichu Ndirangu v Registrar Of Political Parties [2010] eKLR ......................................................................................... 70<br />
Rules of procedure - pleadings - grounds to be relied upon in the Notice of Motion those pleaded in the statutory<br />
statement- applicant raising new grounds not pleaded-whether the new arguments were acceptable- Civil Procedure<br />
Rules Order 53 Rule 4 (1)<br />
Isaiah Gichu Ndirangu v Registrar Of Political Parties [2010] eKLR ......................................................................................... 70<br />
LAND LAW<br />
Jurisdiction of the Provincial Land Disputes Committee – where the Provincial Land Disputes Tribunal directed<br />
the sub-division of the appellant’s land and issuance of land title deeds to the respondent – whether the Tribunal had<br />
jurisdiction to interfere with the appellant’s proprietory rights – whether the Tribunal acted ultra vires the Land Disputes<br />
Tribunals Act –whether the appeal had merit- Land Disputes Tribunal Act of 1990 section 3(1).<br />
Issack Maina Murathe v Jesidah Wanjiru Murathe Civil Appeal No 87 of 2007 ........................................................................ 71<br />
Transfer of land – dispute as to title to land - claim that the second defendant had secured from the first defendant land<br />
through fraudulent means in violation of a court order - where the second defendant further transferred the suit land to<br />
a third party – whether the first and second defendants had legal capacity to transfer the land – inherent power of the<br />
High Court to rectify an act done in contempt of it’s orders - whether the third party was an innocent purchaser for value<br />
without notice.<br />
Piedmont Investment Limited v Standard Assurance Limited & 2 others .................................................................................. 69<br />
POLITICAL PARTY - registration of parties-requirements- a proposed party to have not less than two hundred members<br />
who were registered voters for purpose of parliamentary elections from each province - where the applicant could not<br />
comply with that requirement as the voters register had been done away with following the disbandment of the Electoral<br />
Commission of <strong>Kenya</strong> (ECK)-Constitution of <strong>Kenya</strong> (Amendment) Act section 41A (d) replacing the ECK with the Interim<br />
Independent Electoral Commission of <strong>Kenya</strong> (IIEC)-the voters register being done away with and IIEC mandated to compile<br />
a new register-requirement for registration of parties- Registrar declining to accept the applicant’s documents pending the<br />
compilation of a fresh register of voters -whether the Registrar had acted illegally in declining to register the applicant’s<br />
party- Constitution of <strong>Kenya</strong> (Amendment) Act, 2008, section 41A (d)-Political Parties Act sections 18, 19 and 23<br />
Isaiah Gichu Ndirangu v Registrar of Political Parties [2010] eKLR ............................................................................................ 70<br />
STATUTES<br />
Certified Pubic Secretaries of <strong>Kenya</strong> Act - promulgation of regulations under the Act-powers donated only to the<br />
Minister in charge-respondent purporting to promulgate regulations-whether the respondent had the power to make<br />
Regulations- provisions of the Act vis-ˆ-vis the by-laws- by-laws 27 to 38 inconsistent and in conflict with section 9 and<br />
the second schedule of the Act-by-laws purporting to provide for Council meetings and elections –provision already in the<br />
second schedule of the Act- whether the Regulations in relation to the elections of the meeting were a nullity ab initio-<br />
Certified Pubic Secretaries of <strong>Kenya</strong> Act (Cap 534) sections 7, 9 and 37<br />
Republic v Institute of Certified Public Secretaries of <strong>Kenya</strong> Ex Parte, Mundia Njeru Geteria ................................................ 72<br />
Interpretation of statutes - Public Authorities Limitations Act-inconsistency with the Constitution-limitation provisions<br />
under the Public Authorities Limitations Act –whether the Public Authorities Limitations Act could override the Constitution<br />
and be used to curtail rights provided under the Constitution - Constitution of <strong>Kenya</strong> section 3, Public Authorities Limitations<br />
Act<br />
Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67<br />
Subsidiary legislation – procedure in promulgating subsidiary legislation–gazettement- requirement that all subsidiary<br />
legislation to be gazetted- where there was no evidence that the impugned Regulations were ever gazetted as required by<br />
law-whether the regulations had the force of law-Interpretation and General Provisions Act, (Cap 2) Section 27<br />
Republic v Institute of Certified Public Secretaries of <strong>Kenya</strong> Ex Parte, Mundia Njeru Geteria ................................................ 72<br />
14<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
AG. EDITOR’S NOTE<br />
NOTE FROM THE AG. EDITOR<br />
Our esteemed readers,<br />
As it turns out, three months is a long time in law reporting. There have been quite a number of important developments<br />
since our last new-look edition of the <strong>Bench</strong> <strong>Bulletin</strong> (January-March edition) was published.<br />
Early in May, the Council sponsored and participated in the inaugural Uwazi Football<br />
Tournament organized by the International Commission of Jurists-<strong>Kenya</strong> (ICJ). The<br />
aim of the tournament, which drew participants from media, business, legal sector and<br />
private corporations, was to raise awareness and advance the campaign on the need for<br />
a Freedom of Information law.<br />
Later in mid-June, the Council’s Secretariat finalized the preparation of its first ever<br />
draft strategic plan through an all-staff retreat in Nyeri town. Once it is approved and<br />
adopted by the Board of the Council, the plan is to run from 2009-20<strong>12</strong> and will move<br />
the Council to a new level of organizational planning and excellence. Further particulars<br />
and developments regarding the draft strategic plan will be featured in the next edition<br />
of the <strong>Bench</strong> <strong>Bulletin</strong>.<br />
Also in June, the Council began the work of preparing the inaugural edition of the latest<br />
addition to its menu of legal publications - the KLR Monthly, a paper-back compilation of<br />
summaries of precedent-setting judicial opinions delivered by the Court of Appeal and<br />
the High Court of <strong>Kenya</strong> over every calendar month. KLR Monthly marks a shift in the<br />
Council’s law reporting calendar from yearly to monthly publication and will serve as<br />
Michael M. Murungi<br />
Ag. Editor/C.E.O.<br />
an authoritative source of case law in the build-up to the publication of the hard-bound book volume at the conclusion<br />
of the calendar year.<br />
Speaking of case law, considerable jurisprudence has emanated from the Court of Appeal and the High Court in the<br />
last three months, as the judicial opinions featured in this edition will reveal. In Republic v Chief Justice of <strong>Kenya</strong> & 6<br />
others ex parte ole Keiwua [2010] eKLR, I can do no better than High Court Judges M. Apondi, G. Dulu and W. Warsame<br />
when they state in their judgment: “this is a unique matter with fundamental implications on the jurisprudence of<br />
this country on exercise of constitutional powers affecting a judge, the Chief Justice and a sitting President of this<br />
country” and “we find this case standing in a place of its own in our jurisprudence.” Elsewhere, the Court of Appeal in<br />
Mary Wanjiru Githatu v Esther Wanjiru Kiarie [2010] eKLR, the Court of Appeal appears to be breaking new ground on<br />
the jurisprudence relating to presumption of marriages. Over the same period, both the Court of Appeal and the High<br />
Court have considered various matters of electoral law, most importantly the threshold of electoral malpractices that<br />
may lead to a nullification of a parliamentary election. These and other issues are featured in the case law covered in<br />
this edition.<br />
Finally, our last edition included a complimentary copy of a CD-ROM of the KLR Grey Book – a collection of thirteen<br />
statutes on procedural law. We have received highly positive comments and feedback, mainly from Judicial Officers,<br />
about the new-look <strong>Bench</strong> <strong>Bulletin</strong> and the CD-ROM, which we are glad to share with you in our new segment, ‘The<br />
Inbox’.<br />
Happy reading!<br />
M. M. Murungi<br />
Ag. Editor<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
15
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FAREWELL LUNCHEON HELD IN HONOUR<br />
OF THE IMMEDIATE FORMER EDITOR<br />
MRS. GLADYS B. SHOLLEI<br />
The immediate former Editor of the <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong> Mrs.<br />
Gladys B. Shollei accepts a gift from His Lordship The Hon. Mr.<br />
Justice J.E. Gicheru during a farewell luncheon held in her honour<br />
at a Nairobi hotel on April 16, 2010. From right to left: His<br />
Lordship, the Chief Justice and the Chairman of the National<br />
Council for <strong>Law</strong> Reporting; Mrs. Lydia Achode, the Registrar of<br />
the High Court; Mr. Michael Murungi, Ag. Editor/ C.E.O, NCLR;<br />
Mrs. Gladys B. Shollei, the immediate former Editor.<br />
Reproduced below is the keynote speech delivered by<br />
the Hon. Mr. Justice J.E. Gicheru, EGH, Chief Justice and<br />
Chairman of the National Council for <strong>Law</strong> Reporting, on<br />
the occasion of a farewell luncheon held in honour of Mrs.<br />
Gladys B. Shollei, the immediate former Editor and C.E.O<br />
of the Council on April 16, 2010, Nairobi.<br />
Ladies and Gentlemen,<br />
We are gathered here today, for this simple yet profound<br />
occasion, to celebrate the tenure of Mrs. Gladys Shollei,<br />
initially as the Assistant Editor of the <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong>,<br />
and subsequently as the Chief Executive Officer of the<br />
National Council for <strong>Law</strong> Reporting and the Editor of the<br />
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong>.<br />
Mrs. Shollei’s service at the Council started in February<br />
2001 and as you are all aware, ended honourably with<br />
her resignation on March 16, 2010.<br />
You will all agree with me that Mrs. Shollei’s nine-year<br />
tenure has been most fulfilling not only for the Council as<br />
an organization, but for the Judiciary as a whole. It was<br />
through her pioneering spirit and visionary leadership,<br />
that the Council rose from its humble beginnings in 2001<br />
to its present position as an internationally renowned<br />
publisher of legal information.<br />
More particularly, I wish to commend her for the following<br />
achievements:<br />
FAREWELL LUNCHEON<br />
of managers and staff, and instilled a positive,<br />
result-oriented work ethic;<br />
• She revived official law reporting in <strong>Kenya</strong>, after<br />
it had lapsed for over two decades, thus making<br />
a great contribution to not only access to public<br />
legal information and education, but also to the<br />
administration of justice, the transparency of the<br />
judiciary and access to justice;<br />
She went beyond the call of duty and moved<br />
the Council from being a traditional law<br />
reporter, to an institution that applies creative<br />
solutions and technology, in providing<br />
improved access to a broader menu of public<br />
legal information that includes, the <strong>Law</strong>s<br />
of <strong>Kenya</strong>, Bills of Parliament, Legal Notices,<br />
the Daily Cause List, the <strong>Kenya</strong> Gazette, legal<br />
articles and commentaries;<br />
• She placed <strong>Kenya</strong> on the international map,<br />
not only by making the <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
website the first website in Africa and among<br />
the few in the world providing the full text of<br />
national legislation free of charge, but by forging<br />
partnerships with international peers in law<br />
reporting, such as the Association of Reporters of<br />
Judicial Decisions, the Incorporated Council for<br />
<strong>Law</strong> Reporting for England and Wales, the Free<br />
Access to <strong>Law</strong> Movement, New York’s Leitner<br />
Centre for International <strong>Law</strong> and Justice, among<br />
others;<br />
• She significantly narrowed the gap in unreported<br />
cases, established a system of collecting and<br />
reporting current cases, launched an official law<br />
journal for <strong>Kenya</strong>, namely, the <strong>Kenya</strong> <strong>Law</strong> Review;<br />
established the <strong>Bench</strong> <strong>Bulletin</strong> to update judicial<br />
officers on the latest case law, and established the<br />
<strong>Bench</strong> Research Hotline, a research facility for<br />
receiving and processing legal research queries<br />
from Judicial Officers; and<br />
• Finally, as the Secretary to the Council, I believe<br />
I speak for all the Members when I say that Mrs.<br />
Shollei facilitated the Council’s meetings in a<br />
most organized and efficient fashion. But beyond<br />
all these, Mrs. Shollei has been our friend and<br />
our colleague, and I believe we will all also have<br />
the fondest memories of the moments that we<br />
shared with her. She still remains our friend and<br />
a friend of the Council, and I am pleased to learn<br />
that in her new role as the Deputy Chief Electoral<br />
Officer of the Interim Independent Electoral<br />
Commission, she is already partnering with the<br />
Council’s Secretariat on the publication of the<br />
Election Petition <strong>Law</strong> <strong>Reports</strong>. Mrs. Shollei, on<br />
behalf of the National Council for <strong>Law</strong> Reporting,<br />
I thank you for your exemplary service and wish<br />
you and your family God’s blessings in all your<br />
future endeavours.<br />
• She nurtured the Council’s Secretariat into a<br />
well-established and well-resourced institution,<br />
with a strong brand, a highly qualified team<br />
16<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
ICT DEPARTMENT<br />
KLR SHIFTS TO PAPERLESS OFFICE WITH ALFRESCO<br />
The significant problems we face cannot be solved at<br />
the same level of thinking that created them.<br />
~ Albert Einstein<br />
The National Council for <strong>Law</strong> Reporting has implemented<br />
Alfresco, a web-based cross-platform enterprise content<br />
management system that enables the automation of<br />
virtually all organizational operations.<br />
Web-based submission of Court Decisions<br />
and Cause Lists<br />
For a long time, the collection of judicial opinions from<br />
court stations outside of Nairobi (where the Council’s<br />
offices are located) has been a major challenge. When the<br />
Council began its operations, the opinions were collected<br />
exclusively in hard copy from the court registries. The<br />
opinions would be sent from the court station by courier<br />
and delivered at the Council’s offices in Nairobi where<br />
they would be retyped and scanned. Later, the Council<br />
came to an arrangement with the Judiciary whereby the<br />
opinions would be provided to the Council in soft copy<br />
files on external memory devices such as floppy disks<br />
and later on flash disks. The Council’s Collection Agents<br />
who are based at major court stations would then deliver<br />
the storage disks physically or email the opinions from a<br />
cybercafé where one was available within the precincts<br />
of the Court station.<br />
Today, with increased internet penetration and higher<br />
bandwidth, the Council has implemented a web-based<br />
Document Management System which introduces a<br />
more comprehensive and efficient method of tracking,<br />
collecting and forwarding judicial opinions and cause lists<br />
countrywide. The systems provide a secure web-based<br />
portal on which the Collection Agents can log in and<br />
submit the files on the flash disks containing the judicial<br />
opinions. Presently, the Collection Agents, who have been<br />
trained on how to use the system and have been issued<br />
with certificates of proficiency in the Enterprise Content<br />
Management System, access the web-portal at cybercafés<br />
located in their respective towns. However, plans are<br />
underway to provide them with laptop computers<br />
with internet access modems in order to improve the<br />
submission of the judicial opinions.<br />
With the skills and knowledge necessary to use a new<br />
web-based Document Management System which<br />
introduces a more comprehensive and efficient method<br />
of tracking, collecting and forwarding judicial opinions<br />
and court cause lists countrywide<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
Collection Agent’s Entry Screen<br />
A Collection Agent logs into his or her profile on the<br />
system using a secure user name and password. He or<br />
she then proceeds to key in the descriptors/metadata of<br />
the judicial opinions that they are about to submit, such<br />
as the case name, names of the parties, court station,<br />
date of delivery and presiding judge or judges. When<br />
all the metadata has been entered, the Collection Agent<br />
then attaches the file containing the judicial opinion and<br />
hits the ‘submit’ button. Immediately, the metadata and<br />
the case file will be in the system and available to the<br />
Data Entry unit at the Council’s headquarters as part of<br />
a workflow process that culminates in the publication<br />
of the judicial opinion on the Council’s website (www.<br />
kenyalaw.org).<br />
Mr. Michael Mayaka (centre), the Council’s Web & Systems<br />
Developer, presides over a practical training session for members<br />
of staff on the use of the new Enterprise, Alfresco Content<br />
Management System.<br />
17
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
The system creates a virtual workplace for the Council’s<br />
staff where they are able to interact in departmental<br />
and individual profiles/workspaces. Documents, ideas,<br />
communications and even virtual meetings are originated<br />
and concluded in the system. The system is highly secure<br />
and has a degree of scalability and customization that<br />
makes it ideal for both a small-sized organization as well<br />
as a large-scale enterprise with offices spread out across<br />
the globe.<br />
Ms. Esther Adero, a Collection Agent based in Eldoret, submits<br />
judgments using the web-based content management system<br />
from a cyber-cafe in Eldoret Town.<br />
The web-based system of submitting judicial cases<br />
has realized a number of important advantages<br />
for the Council:<br />
1. It is a faster and more efficient way of submitting the<br />
opinions<br />
2. It has brought savings on the costs of transportation,<br />
printing, photocopy and courier;<br />
3. It acts both as a conduit and as a reservoir of content<br />
as the records of the submitted opinions can be traced<br />
back in the system;<br />
4. It provides a platform for Collection Agents to assess,<br />
track and evaluate their collection record;<br />
5. It enhances the computer skills and knowledge of<br />
collection agents<br />
Because it can be integrated with the Council’s website<br />
front end, it will considerably reduce the lead time<br />
between the delivery of an opinion and its publication<br />
on the internet.<br />
The perfect paperless office: A screenshot of the Alfresco DMS<br />
showing the virtual workspaces for the Council’s departments<br />
Virtual Departmental Workspaces<br />
The IT Team successfully wound up the initial training of<br />
all staff in readiness for a full rollout of the system. After<br />
the first training of the Collection Agents, departmental<br />
training sessions were conducted for the Editorial,<br />
<strong>Law</strong>s of <strong>Kenya</strong>, Research & Development and Finance<br />
Departments.<br />
Universal Content Access, Collaboration and Control<br />
Enterprise Document Management implementing a<br />
paperless office environment<br />
The Alfresco System also features a web-based enterprise<br />
document management system (known as the NCLR<br />
DMS) which introduces a more comprehensive and<br />
efficient method of Document Management; Web Content<br />
Management and Collaboration.<br />
The system provides a collaborative content management<br />
framework where users can interact in real time. It<br />
provides an enterprise library which can serve as a<br />
central document repository and resource for shared<br />
users. It has an architecture that can create functionally<br />
distinct team and organizational spaces with crosscollaborative<br />
features such as wikis, cross-spatial tasks,<br />
feeds, discussion forums and social networking platforms.<br />
The framework that is in use is fully open source and has<br />
been successfully implemented in many private as well as<br />
government organizations all over the world.<br />
18<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
Service Desk<br />
NCLR has deployed the world’s leading opensource service desk solution with more than 70,000 installations worldwide.<br />
The key features of the service desk include:<br />
Service request & incident recording<br />
The system facilitates quick recording of incidents and service requests with a customer front-end, e-mail, telephone<br />
and other contact information and the creation, management and assignment of a service catalogue. It has quick ticket<br />
templates for fast responses to standardized customer request and able to link content from the knowledge base into<br />
recorded incidents.<br />
Workflow management<br />
Automatic follow-ups to existing incident-IDs with integrative knowledge base access for quick workarounds enables<br />
satisfactory customer service response. The system provides the tools for linking, merging and splitting of separate<br />
incidents and providing automated feedback to recurring requests. Customer care personnel can activate pending<br />
reminder functionalities and conduct a full text search of the entire system. Busy customer service desks find great<br />
value in the system’s time accounting and reporting with flexible mapping of service processes, workflows and approval<br />
process using Active Control Lists, queues, decisions fields with automatic routing of requests<br />
Customer Self Service:<br />
The system enables the separation of customer web frontend to relieve the service desk from routine tasks and provides<br />
user-based recording and tracking of own requests. It provides transparency about request status and work progress<br />
with view-on-request functionality and access to public or pre-classified FAQ articles.<br />
Seamless back-to-front-end website<br />
integration<br />
Using an open-source framework, the Council will soon be releasing a new version of its website that features<br />
more interactivity, easier and even more relevant searches, a friendlier and easier updates management<br />
interface, blogs, news management modules and forums.<br />
The website, which will feature WEB 2.0 technology, will mark a shift to a new internet experience providing a<br />
level of user contribution, interactivity and collaboration that is unprecedented for a public legal information<br />
website.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
19
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
New Offices<br />
HUMAN RESOURSE DEPARTMENT<br />
The Council will be moving from its current offices – Milimani Commercial Courts in Community where it<br />
has been based since 1994 to the newly renovated former Income Tax House in the next financial year. It is<br />
a spacious, modern, state of the art building. The Council will occupy the 4th floor. This move will solve the<br />
Councils work space limitations and contain the Councils’ growths plans.<br />
HR Policy Manual<br />
In consultation with DPM, the review of the Delinking report is under way with a view of establishing a<br />
Human Resources Manual to steer and regulate the Council’s operations, structures, and systems. These<br />
are guided by the Employment Act in force, government circulars from the minister, best practice and the<br />
Council culture. This document will go a long way in steering and the Council on course in staff matters. It<br />
will ensure that fairness and excellence upheld.<br />
HR Software.<br />
Our web developers have tirelessly worked on a new HR Information system software. This software has<br />
modules on staff data, leave management, training, recruitment and performance management. The system<br />
is expected to ease processes in the department through automation of procedures.<br />
The HRMIS will also provide various management reports required on a day to day basis as well as for<br />
monthly reports.<br />
20<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
ORGANISATIONAL PERFORMANCE INDEX (OPI)<br />
The National Council for <strong>Law</strong> Reporting has been a corporate member of <strong>Kenya</strong> Institute of Management (KIM) since<br />
February of 2007 and has participated in COYA awards both in 2007 and 2008.<br />
It is with this background that we are pleased to be fully involved in Organizational Performance Index programme,<br />
which was developed in response to feed back from organizations participating in the COYA, who called on KIM to<br />
refine the assessment methodology of organizations in order to emphasize the relationship between instilling smart<br />
business processes and generating strong business results.<br />
OPI is thus an excellence model that generates a rating (between 1 and 10) setting a minimum score that organizations<br />
must attain to remain competitive. This is on a rolling basis; meaning year in, year out the performance of our organization<br />
will be monitored.<br />
A good rating means that the organization has applied strategies that drive effectiveness and competitiveness. As NCLR,<br />
our mission is to provide access to public information to aid in administration of and access to justice, the knowledge<br />
and practice of law and development of jurisprudence. OPI will thus be an instrument to help us drive our values of<br />
professionalism, provide quality and excellent service, allow easy access to public legal information, reliability, integrity,<br />
innovation and team work and finally to be open, transparent and accountable with public resources.<br />
The thorough self assessment that NCLR will go through under the OPI, will:-<br />
• allow us to analyze our productivity<br />
• reveal our true performance enabling us to build relevant and targeted business strategies for the future<br />
• position our leadership teams to drive continuous improvement<br />
• empower us to benchmark our performance with industry peers and against international standards<br />
• provide forums for us to share our industry’s best practices<br />
• define our competitiveness with one great score<br />
Just recently, May 24 and 25 th 2010, Mutindi Musuva (Head of HR) and Racheal Mwaura (Ass. Projects officer)<br />
participated in the first COYA Inter company visit out of Nairobi. This was in Mombasa and the companies visited<br />
included <strong>Kenya</strong> Petroleum Refineries, who won best Human Resources Management-2009, Bamburi Cement who won<br />
the Environmental Management Practices Award and also 1 st Runners up Company of the Year Award 2009 and Mabati<br />
Rolling Mills who won Corporate Citizenship, Quality Management and Overall Company of the Year. The company visits<br />
is an opportunity for the participating companies to share known and proven management and leadership practices.<br />
We are looking forward to embracing OPI as we seek to sharpen our competitive edge.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
21
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
NCLR HOLDS FIRST STRATEGIC PLANNING<br />
RETREAT<br />
By Racheal Mwaura, Programme Officer<br />
DEPARTMENTAL REPORTS<br />
regulations and guidelines governing the affairs of state<br />
corporations and the formulation of a working draft/first<br />
version of the proposed strategic plan.<br />
One of the sessions during the Council Straff’s Strategic<br />
Planning Retreat<br />
Racheal Mwaura<br />
Programme Officer<br />
For an organization, the lack of a vision, mission,<br />
statement of values and a strategic plan results in a<br />
reactionary, uncoordinated and fire-fighting approach<br />
to strategic issues and frustrates the expectations of the<br />
organization’s stakeholders. Organizational strategic<br />
planning is the means by which an organization<br />
articulates its mandate and charts out the manner in<br />
which it proposes to hone its resources towards the most<br />
effective way of fulfilling that mandate.<br />
In order for it to be effective, a strategic plan needs to<br />
have the input, understanding and endorsement of all the<br />
organization’s employees, who are in fact an important<br />
constituency among an organization’s stakeholders.<br />
For a long time, the National Council for <strong>Law</strong> Reporting’s<br />
strategic plan has been subsumed under the larger<br />
Strategic Plan for the Judiciary, its parent ministry.<br />
However, best practices in organizational operations<br />
require that an organization, even a semi-autonomous<br />
state agency such as the Council, should have its own<br />
strategic plan embodying its vision, mission, values,<br />
functions and setting out a plan of activities for fulfilling<br />
those functions.<br />
In this regard and in order to align the National Council<br />
for <strong>Law</strong> Reporting with Vision 2030 and the Judiciary<br />
Strategic Plan 2009-20<strong>12</strong>, the Council’s staff retreated<br />
to the leafy and tranquil surroundings of Nyeri town<br />
between June 17-19 2010, to focus their minds on<br />
the formulation of the Council’s Strategic Plan for the<br />
period 2009-20<strong>12</strong>. The retreat was the culmination of a<br />
series activities undertaken by the Council in late 2009<br />
which included stakeholder consultation, departmental<br />
briefings, a review of laws,<br />
During the retreat, the Council’s staff had the benefit<br />
of the technical advice of Mrs. Florence Mutua from<br />
the Directorate of Personnel Management (DPM) and<br />
Mr. Kennedy Nyambati from the Inspectorate of State<br />
Corporations who provided invaluable input in the areas<br />
of personnel management and corporate governance<br />
respectively. The retreat was presided over by Mr. Michael<br />
M. Murungi, the Ag. Editor/CEO of the Council. It was<br />
moderated by Ms. Esther Nyaiyaki, the Ag. Snr. Assistant<br />
Editor while Ms. J. Kambuni, Ms. Njeri Kamau and Mr.<br />
Andrew Kiarie served as the rapporteurs.<br />
The working draft of the proposed strategic plan was<br />
subjected to the consideration of a full-plenary of the<br />
Council’s staff who made key contributions on the vision,<br />
mission, values, mandate, functions and strategic activities<br />
for Council. The retreat’s deliberations were informed by<br />
Vision 2030, the Judiciary’s Strategic Plan and a number<br />
of related documents, including the strategic plans of<br />
stakeholder institutions, the Constitution of <strong>Kenya</strong> and<br />
the laws and regulations governing the affairs of state<br />
corporations.<br />
Beyond presenting their views on the overall draft<br />
strategic plan for the Council, the staff cascaded<br />
the plan down to the departmental level with every<br />
department drawing from the draft organizational plan<br />
to formulate and present its own mission, functions,<br />
organogram, strategies and a plan of activities complete<br />
with budget and performance matrices. The plenary<br />
and departmental sessions gave ample opportunity for<br />
individual input ensuring that all departmental staff had a<br />
clear understanding of their role in the attainment of not<br />
only the Council’s mission but also the Judiciary’s vision<br />
as well as Vision 2030.<br />
22<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
The National Council for <strong>Law</strong> Reporting staff during the recent Strategic Planning Retreat held in Nyeri between June 17-19 2010.<br />
With them were Mr. K. Nyambati (seated third from left) from the Inspectorate of State Corporations and Mrs. F. Mutua (seated third<br />
from right) from the Directorate of Personnel Management in the Ministry of Public Service.<br />
By the close of the retreat, the deliberations had crystallized into a clear picture of what the members of the Council’s<br />
staff considered should be the direction in which the organization should be headed, the individual and departmental<br />
roles and activities necessary to steer towards the direction and an estimate of the resources required to get there.<br />
The curtain closed on the retreat with a presentation of certificates of participation to all the members of staff followed<br />
by an informal dinner.<br />
The Draft Strategic Plan that was the result of the retreat will be considered for adoption and/or amendment before<br />
a meeting of the Council’s Board.<br />
One of the sessions during the Council Straff’s Strategic<br />
Planning Retreat<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
23
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
TALENT BEYOND LAW REPORTING; NCLR’S PARTICIPATION AT THE<br />
‘UWAZI FOOTBALL TOURNAMENT’.<br />
NCLR Senior <strong>Law</strong> Reporter and<br />
Football Team Coach,<br />
Cornelius W. Lupao, gives team<br />
members dribbling tips.<br />
On May 1, 2010 the International Commission of Jurists-<strong>Kenya</strong> section (ICJ) held<br />
an inaugural football tournament dubbed “The Uwazi Cup” at the Impala Club<br />
Grounds. This tournament was co-sponsored by the International Commission<br />
of Jurists (<strong>Kenya</strong>) and the National Council for <strong>Law</strong> Reporting. By launching<br />
and hosting the annual Uwazi Football Tournament, ICJ <strong>Kenya</strong> sought to raise<br />
awareness and advance the campaign on the need for a Freedom of Information<br />
law. The tournament was convened for media, business, legal and corporate<br />
organizations.<br />
The theme for the tournament was “Information for Sustainable Development” and<br />
the guest of honor was Hon. Mutula Kilonzo Minister for Justice, National Cohesion<br />
and Constitutional Affairs. The tournament was a ‘’six a side” with teams allowed<br />
to have ten players each. Some of the participants included; the Standard Group<br />
LTD, the <strong>Kenya</strong> Human Rights Commission, the National Council for <strong>Law</strong> Reporting<br />
(<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong>), Transparency International and the <strong>Kenya</strong> Anti Corruption<br />
Commission, just to mention a few.<br />
The Council presented a formidable team from among its staff members, led by<br />
the Ag. C.E.O, Mr. Michael Murungi that felled many a team including Royal Media,<br />
which the Council beat 2 goals to nil, the <strong>Law</strong> Society of <strong>Kenya</strong>, which the Council<br />
beat 1 goal without reply and went on to draw against the Centre for Governance<br />
and Development, FIDA-<strong>Kenya</strong> and the International Commission of Jurists-<strong>Kenya</strong><br />
section, to emerge tops in the pool.<br />
Buoyed by an ecstatic cheering squad, the Council’s team soldiered on with<br />
determination to lift the trophy until it was narrowly bundled out of the tournament<br />
at the semi-finals. The Council‘s team, however left the grounds with heads high<br />
having had incredible fun and an opportunity to interact with a horde of professionals from other spheres.<br />
The National Council for <strong>Law</strong> Reporting’s football Team (NCLR) with its CEO, Mr. Michael Murungi (blowing Vuvuzella) pose for a<br />
group photo before the begining of “Uwazi Football Tournament”<br />
24<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
The Council looks forward to the up-coming Chief Justice’s Cup where it will, once again, put on display the staff<br />
members’ talent beyond <strong>Law</strong> Reporting.<br />
By Cornelius W. Lupao,<br />
Senior <strong>Law</strong> Reporter<br />
1<br />
2<br />
3 4<br />
1 and 2 above: The NCLR football team in celebration after hammering the Royal Media Group 2 goals to nil and the <strong>Law</strong> Society<br />
of <strong>Kenya</strong>, 1 nil respectively, while 3 and 4 the Council’s team Coach Mr. C W Lupao shouts instructions to the team in action.Below;<br />
Senior Ass. CEO, Esther Nyaiyaki (centre) shares a joke with Team members after a win.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
25
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
LAWS OF KENYA DEPARTMENT REPORT<br />
Mrs. Ann Asugah, Ag. Asst. Editor<br />
COMMITTEE ON DELEGATED LEGISLATION WORKPLAN AND STRATEGIC PLANNING<br />
WORKSHOP, MOMBASA , 4 th -7 th May 2010<br />
The National Council for <strong>Law</strong> Reporting (NCLR) was invited the by the Committee on Delegated Legislation of<br />
Parliament to its Work Plan and Strategic Planning Workshop in Mombasa on 4 th -7 th May 2010 to make a presentation<br />
on the development, maintenance and updating of a subsidiary legislation database. The <strong>Law</strong>s of <strong>Kenya</strong> Department<br />
was tasked with making the presentation to the Committee.<br />
The Committee on Delegated Legislation is one of the new Committees in Parliament established by the new Standing<br />
Orders under Standing Order 197 and mandated to;<br />
“ensure that statutory instruments are laid before the house as may be provided under any written law and scrutinize<br />
such instruments to ensure that they are consistent with the parent statute.”<br />
Mrs. Ann Asugah Ag. Ass. Editor (right), expounding a point during her Presentation to the<br />
Committee on Deligated Legislation<br />
Further, Standing Order 197 provides that unless otherwise provided or expressly by necessary implications under<br />
any written law, all subsidiary legislation shall be tabled before the House upon publication in the <strong>Kenya</strong> Gazette. The<br />
Committee may recommend that the House resolves that any particular subsidiary legislation be annulled.<br />
For the Committee to carry out its mandate effectively, it would require to have a working database of all subsidiary<br />
legislation made under all Acts of Parliament.<br />
NCLR being the delegatee of the Attorney General’s powers of law revision maintains a database of all laws of <strong>Kenya</strong><br />
which includes subsidiary legislation. During the workshop, the Committee members appreciated the strides made<br />
by NCLR in digitizing all legislation and availing the same for free on its portal www.kenyalaw.org. The workshop came<br />
up with a working draft of its strategic plan for 2009-20<strong>12</strong> and a work plan for its implementation.<br />
The Committee co-opted NCLR in its work plan and expressed its desire to establish a working relationship with<br />
NCLR in the area of developing and maintaining a database of subsidiary legislation. NCLR is committed to supporting<br />
Government institutions to attain their strategic objectives by ensuring the free access to updated national legislation<br />
in a timeously manner.<br />
26<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
DEPARTMENTAL REPORTS<br />
GREY BOOK ADVERT<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
27
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
Mr. Nicholas Okemwa, Snr. <strong>Law</strong> Reporter,<br />
Head of R & D Department<br />
DEPARTMENTAL REPORTS<br />
RESEARCH AND DEVELOPMENT DEPARTMENT<br />
UNITED NATIONS JURIDICAL YEARBOOK<br />
The National Council for <strong>Law</strong> Reporting (NCLR) as the official<br />
law reporter for the Republic of <strong>Kenya</strong> has a vast database of<br />
judicial decisions. It is for this reason that NCLR was requested<br />
by the Judiciary to identify and forward cases touching on the<br />
legal status or privileges and immunities of the United Nations<br />
and specialized agencies for the United Nations Juridical<br />
Yearbook of 2009.<br />
The United Nations Juridical Yearbook has been published on an<br />
annual basis reviewing legal developments starting from 1963.<br />
This was pursuant to resolution 1814 (XVII) of 18 December<br />
1962, where the General Assembly requested the Secretary-<br />
General to publish a juridical yearbook, which would include<br />
certain documentary materials of a legal character concerning<br />
the United Nations and related intergovernmental organizations.<br />
The General Assembly considered that one of the most effective means of furthering the development of international<br />
law consisted in promoting public interest in this subject and using the media of education and publicity to familiarize<br />
the general public with the principles and rules that govern international relations. It further considered that greater<br />
knowledge of the aims, purposes, and structure of the United Nations constituted another positive method of promoting<br />
the development of international law. The United Nations Juridical Yearbook is therefore of great import to all and<br />
sundry.<br />
The Research and Development Department was tasked with this request and undertook an analysis of the 2009<br />
decisions. The search yielded one result namely Tanad Transporters Ltd v United Nations Children’s Fund [2009]<br />
eKLR.<br />
Briefly the facts were that the applicant, who had been contracted by the respondent to provide transportation services,<br />
filed an originating summons pursuant to the provisions of the Arbitration Act and Section 3A of the Civil Procedure Act<br />
seeking to compel the respondent to submit to arbitration within twenty one days upon issuance of the court order and<br />
in the alternative, be granted leave to commence suit against the respondent. This was because, the applicant claimed,<br />
the respondent had declined service citing diplomatic immunity and had even denied access to the process server to its<br />
offices following a dispute regarding the said contract. The court however, directed the applicant to make arguments<br />
with regard to whether the court had jurisdiction to hear the application in light of the fact that the defendant was a<br />
United Nations organization and therefore was accorded immunity from civil proceedings by the Republic of <strong>Kenya</strong>.<br />
The applicant contended that the respondent, being a party to an agreement that had an arbitration clause, and which<br />
agreement was of a commercial nature, was precluded from invoking its diplomatic immunity<br />
The issue for determination by the court was whether the court had jurisdiction to entertain a suit where one party<br />
had immunity from both criminal and civil proceedings.<br />
Held:<br />
1. The transportation agreement between the applicant and the respondent related to the official function of the<br />
respondent. The respondent therefore had full diplomatic immunity from court proceedings. The <strong>Kenya</strong> Arbitration<br />
Act, 1995 and the Civil Procedure Act did not apply.<br />
2. The applicant could not therefore invoke the provisions of the said <strong>Kenya</strong>n municipal law to compel the respondent<br />
to submit to arbitration. The applicant had no choice but to commence arbitration proceedings under the UNCITRAL<br />
Arbitration Rules.<br />
3. The court lacked jurisdiction to hear and determine the dispute between the applicant and the respondent, even<br />
in the circumstances where the applicant established that there existed an arbitration clause. Further, the respondent<br />
had full diplomatic immunity from civil proceedings in the court under The Privileges and Immunities Act and the<br />
Vienna Convention on Diplomatic Relations, 1961.<br />
28<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FEATURE CASE<br />
The Constitutionality of the Kadhi’s Courts<br />
Jesse Kamau & 25 others v Attorney General [2010] eKLR<br />
Misc. Civil Application 890 of 2004<br />
High Court at Nairobi<br />
JG Nyamu JA & RVP Wendo, MJA Emukule JJ<br />
May 24, 2010<br />
This was an application filed in 2004 by 24 Clergy persons from various religious institutions challenging the proposal<br />
to include the Kadhi’s Courts in the then Proposed New Constitution of <strong>Kenya</strong> (commonly referred to as the Zero Draft<br />
or the Bomas Draft). The suit was filed against the Attorney General and the now defunct Constitution of <strong>Kenya</strong> Review<br />
Commission. Though the Supreme Council of Muslims was served with the application, it did not participate in the<br />
proceedings whether as an interested party or in any other capacity. The Hindu Council of <strong>Kenya</strong> had been served with<br />
the application and it filed an affidavit in which it raised concerns sympathetic to the applicants, basically that inclusion<br />
of the Kadhis courts in the Bomas Draft appeared to favour one religion against another. While the hearing of the<br />
application was pending, the Proposed Constitution was rejected at a public referendum in 2005 and the Commission<br />
was wound up. In fact, the hearing of the case started after the referendum had been done. Ms. Abida Ali Aroni, who<br />
was then the Chair of the Constitution of <strong>Kenya</strong> Review Commission (and at the time of the judgment a Judge of the<br />
High Court) filed a replying affidavit opposing the application. The Commission was represented by the Hon. James A.<br />
Orengo while the state was represented by Mr. A. Ombwayo, Principal Litigation Counsel.<br />
Among the declarations sought by the applicants:<br />
• That Section 66 of the Constitution of <strong>Kenya</strong> which introduces and entrenches Kadhis’ Courts in the Constitution<br />
infringed on the Constitutional rights of the applicants to equal protection of the law embodied in sections,<br />
70, 78, 79, 80 and 82 of the Constitution and to that extent was discriminatory, unconstitutional and should<br />
be expunged in its entirety from the Constitution;<br />
• That section 66 of was inconsistent with section 82 of the same Constitution and was therefore null and void;<br />
• That any provision similar to section 66 of the Constitution of <strong>Kenya</strong> in word or effect as proposed in the draft<br />
otherwise known as the “Zero” or “Bomas Draft” or any other draft infringed on the right of the applicants and<br />
was discriminatory, unconstitutional, null and void and of no effect;<br />
• That the enactment of the Kadhis’ Courts Act contravened the Constitution and was to that extent null and<br />
void;<br />
• That the financial maintenance and support of the Kadhis’ Courts from public coffers amounted to segregation,<br />
was sectarian, discriminative, unjust and amounted to separate development of one religion and religious<br />
practice and therefore unconstitutional.<br />
Some pertinent arguments<br />
• Jurisdiction: The state argued that the High Court had no jurisdiction to strike out section 66 of the Constitution<br />
and that the court had only jurisdiction to strike out a law other than a provision of the Constitution. Counsel<br />
urged that section 66 of the Constitution is an existing provision and cannot be struck out as being contrary to<br />
section 3 of the Constitution as no provision of the Constitution is superior or inferior to any other provision<br />
of the Constitution. It was argued that an order of the court nullifying any provision of the Constitution would<br />
itself be unconstitutional.<br />
• Separation of powers: That the application itself was an infringement of the doctrine of the separation of<br />
powers as envisaged under section 23 and 24 of the Constitution and that the doctrine of a secular state was<br />
not clearly defined in the Constitution.<br />
• That section 66 of the Constitution could only be altered in the manner prescribed by sections 46-49 of the<br />
Constitution, namely, through Bills passed by the National Assembly and assented to by the President. Counsel<br />
also argued that the Judicature was itself a creature of the Constitution and it had no power itself to alter any<br />
entrenched or other provision of the Constitution.<br />
• It was argued on behalf of the Commission that at the time the application was filed, the question whether<br />
or not it would be right to entrench the Kadhis’ Courts in the proposed Constitution was under negotiation<br />
before the Commission, Parliament, the Referendum and the President, and that these government organs were<br />
better suited to resolve the issue. Counsel for the Commission therefore submitted that the subject matter of<br />
the application was an issue beyond the courts and judicial processes.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
29
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FEATURE CASE<br />
Findings<br />
• The general and overarching principle of constitutional law as entrenched in Section 70 of our Bill of Rights<br />
(Fundamental Rights and Freedoms of the Individual) is that the personal law of one community, religious<br />
or otherwise, cannot override or qualify the Bill of Rights - fundamental rights guaranteed under the<br />
Constitution.<br />
• The doctrine of separation of Church and State provides that as between the State and religion each had its<br />
own sphere, the former of law making for the public good, and the latter moral welfare of individuals and their<br />
God or creator.<br />
• The court did not have jurisdiction to strike out section 66 of the Constitution even if it contradicted section<br />
82 of the Constitution. However, there are some provisions of the Constitution which are superior to others.<br />
For instance the Bill of Rights, which are also referred to as universal, inherent and natural rights, cannot be<br />
taken away by the State. In addition the courts have the jurisdiction to declare conflict or inconsistency in the<br />
constitutional provisions, or to declare whether or not the provisions are in conflict with any values, principles<br />
or purposes of a democratic constitution such <strong>Kenya</strong>’s.<br />
• The court would not have a role in the alteration of section 66 of the Constitution or any other section of the<br />
Constitution. The process of altering the section or indeed any other provision of the Constitution lay with the<br />
National Assembly. Whereas an amendment may be challenged in court once enacted into law, only Parliament<br />
has the necessary legislative mandate to alter the provision by way of amendment provided the provisions of<br />
section 47 on amendments are satisfied. The applicant’s prayer to declare section 66 of the Constitution void<br />
was therefore not tenable and it would be declined.<br />
• The Judicature too was a creature of the Constitution, and whereas it has power to interpret any provision of<br />
the Constitution (under sections 67, 84 and <strong>12</strong>3(8) of the Constitution), that power is limited to interpretation<br />
and constitutional judicial review but not alteration of the Constitution. Under its constitutional judicial review<br />
jurisdiction the court may grant a declaration in the event of conflict of provisions.<br />
• Parliament does not have the power to take away the basic structures of the constitutional ‘sanctum’ - the<br />
Bill of Rights, the security of tenure of Judges, which is the cornerstone of the rule of law, and the democratic<br />
provisions of Section 1A of the Constitution. Secondly, it is only the people who can enact a new constitution.<br />
• Since the drafters of both the Independence Constitution and the amendments thereto had in mind the<br />
territory that comprised the former Protectorate, it cannot be said that it was a mere error or omission when<br />
they retained language in the Constitution that the Kadhi’s courts were clearly restricted to operate within the<br />
former Protectorate which by definition extended to the ten miles beyond the Indian Ocean shoreline. For the<br />
Kadhis’ Courts Act, though well intentioned, to purport to extend the jurisdiction of Kadhis’ Courts to Nyanza<br />
and Western Provinces, Rift Valley, Central, Eastern Provinces and Nairobi, areas well beyond the former<br />
Protectorate, is clearly in breach of Section 179 (4) of the Independence Constitution, that is, Section 66(4) of<br />
the current Constitution.<br />
• The entrenchment of section 66 establishing the Kadhis’ Courts in the Constitution is certainly inconsistent<br />
with section 65 which grants Parliament power to establish other courts subordinate to the High Court. Section<br />
66 favoured one religion in preference to other faiths, Christianity, Hindu, Buddhist, Bohras, and Indigenous<br />
religions and culture.<br />
• Section 78 of the Constitution provides for freedom of religion, for a person to manifest and propagate his<br />
religion or belief, in worship, practice and observance, at his own expense. This provision covers all religious<br />
communities, including Muslims and that being the anchor provision on freedom of worship and the observance<br />
of religion, section 66(4) of the Constitution on Kadhis’ courts was superfluous. Territorial jurisdiction at this<br />
time and age curtails the freedom of worship or religion.<br />
• Section 4(2) (b) of the Kadhis’ Courts Act was inconsistent with section 66(4) of the Constitution and was<br />
therefore void to the extent of the inconsistency.<br />
• Section 66 of the Constitution on Kadhis’ courts was inconsistent with the secular nature of the state. The<br />
section does not advance the values and principles of the constitution which characterize a secular state.<br />
• The real anchor of freedom of worship and conscience in <strong>Kenya</strong> is not Section 66 of the Constitution but Section<br />
78, and for this reason, Section 66 is superfluous and does not add or offer any additional rights not covered<br />
by section 78 which applies to all faiths in <strong>Kenya</strong>. On the contrary at this time and age it restricts the operation<br />
of Kadhis’ courts to the ten mile former Protectorate whereas section 78 has no such territorial restriction<br />
as regards freedom of conscience religion, or worship etc. Section 66 is also in conflict with section 65 of the<br />
Constitution which contemplates subordinate courts of universal application in the Republic of <strong>Kenya</strong>.<br />
30<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FEATURE CASE<br />
Final Orders/Declarations:<br />
• “We grant the declarations sought in prayer 1 limited to declaring that section 66 is inconsistent with sections<br />
65 and 82 and in respect of section 82 is discriminatory to the Applicants in its effect.<br />
• As regards paragraph 2 of the prayers we find and hold that sections 66 and 82 are inconsistent with each<br />
other, and that section 66 is superfluous but it is not the court’s role to expunge it. It is the role of Parliament<br />
and the citizenry in a referendum.<br />
• As regards prayer 3, we hold and declare that any provision similar to section 66 in any other Draft of a<br />
Constitution in word or effect is not ripe for determination.<br />
• The enactment and the application of the Kadhis’ courts to areas beyond the 10 mile Coastal strip of the<br />
Protectorate is unconstitutional.<br />
• We grant prayer 5 that the financial maintenance and support of the Kadhis’ courts from public coffers amounts<br />
to segregation, is sectarian discriminatory and unjust as against the applicants and others and amounts to<br />
separate development of one religion and religious practice contrary to the principle of separation of state and<br />
religion (secularism) and is therefore contrary to the universal norms and principles of liberty and freedom of<br />
religion envisaged under sections 70, 78 and 82 of the Constitution and also against the principle of separation<br />
of state and religion as captioned by section 1A of the Constitution.<br />
• We also find and hold that the purported extension of the Kadhis’ courts through the enactment of the Kadhis’<br />
Courts Act beyond the former Protectorate areas contravenes section 64(4) and section 4(2) (b) of the Kadhis’<br />
Courts Act and is therefore unconstitutional, null and void to the extent of the inconsistency and for that reason<br />
a declaration in terms of prayer 6 is granted.<br />
• We grant a declaration that any form of religious courts should not form part of the Judiciary in the Constitution<br />
as it offends the doctrine of separation of state and religion.<br />
• We grant prayer 13 and declare that the entrenchment of the Kadhi’s courts in the Constitution elevates and<br />
uplifts the Islamic religion over and above the other religions in <strong>Kenya</strong> which is inconsistent with section 78 and<br />
82 of the Constitution and discriminatory in its effect against the applicants and <strong>Kenya</strong>ns of other religions.<br />
• We further find and hold that prayers 9, 10, 11, <strong>12</strong>, 14 & 15 relating respectively to the Bomas Zero Draft and<br />
an Islamic Agenda are matters which are moot and speculative and are not justiciable and decline to grant<br />
them.”<br />
Procedure in the Discipline And Removal of Judges<br />
Republic v Chief Justice of <strong>Kenya</strong> & 6 others ex-Parte Ole Keiwua [2010] eKLR<br />
High Court of <strong>Kenya</strong> at Nairobi<br />
M. Apondi, G. Dulu & M. Warsame JJ<br />
April 20, 2010<br />
Judicial Officer – judge - discipline and removal of judges – disciplinary procedure – power of the Chief Justice to make a<br />
representation to the President that the question of the removal of a judge ought to be investigated – how such power is to<br />
be exercised – role of the Judicial Service Commission before such a power is exercised – whether under the rules of natural<br />
justice and legitimate expectation the judge who is the subject of the representation should be accorded an opportunity to<br />
respond to the allegations against him before the representation is made – where the representation is made before the<br />
judge is heard and a Tribunal appointed to investigate the judge’s conduct – whether the making of the representation<br />
and the appointment of the Tribunal was unconstitutional – matters to which the jurisdiction of such a Tribunal should<br />
be restricted - Constitution section 62.<br />
Immunity – presidential immunity – incidence and scope of the President’s immunity from suit – whether the immunity was<br />
absolute – distinction between the President’s private and personal acts and official acts - whether a sitting President can<br />
be subjected to a court process for violation of the Constitution or the public interest – whether persons exercising duties<br />
embodying the political will of the President immune from judicial review for actions contrary to the law - Constitution<br />
Section 14.<br />
Immunity – judicial immunity – immunity of a judicial officer from suit – immunity of the Chief Justice – scope of the<br />
immunity – distinction between the Chief Justice’s duties as a judge and his duties as the administrator or head of the<br />
Judiciary - whether in the exercise of the latter duties he would be amenable to judicial review and to the supervisory<br />
jurisdiction of the High Court – power to make a representation to the President on the investigation of the conduct of a<br />
judge – how such power is to be exercised - Constitution section 62<br />
Judicial Review – nature and scope of judicial review – whether judicial review proceedings may be brought against a<br />
sitting President and/or the Chief Justice – Constitution section 62.<br />
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Judicial Review - practice and procedure – pleadings – pleadings to be filed and the time for filing them in judicial review<br />
applications - application for leave ‘to be accompanied by’ the statement of particulars and a verifying affidavit – where<br />
the affidavit and statement are filed on a different day after the application for leave by chamber summons – whether the<br />
application was valid – whether the respondent had been prejudiced – Civil Procedure Rules Order 53 rule 1(2).<br />
In March 2003, ‘following widespread and persistent allegations of corruption in the Judiciary’, the Chief Justice of<br />
the Republic of <strong>Kenya</strong> appointed the Integrity and Anti-Corruption Committee of the Judiciary chaired by the Hon. Mr.<br />
Justice A. Ringera, a Judge of Appeal (The Ringera Committee). The Committee’s terms of reference were to investigate<br />
the allegations, identify corrupt members of the Judiciary, recommend disciplinary or other measures and address<br />
any other related matters.<br />
The Committee carried out its work and submitted its report to the Hon. the Chief Justice in September, 2003. In the<br />
report a number of Judicial Officers were adversely mentioned. They included the applicant, who was both a Judge of<br />
the Court of Appeal of <strong>Kenya</strong> and the President of the East African Court of Justice. Upon receiving the report, the Chief<br />
Justice made a representation to the President, H.E. Hon. Mwai Kibaki under section 62(5) and 64(3) of the Constitution<br />
and by a Gazette Notice in December 2003, the President appointed a Tribunal whose terms of reference were:<br />
‘To investigate the conduct of judges of Appeal [implicated in the Ringera Committee Report] including, but not<br />
limited to, the allegations that the said judges of Appeal have been involved in corruption, unethical practices<br />
and absence of integrity in the performance of the functions of their office [and] to make a report and its<br />
recommendations thereon……In the meantime, the said Judges of Appeal stand suspended from exercising<br />
the functions of their office with immediate effect’. (Emphasis supplied).<br />
About a year after his suspension, the applicant was served with an undated list of allegations that were according to<br />
the Tribunal, to constitute the subject matter of its investigations. The applicant then filed judicial review proceedings<br />
seeking orders of certiorari, judicial review and mandamus against the Hon. the Chief Justice (the 1st respondent), the<br />
members of the Tribunal and its Assisting Counsel (the 7th respondent). The application was grounded on two main<br />
grounds: that the list of allegations before the Tribunal was illegal, unconstitutional and outside the mandate of such a<br />
Tribunal as it did not flow from any representation made to the President by the Chief Justice; and that the Tribunal’s<br />
investigation would be contrary to the Constitution, natural justice and the legitimate expectation of the applicant as<br />
he had not been afforded the opportunity to rebut any allegations against him before the representation was made to<br />
the President. The applicant also set out the charges leveled against him by the Tribunal and challenged their validity<br />
and justiciability.<br />
State Counsel representing the 1 st -6 th respondent raised a preliminary objection that the application did not comply<br />
with Order 53 rule 1 (2) of the Civil Procedure Rules which required an application for leave to file judicial review<br />
proceedings to be accompanied by a statement setting out the name, description of the applicant, the reliefs sought,<br />
the grounds on which it is sought and an affidavit verifying the facts relied on. The affidavit and the statement had<br />
been lodged a day before the Chamber Summons application.<br />
The second objection was that the High Court had no jurisdiction to entertain the application because one of the<br />
respondents was the Chief Justice, who was both a Judge and the holder of a constitutional office, and his exercise of<br />
constitutional powers as the administrator of the Judiciary could not be questioned by the High Court through judicial<br />
review. Secondly, it was submitted that to question the procedure adopted by the Tribunal was an affront to the President<br />
who was the donor of the power of the Tribunal to make rules of procedure, and that therefore to question the members<br />
of the Tribunal was to challenge the President in the exercise of his constitutional powers.<br />
Counsel assisting the Tribunal also raised a preliminary objection that he had been wrongly and improperly joined<br />
into the proceedings.<br />
Held:<br />
1. The affidavit and the statement accompanying the judicial reciew application were additional and complementary<br />
to the Chamber Summons and where they are lodged a day before the Chamber Summons that does not change or alter<br />
the validity of the Chamber Summons.<br />
2. Further, the administration of justice requires that the substance of disputes should be investigated and decided<br />
on their merits and that any procedural error or lapses should not be used by a party to defeat the case of the other<br />
party unless there is evidence that he has suffered or is likely to suffer substantial injustice or prejudice. There was<br />
no injustice or prejudice that was suffered by the respondent as a result of applicant’s failure to file all the documents<br />
on the same day and to ensure that the application for leave was accompanied by a verifying affidavit and statement<br />
of facts.<br />
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3. Moreover, nothing could take away the court’s inherent power to do justice. To allow the respondents’ preliminary<br />
objection would not inspire confidence and good sense in the administration of justice. Justice demanded that the<br />
Court should dismiss the objection.<br />
4. <strong>Kenya</strong>’s legal system is primarily intended or designed to give effective remedies and reliefs whenever the<br />
Constitution of <strong>Kenya</strong> is threatened with violation. As a part of reasonable, fair and just procedure to uphold the<br />
constitutional guarantees, the right to a fair trial entails a liberal and dynamic approach and not rigid and rudimental<br />
ways in order to ensure the grievances of an individual are addressed by the court no matter the name and the identity<br />
of the transgressor.<br />
5. When the law imposes on the Executive legally prescribed duties and responsibilities the performance of which<br />
depends upon the enhancing or handling of public interest, the political officers of the executive must act according<br />
to the laws of the land. If public officers including the President fail to act, and their failure harms the interests of the<br />
public and rights of individual citizens, their actions or omissions are subject to judicial review.<br />
6. The immunity from civil and criminal proceedings given to the President under section 14 of the Constitution cannot<br />
be absolute and is only meant to protect the interest of the wider citizens who have a stake in the presidency or who<br />
have elected the president to be the symbol of unity and protection of collective and individual rights of all citizens. The<br />
rationale for official immunity applies where only personal and private conduct by a president is at issue. It means that<br />
there shall be no case in which any public official can be granted any immunity from suit from his unofficial acts.<br />
7. The spirit and intention of the Constitution did not impose a blanket immunity that a sitting President cannot be<br />
sued for failing to observe the law or failing in his responsibility to do an act. A sitting President can be subjected to a<br />
process of a court when there is a clear violation of fundamental rights and environmental issues. If a sitting president<br />
pertinently and grossly contravenes a clear provision of the Constitution, he cannot be shielded from the intervention<br />
of the court by way of judicial review or declarations under section 84 of our Constitution.<br />
8. A party affected by the decision of a sitting president can rightly and legitimately seek the intervention of the High<br />
Court for redress or remedy by way of judicial review or by way of constitutional declaration. A constitutional office<br />
holder who is wrongly or illegally sacked by a sitting President can approach the High court by way of judicial review<br />
for redress.<br />
9. Judicial review proceedings are neither civil nor criminal proceedings and therefore cannot possibly fall within<br />
the ambit of section 14(2) of the Constitution and are therefore excluded from the protection afforded therein to the<br />
President against civil proceedings.<br />
10. In so far as the President appointed the tribunal and in so far as he was not a party to the Judicial Review<br />
proceedings, the Court was not in a position to say there was an omission that was directly committed by the president<br />
the case at hand.<br />
11. While the Chief Justice was immune from suit for matters directly related with exercise of his judicial functions,<br />
in making the representation to the President for the appointment of a Tribunal to investigate a judge under section<br />
62(5) of the Constitution, the Chief Justice does not exercise a judicial function but a constitutional and administrative<br />
function as the head of the Judiciary, for which he would be amenable to the supervisory jurisdiction of the High<br />
court and to judicial review orders. In the exercise of his constitutional mandate, the Chief Justice is amenable to the<br />
supervisory jurisdiction of the High Court.<br />
<strong>12</strong>. Counsel assisting the Tribunal was not a member of the Tribunal as he had not been gazetted as such. He was not<br />
an authority, public or quasi-judicial body to make a decision in the matter affecting the applicant. He did not investigate,<br />
make a report and/or make an order against the respondent. His role was to assist and he remained a servant of the<br />
tribunal in the performance of its mandate. He was therefore wrongly and improperly joined into the proceedings.<br />
13. A judge may only be removed from office in accordance with section 62 of the Constitution. Corruption or related<br />
complaints against a judge is a factor that there exists circumstances that would make him unable to perform his<br />
constitutional functions as a judge. A Judge can be removed from office by the President if the question of his removal<br />
has been referred to a tribunal and the tribunal has recommended to the President that the judge ought to be removed<br />
from office for inability or for misbehavior.<br />
14. Under section 61(2) of the Constitution, a Judge is appointed after the President has received the advice of the<br />
Judicial Service Commission (JSC) that a person is fit and competent to hold the office of a Judge. When a question<br />
arises as to the removal of a Judge, it is essential to seek and obtain the advice, guidance, contribution and direction of<br />
the same body that gave the advice to the President that it was okay to employ him in the first instance. Since the Chief<br />
Justice as the Chairman of the JSC had mandated the Ringera Committee to conduct investigations into the conduct of<br />
judicial officers, the JSC ought to have been the first branch that ought to have authorized the next step.<br />
15. The role of the JSC would be to determine whether the act complained about is of the nature and degree to<br />
qualify as misconduct sufficient to set in the processes that may lead to an adverse representation being made to the<br />
President. Such an examination would include seeing and hearing the complainant and the Judge separately for that<br />
would serve to inform and enhance a balanced and proper evaluation of the circumstances that has arisen which is<br />
likely to lead to removal of a Judge.<br />
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16. There was no evidence that the JSC ratified the report of the Ringera committee before the Chief Justice exercised<br />
his constitutional powers to make a representation to the President to appoint the Tribunal.<br />
17. The Chief Justice and/or the JSC were perfectly within their powers to appoint the Ringera Committee and the<br />
Committee was perfectly within its terms to collect information concerning corruption affecting judicial officers. In<br />
receiving the report from the Committee, the Chief Justice was exercising ministerial powers and in implementing the<br />
report as when he made a representation to the President, he was exercising constitutional powers conferred under<br />
section 62 (5) of the Constitution.<br />
18. The representation to the President to appoint a Tribunal is such a grave and serious matter with severe<br />
consequences of likely to remove a Judge from office that it is mandatory for the Judge to be given a hearing either by<br />
the JSC or by the Chief Justice before the representation is made to the President. The Judge ought to be heard by the<br />
JSC prior to the commencement of the removal exercise. Though the Constitution was silent on this, a presumption<br />
arose that the Legislature did not intend to deny natural justice to the applicant or to any other Judge.<br />
19. The Chief Justice had powers to make a representation to the President when a situation arises for the removal of<br />
a judge. However, in this case he had done or failed to do something in the course of his mandate which was of such a<br />
nature that his decision was a nullity. He made a decision which he had no power to make by failing to give the applicant<br />
an opportunity to be heard in accordance with the principles of natural justice.<br />
20. The applicant had a legitimate expectation to be given an opportunity to answer the charges against him before<br />
the Chief Justice exercised his constitutional responsibility under section 62(5) of the Constitution and for the Tribunal<br />
to give him the nature of the charges and complaints immediately it was gazetted and not one year down the line.<br />
21. The Chief Justice had no jurisdictional powers to make a representation to the President and equally the President<br />
had no jurisdictional powers to appoint a tribunal when he was not supplied with a written representation showing<br />
the instances of misconduct or misbehavior that were allegedly committed by the applicant and that were to be<br />
investigated by the tribunal.<br />
22. The President had no powers to empower a tribunal to conduct an inquiry or investigation other than or outside<br />
the representation he received from the Chief Justice. The inclusion of the words ‘including but not limited to’ in the<br />
gazette notice appointing the Tribunal was a contravention of constitutional powers of the President. In essence the<br />
powers of the President were restricted to the representation he received from the Chief Justice.<br />
23. The tribunal misconstrued the words in the gazette notice “but not limited to” by purporting to gather evidence<br />
and engaging investigators to sustain what they were calling charges against the applicant. That power was ultra vires<br />
the Tribunal’s mandate and therefore illegitimate and an illegality. The engagement of the tribunal in a mandate outside<br />
the Constitution was an illegality and unconstitutional.<br />
Certiorari issued to quash the decision of the Chairman of the Tribunal commanding the applicant to appear before the<br />
Tribunal and the decision of the Assisting Counsel to the Tribunal to draw and lay an undated list of allegations against<br />
the applicant;<br />
Prohibition issued to prohibit the Chairman and Members of the Tribunal from commencing or continuing to carry on<br />
the investigations into the conduct of the applicant; and<br />
Mandamus issued directing the Chief Justice to follow the letter and spirit of the Constitution and the rules of natural<br />
justice if there is any question of the removal of the applicant.<br />
Advocates:<br />
Mr. S. Mwenesi for the Applicant<br />
Mr. A. Ombwayo, Principal Litigation Counsel, for the 1st-6th Respondent.<br />
Reported by M.M. Murungi.<br />
34<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Corroboration of Evidence in Defilement Cases<br />
Dennis Muthee Chokera V Republic<br />
Court of Appeal, at Nyeri.<br />
S E O Bosire, E M Githinji & J G Nyamu.<br />
Criminal Appeal No. 487 of 2007<br />
June 25, 2010.<br />
Reported by Cornelius W Lupao<br />
Case History<br />
Evidence-identification-where victim identified the offender with the help of light from a hurricane lamp-whether<br />
such light could be said to be sufficient for proper identification.<br />
Evidence-corroboration-where corroborative evidence showed that the complainant was defiled despite the fact that the<br />
alleged perpetrator was not clinically examined-whether a conviction can solely be based on the corroborative evidence<br />
despite lack of clinical tests on the alleged perpetrator.<br />
Criminal Practice and Procedure - evidence- evaluation of evidence-duty of the first appellate court to evaluate the<br />
trial court’s evidence.<br />
Constitutional <strong>Law</strong> - constitutional right-allegation of violation of constitutional right-alleged violation being pleaded<br />
as an afterthought - effect of.<br />
The Hon. Mr. Justice<br />
S. E. O. Bosire<br />
This was a second appeal against conviction and sentence for the offence of defilement of a girl<br />
under the age of 16. The appellant’s main grounds of appeal were that his constitutional rights<br />
were violated since he was held in police custody for three days beyond the Constitutional<br />
limit of 24 hours as set out in section 72 of the Constitution without any explanation and<br />
therefore his trial was a nullity; that the intensity of the light from the hurricane lamp which<br />
was used by the complainant to identify him or to recognize him was not ascertained by<br />
the court and therefore there was a possibility of mistaken recognition; that the superior<br />
court erred in inferring that failure by the appellant to cross-examine some witnesses i.e<br />
PW1, PW2 and PW3 meant that the appellant was the culprit; that the superior court failed<br />
in not addressing the fact that no matching tests were conducted on the appellant and that<br />
only clinical tests were selectively done on the complainant and finally that the superior<br />
court failed to sufficiently evaluate the evidence on record hence reached a verdict that was<br />
against the weight of the evidence.<br />
On its part, the prosecution stated that the evidence presented was overwhelming; that the appellant was identified<br />
by recognition, the hurricane lamp having provided sufficient light for the purpose of identification and immediate<br />
recognition and that the appellant never raised the ground of infringement of his constitutional right in the trial court<br />
or in the superior court where he had engaged the services of an advocate. It also added that the sentence was well<br />
merited.<br />
Held:<br />
1. The alleged failure of the court to consider the intensity of the light from the hurricane lamp could not be sustained<br />
since the appellant had earlier in the day spoken to the complainant in a manner which suggested an intention to<br />
have sexual intercourse with her. The appellant had told the complainant that he was “taking cows to her mother”<br />
meaning that the appellant had designs to marry the complainant. In addition the complainant had ample opportunity<br />
to recognize the appellant.<br />
2. The allegation that the appellant did not cross-examine certain witnesses could not arise since the superior court<br />
had made reference to it and because cross-examination had formed the heart of the case before the court.<br />
3. The failure to have the appellant clinically tested, though ideal, was not fatal to the charge of defilement since the<br />
clinical evidence contained in the P3 form inter alia, confirmed penetration although the complainant was taken to<br />
the hospital long after the incident. In addition, the two courts below accepted the evidence of the complainant as<br />
true and the clinical evidence was corroborative of the complaint’s story. It did not stand alone; it was reinforced by<br />
the direct evidence of the complainant.<br />
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FROM THE COURTS — COURT OF APPEAL<br />
4. The record reflected a very careful evaluation of the evidence hence; the superior court discharged the duty as<br />
the first appellate court.<br />
5. The alleged violation of the appellant’s Constitutional rights was an afterthought in that had the appellant raised<br />
the challenge in the trial court or the superior court, the State would have had the opportunity of explaining the alleged<br />
detention. Failure by the appellant to raise the alleged violation of his rights at the earliest opportunity in the two<br />
courts below constituted a waiver of such rights<br />
Appeal dismissed.<br />
Grant of Letters of Administration<br />
Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR<br />
Civil Appeal No. 306 of 2004<br />
Court of Appeal at Nyeri<br />
P. K. Tunoi, S. E. O. Bosire & J. G. Nyamu, JJA.<br />
June 24, 2010<br />
Reported by Nelson Tunoi<br />
Case History;<br />
(An appeal from the judgment/order of the High Court of <strong>Kenya</strong> at Nyeri (Okwengu J.) dated 25th July, 2003 in H. C.<br />
Success. Cause No. 283 of 1999)<br />
The Hon. Mr. Justice<br />
P. K. Tunoi<br />
Succession law-probate and administration-grant of letters of administration-appeal against<br />
judgment of the superior court granting letters of administration to the respondents who were<br />
brothers of the deceased on grounds of customary law application-where the respondents<br />
claimed that the deceased was holding the estate in trust for them-whether the superior court<br />
was right in applying customary law in disinheriting the appellants by virtue of being married<br />
daughters-whether the appeal had merit-<strong>Law</strong> of Succession Act (cap 160) sections 32, 33, 71;<br />
Registered Lands Act (cap 300) sections 28, 29; Judicature Act (cap 8) section 3 (2)<br />
Succession law-intestacy-distribution of the estate of the deceased-customary law applicationwhether<br />
it was just to deprive a child of the deceased person of her father’s estate merely because<br />
she was a married daughter and vest the estate in a brother of the deceased-whether it was<br />
the intention of Parliament to exclude the application of intestacy provisions of the Succession<br />
Act (cap 160) to all agricultural land-<strong>Law</strong> of Succession Act (cap 160) sections 32, 33, 38;<br />
Judicature Act (cap 8) section 3 (2); Constitution section 82 (1) (4)<br />
The appellants, who were the surviving daughters of the deceased, lodged an appeal against the decision of the<br />
superior court confirming the grant of letters of administration to the respondents, who were the brothers of the<br />
deceased. The deceased had died intestate leaving two parcels of land registered in his own name. The respondents<br />
alleged that one of the properties was held in trust by the deceased on his own behalf and his brothers. The superior<br />
court held the view that the respondents were the rightful heirs who survived the deceased since the appellants were<br />
married and were not entitled to inherit the deceased’s estate. The effect of the decision of the superior court was that,<br />
although the appellants were children of the deceased, they did not get any share of their father’s estate. During the<br />
appeal, counsel for the appellants contended that sections 28 and 29 of the Registered Lands Act provided that the land<br />
registered under the Act belonged to the registered owner absolutely and therefore customary claims were excluded.<br />
He further argued that the issue of trust should not have been raised in the succession proceedings. The main issue<br />
for determination was whether the superior court was right in applying customary law in disinheriting the appellants<br />
merely because they were married daughters.<br />
Held:<br />
1. The application of the law on intestacy is excluded only in respect of agricultural land which falls within such areas<br />
as have been specified in a Gazette Notice signed by the Minister for the time being responsible for administration of<br />
estates of deceased persons, and it is a question of fact whether or not a particular agricultural land falls outside the<br />
provisions of Part V of the Succession Act. The onus is on the party who alleges that Part V does apply to a particular<br />
land to adduce evidence to show such land was Gazetted by the Minister concerned.<br />
2. Customary law is personal law and is meant to govern rights to land conferred by customary law or customary<br />
practices of the community or tribe where the land falls. The subject matter in dispute was registered land, which fell<br />
under the Registered Lands Act (cap 300) and therefore it had ceased to be governed by customary law in view of the<br />
clear provisions under the relevant law under which the land is registered.<br />
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FROM THE COURTS — COURT OF APPEAL<br />
3. Section 32 and 33 of the Succession Act must be read as being subject to the provisions of section 3 (2) of the<br />
Judicature Act, which provides that customary law will apply provided it is not repugnant to justice and morality, and<br />
is not inconsistent with any written law. The written law in this case was the Registered Land Act, which excludes<br />
customary claims over land registered under that Act.<br />
4. Parliament did not intend that customary law applies to agricultural land on intestacy, regardless of the result its<br />
application will give rise to. Therefore, although sections 32 and 33 of the Succession Act appear to mandate the courts<br />
to apply customary law or custom, in the distribution of a deceased’s agricultural land on intestacy, the application of<br />
such law is not absolute. It has to be subjected to strictures under section 3 (2) of the Judicature Act.<br />
5. A grant of letters of administration relates to the net estate of a deceased person. A share of property held in<br />
trust is not part of the deceased’s estate, but a charge over it and must be identified and excluded from distribution,<br />
to persons other than those beneficially entitled to it.<br />
6. The superior court erred in applying customary law without any proper basis, in absence of any Gazette notice to<br />
show the land fell in such an area in which customary law could be invoked.<br />
Appeal allowed, judgment of the superior court and any consequential orders set aside.<br />
Advocates:<br />
Mr. Kingori for the Appellants<br />
Mr. Kiminda for the Respondents<br />
Appellant’s Right to be Presented in the Court Within 14 Days of Arrest<br />
David Njuguna Wairimu v David Njuguna Wairimu<br />
Criminal Appeal no. 28 of 2009<br />
Court of Appeal at Kisumu<br />
S. E. Bosire, P. N. Waki & D. K. S. Aganyanya, JJ.A<br />
June 18, 2010<br />
Reported by Monica Achode<br />
Case History<br />
Appeal from a judgment of the High Court of <strong>Kenya</strong> at Kisii (Musinga & Karanja, JJ) dated 30th October, 2008 in H.C.<br />
Cr. A. No. 16 of 2006<br />
The Hon. Mr. Justice<br />
D. K. S. Aganyanya<br />
Constitutional <strong>Law</strong> – constitutional right – violation of appellant’s right to be presented to<br />
the court upon arrest within 14 days of such arrest – appellant having been brought to court<br />
after the prescribed period of 14 days – where the appellant had failed to raise that issue both<br />
at his trial and in his first appeal – language - failure to interpret the language of the court –<br />
appellant claiming that the court record was not clear whether proceedings were interpreted<br />
to the appellant – remedy for breach of constitutional rights – whether a doubt was created as<br />
to the appellant’s understanding of the proceedings – whether he was precluded from raising<br />
a constitutional issue at any other stage of the proceedings – Constitution section 72(3) and<br />
77(2)<br />
Charge – framing of a charge – duplicity in framing of charge – appellant claiming that the<br />
addition of the particulars relating to the wounding of the complainant in the robbery charge<br />
made it duplicitous – charge failing to include the words dangerous” and “offensive” to describe<br />
the weapons the robbers were armed with – effect of – whether the inclusion of one or more of<br />
the alternative modes of bringing a robbery charge made it duplicitous<br />
Criminal Practice and Procedure – appeal – second appeal – appeal against conviction and sentence for the offence of<br />
robbery with violence – grounds that the superior court failed to consider the defence – duty of the first appellate court –<br />
circumstances under which a superior court could rehash the conclusion of a lower court – whether this was objectionable<br />
– Penal Code section 296 (2) (Cap 63)<br />
The appellant brought the second and final appeal against a charge of robbery with violence contrary to section 296<br />
(2) of the Penal Code. Amongst the grounds adduced were that; the appellant’s Constitutional rights to be presented<br />
to the court upon arrest within 14 days of such arrest had been violated, that the language of the court had not been<br />
interpreted in a manner he could understand, that there had been a duplicity of charges and that the superior court<br />
had failed to consider all the evidence adduced against the appellant.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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FROM THE COURTS — COURT OF APPEAL<br />
Held:<br />
1. The period of 14 days was not absolute. The prosecution may have had a good reason for not bringing the appellant<br />
to court within the stipulated 14 days. However, the duty to explain the delay lay upon it. They could only be called<br />
upon to account for the delay if the issue was raised either at trial or on first appeal.<br />
2. The record clearly reflected that the appellant fully participated in the proceedings, asked questions in crossexamination,<br />
himself gave evidence in his defence, and in any case he did not raise the issue in his written submissions<br />
on first appeal.<br />
3. The appellant was not without a remedy. The Constitution (section 72 (6)) did make provision for compensation.<br />
It could not be said that the delay which was in any case, for a short time, vitiated the charges against the appellant.<br />
Besides, by the appellant not raising the issue at the earliest possible opportunity, he thus created the mistaken belief<br />
that he had waived his right to raise it.<br />
4. The words “dangerous or offensive” should have been included to describe the type of weapons the robbers were<br />
armed with. However, it was quite clear that the prosecution was not relying on the type of weapons the robbers<br />
were armed with, but the fact that the robbers wounded the complainant, which was one of the alternative elements<br />
of a robbery with violence charge. The other elements were; if the offender was armed with a dangerous or offensive<br />
weapon and if the offender was in the company of one or more persons.<br />
5. The inclusion in one count of one or more of the alternative modes of bringing a robbery charge within the ambit<br />
of section 296 did not ipso facto make the charge duplex. The robbery charge as framed was not duplex.<br />
6. The duty of the first appellate court was to analyze and re-evaluate the evidence which was before the trial court<br />
and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There<br />
were instances where the first appellate court would, depending on the facts and circumstances of the case, come to<br />
the same conclusions as those of the lower court. There was nothing objectionable in doing so, provided it was clear<br />
that the court had considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness<br />
of the decision.<br />
Appeal dismissed.<br />
Advocates<br />
Mr. Menezes for the appellant; Miss Oundo, Principal State Counsel<br />
Power of the Court to Order Advocate to Deliver Cash Account<br />
Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd<br />
Civil Application 177 & 178 of 2009<br />
Court of Appeal at Nairobi<br />
R. S. C Omolo, J. W. Onyango Otieno & D. K. S. Aganyanya (JJ.A)<br />
June 11, 2010<br />
Reported by Monica Achode<br />
Case History<br />
Application to strike out the record of appeal from the ruling and order of the High Court of <strong>Kenya</strong> at Milimani Commercial<br />
Courts, Nairobi (Khaminwa, J.) dated 9th February, 2009 in H.C.C.C. NO. 243 OF 2008 (O.S)<br />
The Hon. Mr. Justice<br />
R.S.C. Omolo<br />
Civil Practice and Procedure – taxation – appeal – appeal against dismissal of an application<br />
for taxation by third party – power to order advocate to deliver cash account – delay in<br />
filing appeal – application to strike out – grounds that the appellant had no right of appeal<br />
– claims that the was no leave to appeal obtained – certificate of delay having been issued<br />
by the deputy registrar - computation of time within which the appeal should have been<br />
filed – whether the certificate of delay could be relied on – whether leave was required to<br />
file appeals from the decisions on originating summons.<br />
Civil Practice and Procedure – stay – stay in cases of appeal – stay of recovery of costs<br />
awarded to the respondent – appeal against conditional stay granted – delay in filing appeal<br />
– application to strike out – grounds that the appeal had been filed out of time and without<br />
leave of the court – certificate of delay having been issued by the deputy registrar – claims<br />
that the certificate of delay was not proper and could not be relied upon to explain the delay<br />
period – court considerations – whether the cases warranted striking out<br />
38<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
The appellant filed an appeal against a High Court order in respect of taxation proceedings in which the court dismissed<br />
an application for taxation. This appeal was accompanied by an application seeking for stay of recovery of costs awarded<br />
to the respondent. The respondent filed counter applications seeking to strike out both the appeal and the application<br />
for stay. Several grounds were cited among them that the appellant had no right of appeal, that the appeal had been<br />
filed out of time and had not obtained leave to appeal, and that the certificate of delay issued by the Deputy Registrar<br />
could not be relied upon because it did not tell the truth on the period of delay. It was argued for the appellant that the<br />
two appeals had been lodged as of right pursuant to section 66 of the Civil Procedure Act. It was their contention that<br />
the appeals did lie as of right as they were on matters concerning advocates.<br />
Held:<br />
1. The taxation matter emanated from a decision made on an originating summons. Whether such decision was termed<br />
judgment as was used in the decision of the superior court the effect was the same; such decisions finally determine<br />
all the issues and were in essence decrees. The provisions of section 66 of the Civil Procedure Act concerning appeal<br />
from decrees of the high court covered them. Leave was not required to file appeals from the decisions on originating<br />
summons. The provisions of Order 52 rule 4 (2) allowed for the commencement of disputes between advocate and<br />
clients by way of originating summons.<br />
2. The decision being challenged was delivered on 9th February 2009 and the notice of appeal filed a day later. When<br />
it comes to computation of time within which the appeal should have been filed, this Court has always relied on the<br />
certificate of delay, unless salient and cogent reasons are set out to challenge the certificate of delay.<br />
3. The certificate of delay confirmed when delivery of the copies was made to the appellants. That was all that the<br />
rule requires of the Court to consider. As no evidence had been placed before the court to confirm otherwise that any<br />
errors of omission or commission in the matter were made by the court.<br />
4. On the grounds advanced by the respondent there was no cause to strike out the appeal against the conditional stay<br />
granted in the application for stay of recovery of costs awarded to the appellant.<br />
Application dismissed.<br />
Advocates<br />
Mr. Oira’s for the respondent/applicant;<br />
Mr. Muthuri, the learned counsel for the appellant/respondent<br />
Stay of Proceedings<br />
<strong>Kenya</strong> Power and Lightning Company v NMG Company & 3 Others (Interested Parties)<br />
Civil Application No. Nai 74 of 2010 (UR. 152/2010)<br />
Court of Appeal at Nairobi<br />
S. E. O. Bosire, E. M. Githinji & J. G. Nyamu, JJ.A.<br />
June 11, 2010<br />
Reported by Nelson Tunoi<br />
Case History:<br />
(Application for stay of proceedings and the of the High Court of <strong>Kenya</strong> at Nairobi (Gacheche, J.) dated 16th March,<br />
2010)<br />
Civil practice and procedure-stay-application for stay of proceedings and orders of the<br />
High Court pending hearing and determination of the intended appeal-whether the applicant<br />
demonstrated that the intended appeal was arguable and that it would be rendered nugatory<br />
unless a stay was granted-validity of application-Court of Appeal Rules rule 5 (2) (b)<br />
Civil practice and procedure - judicial review-leave-application for leave to file for judicial<br />
review orders-whether the application for leave to apply for judicial review orders was within<br />
the statutory time-whether application for leave for judicial review orders would operate as<br />
stay-where the superior court ordered that the leave for judicial review application operate<br />
as stay-validity of application-<strong>Law</strong> Reform Act (cap 26) section 9 (3); Public Procurement and<br />
Disposal Act (Act No. 3 of 2005) section 100 (1); Interpretation and General Provisions Act<br />
(cap 2) section 57; Judicature Act (cap 8) section 10<br />
The applicant had advertised in the local press inviting tenders for the design, supply and<br />
The Hon. Mr. Justice<br />
J. G. Nyamu<br />
construction of the Lanet-Naivasha 2nd 33 KV bays and lines on concrete poles. Among<br />
the companies that submitted their tenders in response to the advertisement were Betterline Company Limited,<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
39
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Powergen Technologies Limited and the respondent company in this application. The tender was awarded to Betterline<br />
Company Limited. The respondent lodged a request for review at the Public Procurement Administrative Review<br />
Board challenging the tender process, after which the Board dismissed the request for review and directed that the<br />
procurement process proceed. Being aggrieved by the decision of the Board , the respondent moved to the superior<br />
court by way of an application for judicial review for orders of certiorari to quash the decision of the applicant to award<br />
the tender to Betterline Company Limited, and further to quash the decision of the Board dismissing the respondent’s<br />
request for review. The respondent also asked court for orders of prohibition to stop the applicant from signing any<br />
contract related to the tender in question and further asked court for orders of mandamus to direct the applicant to<br />
evaluate the aforesaid tender and award the same in compliance with the Public Procurement and Disposal Act and<br />
its regulations. The application for judicial review was preceded by an application for leave to institute judicial review<br />
proceedings, with a request that the leave would operate as a stay of the signing, implementation and performance of<br />
any contract in terms of the tender awarded pending the hearing and determination of the judicial review proceedings.<br />
The superior court granted the leave and ordered that the leave operate as stay on any contract in relation to the tender<br />
in question pending hearing and determination of the judicial review proceedings.<br />
It was against the superior court’s decision that the applicant moved to the Court of Appeal seeking orders that the<br />
proceedings in the superior court be stayed pending the hearing and determination of the intended appeal. Counsel<br />
for the applicant contended that the application for judicial review orders was filed out of time and that the public<br />
interest in the contracts outweighed the commercial interest of the respondent. In response, counsel for the respondent<br />
contended that the delay in the application fell within the court vacation hence qualified as excluded days according<br />
to the provisions of Interpretation and General Provisions Act. The issue before the Court of Appeal was whether<br />
application for leave for judicial review orders would operate as stay.<br />
Held:<br />
1. The main ground of appeal that the application for leave was time barred was not frivolous. The applicant had<br />
intended to show in the appeal that the superior court erred in law in granting leave when the respondent had not<br />
shown a prima facie case for grant of judicial review orders.<br />
2. The intended appeal was indeed arguable since the applicant had intended to show in the appeal that the order<br />
or stay of implementation of the contract was wrongly granted.<br />
3. It was clear from the application for judicial review that it was the decision of the Review Board dismissing the<br />
Request for Review which was the proper subject matter of the judicial review, and not the decision of the applicant<br />
awarding the contract to the 2nd interested party, whether such contract and consequential sub-contracts could be<br />
rescinded or implementation thereof suspended through judicial review jurisdiction. In those circumstances, the order<br />
of stay of implementation of the contract was a very drastic order.<br />
4. Except in very exceptional cases involving jurisdictional and substantial public interest issues and where a stay<br />
has been granted, there could not be any basis for allowing any such applications in view of the clear provisions of<br />
section 8 of the <strong>Law</strong> Reform Act which contemplate only one appeal to the Court of Appeal in terms of section 8(5) and<br />
only in respect of the actual judicial review orders. In the present case however, there were both jurisdictional and<br />
public interest elements and therefore the case fell within the exception to the rule. For the same reasons, the court<br />
considers that the intended appeal could be rendered nugatory since it has often been rightly said that jurisdiction is<br />
everything.<br />
5. Per Bosire JA (dissenting):<br />
Other than the delay in providing services to the people, the other losses, by whichever party, were financial and<br />
damages would be an adequate remedy for those losses.<br />
6. Per Bosire JA (dissenting):<br />
Although the intended appeal was arguable, granting a stay would render the respondent’s suit pending in the superior<br />
court worthless.<br />
Application allowed.<br />
Advocates<br />
Mr. Kiragu for the Applicant.<br />
Mr. Mutinda for the 1st Interested Party.<br />
Mr. Wetangula for the 2nd Interested Parties.<br />
Mr. Gichuru for the Respondent.<br />
40<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Termination of Employment<br />
Jimi Masege v <strong>Kenya</strong> Airways Limited<br />
Civil Application 63 of 2003<br />
Court of Appeal at Nairobi<br />
Omolo, Waki & Onyango Otieno, JJ.A<br />
June 11, 2010<br />
Reporter: Monica Achode<br />
Case History<br />
An appeal from the judgment of the High court of <strong>Kenya</strong> at Nairobi (Kuloba, J.) dated 25th July, 2000 in H.C.C.C. NO.<br />
1165 OF 1998<br />
The Hon. Mr. Justice<br />
W. Onyango Otieno<br />
Employment – termination of – appeal against a decision finding the termination of appellant’s<br />
employment lawful and on disciplinary grounds – claims over rebate tickets – respondent<br />
having argued that the rebate tickets were concessionary and only a privilege to staff – claims<br />
that they could be changed or withdrawn or augmented by the respondent as deemed fit –<br />
circumstances under which the appellate court would find differently from a superior court<br />
– whether the appellant had an litigable entitlement to the tickets<br />
Tort – libel – appeal against an award for damages paid to the appellant by the superior<br />
court – appellant having claimed that the respondent circulated a defamatory memo about<br />
him – respondent failing to refute the appellant’s claims – guidelines when testing matters of<br />
libel – principles guiding awards to damages – whether KQ was liable for defamation – whether<br />
the appellant was entitled to damages<br />
The appellant brought an appeal against a high court decision declaring his dismissal from<br />
the respondent’s employment lawful. The appellant had also sued the respondent for libel<br />
for sending out an allegedly defamatory memo to other staff members warning them not to associate with him. The<br />
appellant had been terminated on disciplinary grounds although the respondent chose to pay him his terminal benefits.<br />
The appellant also claimed rebated tickets which he argued, were an entitlement of the employee who, him, had worked<br />
in excess of ten years and had either left on retirement, termination or reassignment. It was his contention that this<br />
was his right and not a privilege and the respondent had to surrender the same to him. Neither party exhibited the<br />
terms of appointment and the provisions therein relating to termination of employment.<br />
Held:<br />
1. Although the Court on appeal would not lightly differ from the judge at first instance on a finding of fact it was<br />
undeniable that it had the power to examine and re-evaluate the evidence on a first appeal if it became necessary. It<br />
was a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the<br />
case, and who had had the advantage of seeing and hearing the witness.<br />
2. The letter of termination was clearly predicated on various incidents of indiscipline cited by the respondent<br />
therefore the appellant’s employment was lawfully terminated and was terminated on disciplinary grounds. The<br />
appellant therefore did not have litigable entitlement to the rebate tickets.<br />
3. In an action for libel, the trial court in assessing damages is entitled to look at the whole conduct of the defendant<br />
from the time libel was published down to the time the verdict is given. It may consider what his conduct has been<br />
before action, after action, and in court during the trial<br />
4. The guidelines when testing matters of libel were; the objective features of the libel itself, such as its gravity, its<br />
province, the circulation of the medium in which it is published, and any repetition, the subjective effect on the plaintiff’s<br />
feelings not only from the prominence itself but from the defendant’s conduct thereafter both up to and including<br />
the trial itself, matters tending to mitigate damages, such as the publication of an apology, matters tending to reduce<br />
damages and vindication of the plaintiff’s reputation past and future.<br />
5. Under those tests the damages awarded by the superior court were neither inordinately too high nor inordinately<br />
too low to warrant interference by the appellate court. There was no error in principle.<br />
Appeal and cross appeal dismissed.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
41
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Conviction Based on Identification Evidence<br />
Jackson Kyalo Munge v Republic<br />
Court: Court of Appeal, at Nairobi<br />
Judge: P K Tunoi, E M Githinji & J G Nyamu JJ A.<br />
Case Number: Criminal Appeal No. 70 of 2007.<br />
Date: June 4, 2010.<br />
Reported by C W Lupao.<br />
Evidence-identification-accused seen and identified by witnesses in broad daylight-conviction based on such identificationwhether<br />
such conviction is safe.<br />
Criminal <strong>Law</strong>-confessions-accused confessing to the offence during inquiry-statement under inquiry admitted after trial<br />
within a trial-effect of.<br />
This was a second appeal by the appellant against conviction and sentence for the offence of robbery with violence.<br />
Counsel for the appellant argued that the first appellate court erred in affirming the decision of the trial magistrate<br />
notwithstanding that evidence of the eye-witnesses regarding visual identification was riddled with contradictions<br />
such that it was impossible to separate truth from untruth and that the appellant’s statement – under – inquiry which<br />
had been admitted in evidence ought not to have been admitted since the prosecution did not prove that the same<br />
was voluntarily made.<br />
Held:<br />
1. The statement-under-Inquiry, which was made by the appellant and admitted by the trial court was admitted after<br />
a trial-within-a trial, thus making it proper to admit the statement.<br />
2. After analyzing the evidence on identification the Court of Appeal was satisfied that the evidence of the witnesses<br />
who recognized the appellant driving away the stolen head of cattle could safely be relied upon as valid evidence of<br />
identification<br />
3. The conviction of the appellant was based on the evidence of recognition. The appellant was positively identified<br />
by two witnesses who knew him well having seen him at about 5.30 p.m. in broad daylight in possession of the stolen<br />
cattle.<br />
Appeal dismissed.<br />
Statutory Power of Sale<br />
Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another<br />
Civil Appeal No. 164 of 2002<br />
Court of Appeal, at Nairobi<br />
May 28, 2010<br />
P. K Tunoi, S. O. E Bosire & J. W. Onyango Otieno, JJA<br />
Reported by Nelson Tunoi<br />
Case History<br />
An appeal from the judgment of the High Court of <strong>Kenya</strong> at Nairobi (Shah, J) dated 13th August, 1995 in HCCC No<br />
5152 of 1990<br />
The Hon. Mr. Justice<br />
W. Onyango Otieno<br />
Charges - statutory power of sale-where the first respondent exercised the statutory power of<br />
sale and sold the appellant’s property to the second respondent by public auction-whether the<br />
first respondent was entitled to exercise the statutory power of sale-where the suit property<br />
was registered in the second respondent’s name-equity of redemption-whether the appellant’s<br />
equity of redemption was extinguished<br />
Land law - statutory notice - service of notice-statutory power of sale-provisions of the<br />
Registered Lands Act with regard to statutory power of sale-whether the statutory notices<br />
were valid-where first respondent’s statutory power of sale had accrued-Registered Land Act<br />
(cap 300) sections 65 (2), 74 (1) (a), 77 (4)<br />
Charge - statutory power of sale - sale by public auction-where the suit property was sold to<br />
the second respondent through public auction-where the purchase price was paid after four<br />
days instead of the required 25% at the fall of the hammer and the balance within sixty dayswhether<br />
the auctioneer diligently discharged his duties in exercising his discretion<br />
42<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Civil Practice and Procedure - damages - mesne profits-where the second respondent sought the appellant be condemned<br />
to pay mesne profits to him for the occupation of the suit property-where the suit property was registered under the second<br />
respondent’s name-whether the second was entitled to the rent for the period of occupation<br />
The appellant had applied for two loans consecutively from the Rural Urban Credit Finance. The first advance of Kshs.<br />
200,000/= was secured by a charge upon the appellant’s property (Number Nairobi/Block 74/91), while the second<br />
advance of Kshs. 60,000/= was secured through a chattels mortgage of the appellant’s motor vehicle. However in the<br />
course of events, Rural Urban Credit Finance was placed under receivership and confusion took charge of the events such<br />
that some members of staff and loan defaulters accessed the securities and several of them were stolen. Nonetheless,<br />
after complying with the legal requirements, the first respondent proceeded to sell the suit property to the second<br />
respondent through a public auction at a price of Kshs. 420,000/=, which amount was paid to the auctioneers four<br />
days after the auction and the second respondent had the property registered in his name. The appellant filed a suit<br />
against both the first and the second respondent for the recovery of the suit property which as a matter of fact had<br />
already exchanged hands. The appellant continued to live in the property despite demands by the second respondent<br />
that he vacates the property.<br />
During the hearing of the suit, the appellant claimed that the entire outstanding loan was fully repaid. He produced the<br />
title deed to which it was charged to secure the loan as evidence of repayment and that it was released to him through<br />
an authorization letter purportedly signed by him acknowledging the receipt of the title deed. The first respondent<br />
dismissed the allegations contending that not a single cent of the entire loan was repaid, and that the appellant had<br />
acquired the title deed through dubious means. The second respondent urged the court to dismiss the suit and sought<br />
orders against the appellant for eviction from the suit property and for the payment of mesne profits. After a full hearing<br />
the trial court dismissed the suit with costs, and further ordered the appellant to pay mesne profits to the second<br />
respondent by way of interest at <strong>12</strong>% per annum on the sum of Kshs. 420,000/= until such time the appellant would<br />
vacate the suit property. The appellant was dissatisfied with the judgment and filed an appeal on several grounds that<br />
the trial court erred in holding that there was clear evidence of the amount of money advanced to the appellant and<br />
which had not been fully repaid; that the first respondent was not entitled to sell the suit property by public auction;<br />
that the suit property was lawfully and properly registered in the name of the second respondent and that the discretion<br />
exercised was unjudicial and based on wrong mathematical principle when dealing with the issue of mesne profits.<br />
Held:<br />
1. The authorization letter issued to the appellant to acknowledge receipt of the Land Certificate was not a proper<br />
legal document since the person who purported to have signed it, as a witness denied having appended his signature<br />
to it and therefore this would support the contention that the title deed did not get into the appellant’s hands through<br />
proper legal channels.<br />
2. The first respondent was entitled to take the necessary procedures to sell the securities since there was no evidence<br />
of the loans having been fully repaid by the appellant. Statutory notice was issued to the appellant of the intention to<br />
sell the securities.<br />
3. Regarding whether the statutory notice was valid or not, it was clear from the High Court’s record that the issues<br />
relating to the validity of the statutory notice was neither pleaded nor canvassed, and the courts would normally base<br />
their decisions only on the issues pleaded.<br />
4. Even if the Court of Appeal decided to entertain the issue of validity of the statutory notice and found that the<br />
notice was not valid, still nothing would turn on that because, by the time the matter went for hearing in the superior<br />
court, the suit property had long been registered in the name of the second respondent pursuant to a public auction<br />
properly carried out by the auctioneers as found by the trial court. As at the time the auction proceeded, there was no<br />
injunction order existing against the sale. That meant that as far as the suit land was concerned, the appellant’s equity<br />
of redemption had long been extinguished.<br />
5. Although the appellant’s equity of redemption was extinguished, all he could possibly pursue was a remedy in<br />
damages. However, although in the amended plaint there was a prayer for general damages, there was no attempt made<br />
to canvass that aspect as an alternative issue at the trial of the suit.<br />
6. Regarding whether the public auction was proper, the auctioneer in exercising his discretion acted on the interest<br />
of all the parties involved by accepting full payment of the purchase price in lateness of four days instead of insisting<br />
on 25% down payment at the fall of the hammer and the balance to be paid within sixty (60) days.<br />
7. The second respondent was entitled to compensation in respect of the period the appellant remained on the suit<br />
property after it was transferred to the second respondent. There was no evidence that the appellant paid him any<br />
rent and during the said period.<br />
Appeal dismissed with costs to both respondents.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
43
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Constructive Provocation<br />
Josiah Afuna Angulu v Republic<br />
Criminal Appeal No 277 of 2006<br />
Court of Appeal, at Nakuru<br />
May 28, 2010<br />
PK Tunoi, PN Waki & A. R. M. Visram JJ A<br />
Reported by Monica Achode<br />
Case History<br />
An appeal from a conviction and sentence of the High Court of <strong>Kenya</strong> at Nakuru (Musinga, J) dated 4th April, 2006 in<br />
HCCRC No 44 of 2002<br />
Criminal Practice and Procedure – appeal – first and final appeal – duty as the first appellate<br />
court to reassess and re-evaluate such evidence and to reach its own independent conclusion –<br />
appeal against conviction and death sentence for the offence of murder – main ground that the<br />
case against the appellant was not proved beyond reasonable doubt – claims of contradictory<br />
evidence – whether the prosecution had proved its case beyond reasonable doubt – Penal<br />
Code(Cap 63) section 203 as read with section 204<br />
Criminal Practice and Procedure – constructive provocation – appellant having argued with<br />
one of the witnesses prior to the incident – lack of evidence as to whether the deceased had<br />
been involved in the argument – whether this could be construed as constructive provocation<br />
– whether such provocation could be availed to the appellant<br />
The appellant was convicted in the trial court for the offence of murder contrary to section<br />
203 as read with section 204 of the Penal Code and sentenced to death. It was against this<br />
The Hon. Mr. Justice<br />
A. Visram<br />
that he proffered his first and final appeal basing it on one main ground that the case against him had not been proved<br />
beyond reasonable doubt and he was therefore entitled to acquittal. During the trial it emerged that prior to the incident,<br />
the appellant had engaged in a quarrel with one of the witnesses. It was however not clearly established whether the<br />
deceased had been a part of this. Further, in the submission of evidence against the appellant various inconsistencies<br />
emerged which cast doubt on the prosecution’s evidence.<br />
It was therefore the appellant’s contention that the inconsistencies and contradictions evident in the testimonies<br />
were material enough to discount the entire evidence of those witnesses. The appellant further claimed, with the<br />
State Counsel conceding, that there may well have been a quarrel between the appellant and one of the witnesses<br />
which could have been construed as provocation. However the State Counsel stated that such provocation could not<br />
be availed to the appellant as there had been time for his passion to cool between 8 a.m when the quarrel occurred<br />
and 2 p.m when the deceased was shot.<br />
Held:<br />
1. The evidence may have been short on full consistency in every detail and some of it may not have been fully tested<br />
in cross-examination but there was no doubt, that the appellant was at the scene of the crime and not anywhere else<br />
as purported by him.<br />
2. The doubtful evidence as to whether the deceased was also involved in the quarrel and whether he said anything<br />
before his death, cast a dark shadow on the evidence establishing mens rea. In law the benefit of those doubts went<br />
to the appellant.<br />
3. It was the appellant who shot the arrow which resulted in the deceased’s death. It is an unlawful death and the<br />
appellant was to stand convicted of the lesser offence of manslaughter.<br />
Appeal allowed, conviction quashed, sentence of murder set aside and substituted for the lesser offence of<br />
manslaughter.<br />
44<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Superior Court’s jurisdiction to Reverse Trial Court’s Finding<br />
Kenneth Kiplangat Rono v Republic<br />
Criminal Appeal No. 66 of 2009<br />
Court of Appeal, at Nakuru<br />
May 28, 2010<br />
E O O’kubasu, P N Waki & D K S Aganyanya JJ A<br />
Reported by Nelson Tunoi<br />
Case History<br />
Appeal from a judgment of the High Court of <strong>Kenya</strong> at Kericho (Angawa, J) dated 25th March, 2009 in HCCrA No 4 of<br />
2009<br />
Criminal Practice and Procedure - appeal - second appeal against conviction and sentence -<br />
the appellant was convicted on counts of defilement and child trafficking-where the appellant’s<br />
acquittal on the count of defilement was reversed to a conviction-whether the superior court<br />
had jurisdiction to reverse the trial court’s finding of not guilty to guilty-whether the evidence<br />
adduced was sufficient to secure conviction on both counts-whether the appeal had merit-Penal<br />
Code sections 260, 261; Sexual Offences Act sections 8 (3), 18 (1) (2); Criminal Procedure Code<br />
section 215; United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons,<br />
Article 3 (a)<br />
The appellant was charged with two counts, first count of defilement contrary to section 8<br />
(3) of the Sexual Offences Act, and the second count of child trafficking contrary to section<br />
The Hon. Mr. Justice 18 (1) of the same Act. After full trial, the appellant was acquitted on the first count for lack<br />
E. O. O’Kubasu of evidence and convicted on the second count and consequently sentenced to 15 years<br />
imprisonment or a fine of Kshs. 2 million. He lodged an appeal against the conviction and sentence before the superior<br />
court. Although the State did not file a cross appeal against the acquittal of the appellant on the count of defilement,<br />
the superior court in its judgment appeared to be entertaining some aspect of appeal on that count. The superior court<br />
observed that indeed the complainant had been subjected to sexual intercourse by the appellant and thus reversed<br />
the acquittal to a conviction and proceeded to sentence the appellant to 20 years imprisonment. On the second count,<br />
the superior court set aside the optional fine of Kshs. 2 million and upheld the term of 15 years imprisonment, which<br />
sentences were to run concurrently. The appellant was dissatisfied with the decision of the superior court and filed a<br />
second appeal before the Court of Appeal on grounds that the superior court erred in law and fact in finding that the<br />
complainant was a minor without any form of evidence supporting that finding, that the superior court erred in finding<br />
that the complainant was defiled without any evidence supporting that finding, and further that the court erred in law<br />
in justifying the conviction of the appellant on the second count of child trafficking on the basis of the provisions of<br />
sections 260 and 261 of the Penal Code.<br />
Held:<br />
1. There was no cross appeal against the appellant’s acquittal on the count of defilement and the superior court had<br />
no jurisdiction to reverse the trial court’s finding of no guilty to that of guilty and sentencing the appellant to 20 years<br />
imprisonment on that count.<br />
2. The age of the complainant was not ascertained medically or through any documentation by the prosecution as<br />
required in law for such offences. Therefore the age of the complainant remained doubtful and the benefit of that doubt<br />
should have been in favour of the accused.<br />
3. On the count of child trafficking, the trial court did not focus on the ingredients of the offence which constitute the<br />
act, the means and the purpose, when convicting the appellant on the said count and therefore the conviction of the<br />
appellant on the count of child trafficking was unsafe.<br />
Appeal allowed, convictions quashed and sentences set aside.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
45
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Procedure For Production of Exhibits<br />
Chris Kasamba Karani V Republic<br />
Criminal Appeal No. 26 Of 2008<br />
Tunoi, Bosire & Onyango Otieno, JJ A<br />
Court of Appeal at Nakuru<br />
May 28, 2010<br />
Reported by Njeri Githang’a<br />
Case History<br />
(Appeal from a judgment of the High Court of <strong>Kenya</strong> at Nakuru (Koome & Kimaru, JJ.) dated 24th January, 2008 in<br />
H.C.CR.A. NO. 199 OF 2004)<br />
The Hon. Mr. Justice<br />
P. K. Tunoi<br />
Criminal Practice and Procedure- second appeal-appeal against conviction and sentence -<br />
appellant convicted of robbery with violence-appeal restricted to matters of law- circumstances<br />
under which an appellate court would interfere with the decision of the superior court-Criminal<br />
Procedure Code (Cap 75) section 361<br />
Criminal Practice and Procedure-exhibits- procedure for production of exhibits- need for<br />
an exhibit to be identified before being produced as evidence-where an exhibit was irregularly<br />
produced-where the irregular production of the exhibit did not affect any ingredient of the<br />
offence- where the court could still have enter conviction without the weapon being produced<br />
as exhibit - whether the appeal could be allowed on that ground in circumstances<br />
Criminal Practice and Procedure-trial process-judgment and sentencing-trial court required<br />
to receive mitigating circumstances after finding the appellant guilty before proceeding to<br />
pronounce sentence- mitigating circumstances on record would be of importance when assessing<br />
an appropriate sentence on appeal<br />
Evidence-identification evidence-principles that the court had to take into when dealing with<br />
evidence of identification where the accused claimed it was mistaken identity- appellant caught red handed-whether<br />
there was proper identification<br />
The appellant had been charged with robbery with violence contrary to section 296 (2) of the Penal Code. After full<br />
trial, he was convicted and was sentenced to death. His appeal to the High Court was dismissed resulting to a second<br />
and final appeal to the Court of Appeal.<br />
It was argued that the High Court erred in law by sustaining the finding of the subordinate court despite the testimony<br />
of PW1 and PW2 being deficient of credibility. It was submitted that there was no proper identification of the appellant.<br />
It was further argued that the High Court erred in law by sustaining the finding of the subordinate court despite of the<br />
exhibits being produced contrary to the law.<br />
Held:<br />
1. By dint of section 361 of the Criminal Procedure Code, the court was enjoined to consider only matters of law. The<br />
court could not interfere with the decision of the superior court on facts unless it was demonstrated that;<br />
a. the trial court and the first appellate court considered matters they ought not to have considered or<br />
b. they failed to consider matters they should have considered or<br />
c. looking at the evidence as a whole, they were plainly wrong in their decision, in which case, such omission or<br />
commission would be treated as matters of law.<br />
Whether PW1 and PW2 were credible witnesses were matters of fact and the court would be very reluctant to interfere<br />
with the concurrent findings of the two courts on such matters.<br />
2. The guidelines as regards the principles that the court had to look into when dealing with evidence of identification<br />
where the accused claimed it was mistaken, including that of identification by recognition were;<br />
a. Where the only evidence against a defendant was evidence of identification, or recognition, a trial court was<br />
enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were<br />
favourable and free from possibility of error before it could safely make it the basis of a conviction.<br />
b. Recognition could be more reliable than identification of a stranger but mistakes in recognition of close<br />
relatives and friends were sometimes made.<br />
3. The appellant had been caught red handed and his defence which was rejected after due consideration by the two<br />
court’s below was indeed ousted by clear and credible evidence adduced by the prosecution.<br />
4. Exhibit 1 had been irregularly produced. Following the correct procedure in law, PW2 should have identified<br />
that exhibit and it should have been marked for identification before PW3 produced it as exhibit. However nothing<br />
turned on that irregularity because the production of that exhibit did not affect any ingredient of the offence. The<br />
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BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
offence as charged could have been proved even if the dangerous weapon was not produced as exhibit. So long as the<br />
court believed, on evidence before it, that such a weapon existed at the time of the offence, the court could still enter<br />
conviction without the weapon being produced as exhibit.<br />
5. (Obiter) The trial court, after finding the appellant guilty and convicting him proceeded to pronounce sentence<br />
upon him in the same judgment without receiving any mitigating circumstances from the appellant and the appellant’s<br />
antecedents before sentencing him which was not proper. Even where the sentence was mandatory, the trial court<br />
needed to record mitigating circumstances before pronouncing the sentence. That was important because, on appeal,<br />
the appellate court could be minded to find the appellant guilty of a lesser charge which did not attract a mandatory<br />
sentence. In such a situation, mitigating circumstances on record would be of importance when assessing an appropriate<br />
sentence. Further, in situations such as when the President considered commuting the sentence, the record was of<br />
importance.<br />
Appeal dismissed<br />
Criminal Practice and Procedure: Reduction of Charge<br />
James Karoki Wangeci v Republic<br />
Criminal Appeal 146 of 2008<br />
Court of Appeal, at Nyeri<br />
May 14, 2010<br />
R. S.C. Omolo, P. N. Waki & D. K. S. Aganyanya, JJ.A<br />
Reported by Esther Nyaiyaki Onchana<br />
Case History<br />
Appeal from a judgment of the High Court of <strong>Kenya</strong> at Nyeri (Kasango, J.) dated 28th July, 2008 in H.C.Cr.A. 160 of<br />
2007<br />
The Hon. Mr. Justice<br />
D. K. S. Aganyanya<br />
Criminal Practice and Procedure – appeal – second appeal - matters confined to a second<br />
appeal - appellant having been charged with the attempted defilement of a minor – where the<br />
first appeal to the superior court of records was dismissed – claims that the appellant’s defence<br />
was not considered – whether the evidence adduced was sufficient to sustain the conviction<br />
Criminal Practice and Procedure – charge – reduction of charge - charge sheet having been<br />
changed from reading “defilement of a minor” to reading “attempted defilement of a minor”<br />
– whether this would prejudice the appellant – claims that the language of the court was not<br />
stated when the charge was change and there was no interpretation – compliance with section<br />
214 of the Criminal Procedure Code (Cap 75) – court record showing that the appellant pleaded<br />
not guilty when the alternate charge was read to him – effect of - Criminal Procedure Code<br />
section 214<br />
Constitutional <strong>Law</strong> - fundamental rights - rights of an accused person - right to a fair trial -<br />
right to be brought to court within a reasonable time-appellant being charged with murder<br />
- appellant having been arrested on February 7, 2007 and was taken to Court on February 9, 2007<br />
The appellant came to court seeking an appeal against the conviction and sentence on a charge of attempted defilement.<br />
Amongst the grounds of appeal adduced by the appellant were that the charge sheet had been substituted without<br />
due regard to section 214 of the Criminal Procedure Code, that the proceedings in the court had not been interpreted<br />
in a language he could understand, that he had been held beyond the prescribed period of 24 hours before being<br />
arraigned in court and that his defence had not been considered hence the case against him had not been proved<br />
beyond a reasonable doubt.<br />
Held:<br />
1. The new charges were read over to the appellant in the Kikuyu language which he understood and he pleaded<br />
not guilty whereupon the trial commenced on the new charges. That was a procedure fully sanctioned under and in<br />
compliance of section 214 of the Criminal Procedure Code. There was no substance in that ground of appeal and no<br />
prejudice caused to the appellant by reduction of the charge facing him to a lesser one.<br />
2. The trial court was careful to record that the proceedings would be conducted in “English/Kiswahili/Kikuyu” and<br />
they would be interpreted in those languages. The trial court was also careful to record the language used by each of<br />
the prosecution witnesses and the appellant, and the court clerk who carried out the interpretation. Therefore this<br />
ground also failed.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
3. The appellant was arrested on 7th February 2007 at 3 p.m. The 24 hours period would have expired at 4 p.m. on<br />
8th February 2007. One needed to consider how practicable it would have been to take the appellant to court at 4 p.m.<br />
on 8th February 2007. In all probability the courts sessions would by then have ended. The appellant was taken as<br />
soon as was reasonably practicable. The appellant’s constitutional rights were not therefore violated.<br />
Appeal dismissed.<br />
Mode of Service of an Election Petition<br />
Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others<br />
Court of Appeal at Nairobi<br />
Tunoi, Githinji & Waki JJ.A<br />
Civil Appeal 183 of 2008<br />
May 7, 2010<br />
Reported by Esther Nyaiyaki Onchana<br />
Case History<br />
An appeal from the ruling and order of the Election Court, High Court of <strong>Kenya</strong> at Kisii (Ibrahim, J) dated 11th July,<br />
2008 in Kisii Election Petition No. 1 of 2008)<br />
The Hon. Mr. Justice<br />
P. K. Tunoi<br />
Election law – service – mode of service of an election petition – appeal – appeal against<br />
ruling by the High Court dismissing election petition on the ground that the petitioner had<br />
invoked the alternative mode of service under Section 20(1) (a) (iv) of the National Assembly<br />
and Presidential Elections Act without exercising first due diligence to serve the respondent<br />
personally – alternative mode of service having been effected within six days of filing the election<br />
petition - affidavit of service – High Court struck out the affidavit of service for having not been<br />
filed on time - whether an affidavit of service in an election must be filed in a prescribed manner<br />
– affidavit of service was filed after leave was granted by the court to file further affidavits to<br />
examine whether the 1st respondent had been served in accordance with the Act - whether the<br />
affidavit of service was erroneously struck out - Section 20 (1) (c) (iv) of the National Assembly<br />
and Presidential Elections Act<br />
Electoral law – service – mode service of an election petition - affidavit of service - whether the<br />
appellant’s affidavit of service dismissed by the High Court would have discharged the onus of<br />
showing on a balance of probability that the appellant exercised due diligence in serving the<br />
election petition – whether onus is on the petitioner to demonstrate that he exercised due diligence before invoking service<br />
through alternative mode of service – 1st respondent argued that the petitioner had ample time exercise due diligence<br />
before resorting to alternative means – whether the petitioner discharged the onus of showing diligence in serving the<br />
petition – due diligence – meaning of due diligence<br />
The appellant was a registered voter in Kitutu Masaba constituency. He challenged the declaration of the 1st respondent<br />
as the winner of that election through an election petition filed at the High Court. Service of the election petition on<br />
the 1st respondent was published in the <strong>Kenya</strong> Gazette and in a local daily newspaper. The High Court struck the<br />
petitioner’s affidavit of service annexed to his replying affidavit, for failure by the process server to cause the same to<br />
be filed in court.<br />
The affidavit of service having been struck out left the affidavit of the petitioner’s advocate which merely referred<br />
to the alternative mode of service and the effects of post election violence. Personal service was thus ruled out and<br />
consideration by the court was concentrated on whether due diligence to serve the 1st respondent as required under<br />
section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act had been satisfied. The court held that<br />
the petitioner could not embark on the process of service under section 20 (1) (c) (iv) until due diligence had been<br />
done to serve the 1st respondent personally. The petitioner appealed against that ruling.<br />
Held:<br />
1. The process server’s affidavit of service held together the appellant’s petition and by striking out and exclusion of<br />
its contents brought the petition tumbling down. It was the very document which would have answered the question<br />
as to whether under section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act, the appellant<br />
exercised due diligence to effect personal service before resorting to alternative means of service.<br />
2. The affidavit of service was part of the record as it had been filed pursuant to leave granted by the court for purposes<br />
of assisting the court to examine whether the 1st respondent had been served in accordance to the National Assembly<br />
and Presidential Elections Act. The superior court fell in error and failed to examine the very evidence that would have<br />
assisted it in establishing the truth of the disputed facts.<br />
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BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
3. The factual depositions of the process server, which were not challenged in cross-examination established on a<br />
balance of probability that the appellant discharged the onus of showing due diligence in serving the petition.<br />
Appeal allowed.<br />
Advocates<br />
1. Mr. Nowrojee for the Appellant<br />
2. Mr. A.B Shah for the 1st Respondent<br />
Interpretation of Electoral <strong>Law</strong>s and Regulations<br />
James Omingo Magara v Manson Onyongo Nyamweya & 2 others<br />
Court of Appeal at Kisumu<br />
Omolo, Tunoi & Githinji JJ.A<br />
Civil Appeal 8 of 2010<br />
April 30, 2010<br />
Reported by Esther Nyaiyaki Onchana<br />
Case History<br />
Being an appeal from the Judgment and Decree of the High Court of <strong>Kenya</strong> at Kisii (Musinga, J) delivered on the 17th<br />
December, 2009 and the Certificate of Determination of Election Petition signed and dated 17th December 2009 in<br />
H.C. Election Petition No. 3 of 2008<br />
The Hon. Mr. Justice<br />
R.S.C. Omolo<br />
Election law – interpretation of statute - interpretation of electoral laws and regulations – the<br />
interpretation of electoral laws is aimed at conducting free and fair elections – circumstances<br />
when an election can be declared void - test to be applied by the court in determining validity<br />
of an election - meaning of free and fair elections – meaning of transparent elections – duty<br />
of the electoral body to promote free and fair election - Section 17A of the National Assembly<br />
and Presidential Elections Act - section 42A (c) of the Constitution<br />
Election law – election petition – appeal against High Court judgment – the High Court<br />
having nullified the election of the appellant as the Member of Parliament for the South<br />
Mugirango constituency on grounds that the election was not transparent, free and fair<br />
– the appellant having garnered the highest number of votes during the scrutiny and<br />
recount of votes – failure by the court to find the appellant guilty of an electoral offence -<br />
scrutiny and recount of the votes disclosed numerous irregularities among them unsigned<br />
unauthenticated Forms 16A, variation between Forms 16A and 17A, missing ballot boxes,<br />
broken ballot seals - the significance of Forms 16A – the effect of the failure by the presiding<br />
officer to sign or stamp Forms 16A without reasonable cause - Regulations 35A (5), 39, 40<br />
(1) of the Presidential and Parliamentary Regulations<br />
Election law – conduct of elections – non-compliance with the law – the scope of section 28 of the National Assembly and<br />
Presidential Elections Act - section 28 of the National Assembly and Presidential Elections Act providing that irregularities<br />
in the conduct of an election will not vitiate the result unless the irregularities were so serious that the election was not<br />
in accordance with principles laid in the law or the irregularities affected the result- appellant asking the court to invoke<br />
section 28 on grounds that the acts alleged against the electoral body that conducted the elections did not affect the<br />
overall results of the elections – whether the anomalies found in Forms 16A and17A were so pervasive as to affect the<br />
entire election - whether these anomalies could be cured by section 28 of the National Assembly and Presidential Elections<br />
Act – whether election was conducted in accordance with principles laid down by the electoral law<br />
The appellant, James Omingo Magara, was declared the winner of the parliamentary election held on 27th December,<br />
2007 after garnering the highest number of votes. The elections were conducted by the defunct Electoral Commission<br />
of <strong>Kenya</strong> (ECK) which in this suit was taken over by the 3rd respondent, Interim Independent Electoral Commission<br />
of <strong>Kenya</strong> (IIEC).<br />
The 1st respondent, Manson Onyongo Nyamweya, one of the candidates who vied for the parliamentary elections,<br />
filed a petition in the Election Court in Kisii, where he alleging that appellant was guilty of various electoral offences<br />
and that the returning officer and ECK had breached the electoral law by committing numerous electoral irregularities.<br />
The High Court rejected the allegations relating electoral malpractices made against the appellant. However the court<br />
made a finding that, the presiding officers and returning officer committed many irregularities among them noncompliance<br />
with the conditions relating to Forms 16A and 17A provided for under Regulations 35A (5), 39 and 40 (1)<br />
of the Presidential and Parliamentary Regulations. The court nullified the elections because ECK and its agents had<br />
not conducted the election in a transparent free and fair manner.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
49
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BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
The appellant’s principle ground of appeal to the Court of Appeal was that he had the highest number of votes following<br />
scrutiny and recount of votes conducted by the election court, this he argued, reflected the will of the people. The<br />
appellant further submitted that the existence of a few cases of non-compliance with electoral regulations did not affect<br />
the overall outcome of the electoral process and therefore the Electoral Court ought to have applied the provisions of<br />
section 28 of the National Assembly and Presidential Elections Act and dismissed the petition. The said section provides<br />
that an election should not be declared to be void by reason of a non-compliance with any written law relating to that<br />
election, if it appears that the election was conducted in accordance with the principles laid down in that written law,<br />
or that the non-compliance did not affect the result of the election The Court of Appeal considered the scope section<br />
28 of the National Assembly and Presidential Elections Act against the requirement to hold elections in a transparent,<br />
free and fair manner.<br />
Held:<br />
1. Under Regulation 35A (4) of the National Assembly and Presidential Elections Regulations it was evident that the<br />
Form 16A was an important document in the electoral process. In particular Form 16A dealt with a specific polling<br />
station, the number of registered voters in that station, the number of the candidates, the votes secured by each<br />
candidate in that station. Where a candidate or his agent refused to sign, the reason for the refusal should be recorded.<br />
It is from Forms 16A, from all the polling stations in a constituency that the returning officer in charge of the whole<br />
constituency is be able to tally all the votes polled in the constituency and having tallied the votes from each polling<br />
station, enter them on Form 17A and declare the winner of the election in that constituency. The importance of Form 17<br />
A was also evident from the reading of Regulation 40 of the National Assembly and Presidential Elections Regulations.<br />
A transparent, free and fair electoral process must adhere to this process and such adherence to the process can only<br />
be shown by the presiding officer himself signing the form and then inviting the candidates or their agents to sign.<br />
2. Forms 16A that are not signed by presiding officers raise serious legal questions that may not be resolved by a<br />
forensic audit of an election.<br />
3. The scrutiny and recount of the votes by the High Court disclosed numerous irregularities, among them unsigned<br />
and, therefore, unauthenticated Forms 16A, three missing ballot boxes, broken ballot seals and many others set out in<br />
the High Court judgment. These irregularities could not have been cured under section 28 of the National Assembly<br />
and Presidential Elections Act.<br />
4. Section 28 of the National Assembly and Presidential Elections Act could not be used to cover a situation where<br />
even the source of the votes in the ballot boxes could be conclusively determined. Again to use that section to cover<br />
the disappearance of ballot boxes, irrespective of the number of the ballot papers in the missing boxes, would simply<br />
amount to encouraging vandalism in the electoral process.<br />
5. [per Githinji J.A. dissenting] Mere failure by a presiding officer to sign Form 16A was a procedural anomaly which<br />
could not invalidate the results announced in a polling station. The election was conducted in accordance with principles<br />
laid down by the electoral law and that the anomalies found in some Form 16A and 17A were not so pervasive as to affect<br />
the entire election. Those were post-election procedural anomalies which were cured by both scrutiny and counting<br />
and by Section 28 of the Act. Therefore the Election Court had misconstrued Section 28 of the National Assembly and<br />
Presidential Election Act.<br />
Appeal dismissed. Appellant ordered to pay costs to the 1st respondent.<br />
Advocates<br />
1. Mr. Katwa Kigen for the Appellant<br />
2. Mr. Onyinkwa for the 3rd respondent<br />
Presumption of Marriage<br />
Mary Wanjiru Githatu v Esther Wanjiru Kiarie<br />
Court of Appeal at Eldoret<br />
Bosire, Tunoi & Nyamu JJ.A<br />
Civil Appeal 20 of 2009<br />
April 23, 2010<br />
Reported by Esther Nyaiyaki Onchana<br />
Case History<br />
Being an appeal from the judgment and decree (Ibrahim J) given on 13th May 2008 in the matter of the estate of the<br />
late Ephantus Githatu Waithaka (deceased) in ELD HC P & A OF 2002<br />
Probate and administration - letters of administration - appeal - interpretation of statute – interpretation of section<br />
3(5) of the <strong>Law</strong> of Succession Act - appeal from High Court judgment granting the respondent letters of administration<br />
– appellant arguing that a customary law marriage could not presumed where all the customary requirements had not<br />
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BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
been fulfilled – whether a marriage between the respondent and the deceased could be presumed under section 3(5) of<br />
the <strong>Law</strong> of Succession Act Marriage – presumption of marriage - rationale and genesis of the concept of presumption of<br />
marriage - circumstances in which a presumption of marriage is deemed to arise – respondent having cohabited with the<br />
deceased for over fifteen years and had three children – evidence supporting that the deceased supported the respondent<br />
financially – lack of evidence that dowry was paid under the Kikuyu customs of marriage – whether a marriage could be<br />
presumed under such circumstances<br />
The High Court decreed that Esther Wanjiru Githatu (respondent/objector) and Mary Wanjiru Githatu (appellant/<br />
petitioner) be joint administrators of the estate of Ephantus Githatu Waithaka (the deceased). The High Court judgment<br />
had rendered that although there was no formal marriage between the deceased and the respondent, by virtue of their<br />
long cohabitation of fifteen years, recognition and acceptance by family members and friends, coupled with the birth<br />
of three children, the court declared the existence of a marriage by presumption and/or cohabitation between them.<br />
The Hon. Mr. Justice<br />
S. E. O. Bosire<br />
The appellant’s main ground of appeal was whether the respondent was a widow of the<br />
deceased within the meaning of section 3 (5) of the <strong>Law</strong> of Succession Act (Cap 160). The said<br />
section provides that the notwithstanding any other written law, a woman married under<br />
a system of law that permits polygamy is, where her husband has contracted a subsequent<br />
or previous monogamous marriage to another women, she will nevertheless be considered<br />
a wife for purposes of the Act.<br />
On appeal, the appellant’s advocate argued that the trial court in holding that petitioner was<br />
the widow of the deceased, based its decision on presumption of marriage. In his view the<br />
court erred in law and fact in failing to find that a common law presumption of marriage<br />
could not bring the petitioner within the provisions of section 3 (5) of the <strong>Law</strong> of Succession<br />
Act particularly having held that there was no valid Kikuyu customary law marriage between<br />
the petitioner and the deceased.<br />
On the other hand the respondent’s advocate relied on long cohabitation, the children the<br />
petitioner had with the deceased and other evidence to urge the court to presume a marriage<br />
between the deceased and the petitioner.<br />
Held:<br />
1. Whether or not a marriage could be presumed was a question of fact. It was not dependent on any system of law<br />
except where by reason of a written law it was excluded. The objector was married by the deceased under Kikuyu<br />
Customary <strong>Law</strong>. That being so and both sides conceded as much, the deceased had the capacity to enter into another<br />
marriage relationship provided the marriage was not a prohibited one.<br />
2. The marriage between the petitioner and the deceased was potentially customary in nature. The deceased according<br />
to Kikuyu customary law was obliged to pay dowry for the petitioner. As at the date of his death he had not done so.<br />
It however appeared to the court that if other essentials were satisfied but dowry was not paid, it may be paid even<br />
after one of the parties to the relationship was dead. Contrary to the objector’s submission it was in the circumstances<br />
as existed between the deceased and the petitioner in which a presumption of marriage may be raised.<br />
3. Long cohabitation as husband and wife may give rise to presumption of marriage in favour of the party asserting<br />
it, in the instant case, the petitioner (Hortensiah Wanjiku Yawe v The public Trustee). In view of section 3 (5) of the<br />
<strong>Law</strong> of Succession Act and the decision in Yawe vs. Public Trustee it was quite clear that the petitioner could in the<br />
circumstances of this case, be regarded otherwise than as the widow of the deceased.<br />
4. [per Nyamu J.A dissenting] The superior court decision was patently contradictory because it made a finding of<br />
the non-existence of a marriage under Kikuyu customary law between the petitioner and the deceased and at the same<br />
time declared a marriage by presumption, a concept which was a stranger in Kikuyu customary law.<br />
5. [per Nyamu J.A dissenting] A customary marriage is constituted by virtue of section 3(2) of the Judicature Act<br />
by the presence of the specified customary ingredients. It is a massacre of such a custom for anyone to suggest that a<br />
presumption of marriage per se can constitute a marriage under any system of law whether customary or common<br />
law unless it was accompanied by the other essential ingredients pertaining to a particular system of marriage. A<br />
presumption based on cohabitation remained a presumption but it could not constitute a customary law marriage<br />
without the essential ingredients. The presumption could not itself form the super structure of a Kikuyu customary<br />
law marriage or any other, it could only be part of the issue whether factually there was a marriage.<br />
6. [per Nyamu J.A dissenting] The petitioner was not married under a system of law contemplated under section 3<br />
(5) of the <strong>Law</strong> of Succession Act, therefore there was no marriage in terms of that provision.<br />
Appeal dismissed.<br />
Advocates<br />
1. Mr. Gicheru for the Appellant<br />
2. Mr. Machio for the Respondent<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
51
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Use of evidence in main charge to establish a minor and cognate charge.<br />
M.B.O v Republic<br />
Court of Appeal at Nakuru<br />
Omolo, Waki & Visram<br />
Criminal Case 342 of 2008<br />
April 16, 2010<br />
Reported by Esther Nyaiyaki Onchana<br />
Case History<br />
(Appeal from a judgment of the High Court of <strong>Kenya</strong> at Nakuru (M. Koome, J) dated 19th June, 2008 in H.C.CR.A. NO.<br />
284 OF 2006)<br />
Criminal practice and procedure – appeal – appellant charged for the offence of defilement and an alternative charge<br />
of indecent assault of a female – conviction on alternative charge -appeal against conviction on the alternative count<br />
and sentence for 10 years imprisonment – appeal on grounds that the main charge having been struck out an alternative<br />
charge could not be sustained-whether evidence on record could sustain the offence of defilement - whether the conviction<br />
and sentencing was proper – section 144 and 145 (1) of the Penal Code<br />
Sentencing - sexual offence - indecent assault on a minor-sentence of 10 years imprisonment-legality of sentence -section<br />
144 (1) Penal Code<br />
The appellant was convicted for three counts of the offence of defilement and sentenced<br />
to imprisonment twenty years on each count. The cumulative sentences were to run<br />
consecutively, so that the term of imprisonment would total to 60 years. The appellant argued<br />
in his appeal to the superior court that the three main counts were incurably defective for<br />
failure to describe the acts of carnal knowledge as ‘unlawful’. The superior court quashed<br />
and set aside the sentences. The court however found that the evidence on record supported<br />
the alternative counts of indecent assault and sentenced the appellant to serve 10 years<br />
imprisonment for each count. Each sentence was to run concurrently from the date of the<br />
appellant’s first conviction.<br />
In a second and final appeal the appellant’s advocate argued that the quashing of the main<br />
charge of defilement, on the technical ground that it was defective, the evidence adduced in<br />
support of that charge dissipated with it, and it could not be referred to as a foundation for<br />
a finding on the alternative counts. He also submitted that the private parts referred to in<br />
the alternative counts were ‘buttocks’ which did not constitute private parts.<br />
The Hon. Mr. Justice<br />
P. N. Waki<br />
Held:<br />
1. If the main charge is not proved, either because it is defective or because the evidence on record does not support<br />
any element of the offence, the evidence does not evaporate into thin air! It may be examined to see if it supports a<br />
minor and cognate offence and if it does prove such offence beyond doubt, a conviction will follow.<br />
2. In the instant case, the charge of indecent assault was a minor and cognate offence that could be considered if the main<br />
charge of defilement was unsustainable. Section 179 of the Criminal Procedure Code allowed for such procedure.<br />
3. The Sexual Offences Act defined an indecent act as any intentional act which causes, inter alia, any contact between<br />
the genital organs of a person or her breasts and buttocks with that of another person. Despite this new development in<br />
the law, the buttocks of a woman were private enough to attract the charge of indecent assault if they were intentionally<br />
touched or exposed.<br />
4. By dint of Section 361(1) (a) of the Criminal Procedure Code the severity of sentence was a matter of fact which<br />
was not within the jurisdiction of the Court of Appeal. However under section 361 (1) the court considered the legality<br />
of the sentence imposed by the superior court and found that it omitted to include hard labour.<br />
Appeal dismissed and sentence imposed by the superior court enhanced to include hard labour.<br />
Advocates<br />
1. Mr. Olaly Cheche for the Appellant<br />
2. Mr Njogu for the State<br />
52<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Manufacturer’s Duty of Care to Consumers<br />
<strong>Kenya</strong> Breweries Ltd v Godfrey Odoyo<br />
Court of Appeal at Nairobi<br />
Civil Appeal <strong>12</strong>7 of 2007<br />
Bosire, Onyango Otieno & Nyamu JJ.A<br />
April 16, 2010<br />
By Esther Nyaiyaki Onchana<br />
Case History<br />
Appeal from the judgment of the High Court of <strong>Kenya</strong> at Nairobi (Visram, J.) dated 8th August, 2005 in H.C.C.A. NO.<br />
480 OF 2002<br />
The Hon. Mr. Justice<br />
W. Onyango Otieno<br />
Tort – negligence – damages for injuries suffered due to consumption of contaminated beer –<br />
appeal against liability and damages awarded in the consumer – whether the two lower courts<br />
were wrong in holding beer manufacturer liable – the rule in Donoghue v Stevenson – whether<br />
the principles enunciated in the rule were proved – whether duty of care by the appellant to<br />
the respondent had been established – whether negligence by the appellant if any resulted in<br />
injury to the respondent<br />
Tort – negligence – liability – where the bottle that was analyzed was not the one consumed<br />
by the respondent – appellant alleging that there was no nexus between the contents of the<br />
bottle that was examined and the injury suffered by the respondent – whether report by <strong>Kenya</strong><br />
Bureau of Standards was improperly obtained – effect of -<br />
The respondent sought judgement against the appellant in the Chief Magistrate’s Court for<br />
general damages and special damages. He sought this on the grounds that the respondent,<br />
being a beer manufacturer, which manufactured among other brands of beer, the beer brand<br />
of Tusker Malt Larger, (300 ml) on June 23, 2000 put on sale three Tusker Malt Lager bottles which the respondent<br />
bought and partly consumed.<br />
He alleged that the beers did not comply with specifications on foreign matter and clarity and were therefore unfit for<br />
human consumption causing him to suffer severe injuries and special loss. After full hearing, the trial court found the<br />
appellant liable and awarded to the respondent general damages in the sum of Ksh.70,000 for pain and suffering and<br />
a further Ksh.21,990 for special damages in respect of hospital fees paid for treatment.<br />
On appeal, the superior court upheld the trial court’s decision on liability and on<br />
special damages but set aside the award of for general damages and substituted it with<br />
an award for Kshs. 20,000. The appellant filed a second and last appeal at the Court<br />
of Appeal premised on the grounds that the superior court had erred in upholding<br />
the trial court’s finding on liability, in particular that the appellant’s injuries, if any,<br />
were caused by beer manufactured by the appellant. In addition the appellant faulted<br />
the superior court’s finding that the appellant was negligent and that such negligence<br />
resulted in injury to the respondent and that the court failed to follow the principles<br />
laid down in decided cases relating to negligence.<br />
The appellant’s advocate submitted that because the bottle which was submitted for<br />
analysis was not the same bottle consumed by the respondent, there was no evidence<br />
it connected to the respondent. He contended that the principles enunciated in the<br />
well known case of Donoghue v. Stevenson, where injury arose from drinking the<br />
content of a manufactured bottle that contained a snail were, first that there had to<br />
be a duty of care to the respondent by the appellant, secondly, breach of that duty<br />
had to be established, and thirdly that it had to be proved that respondent suffered as a result of the breach of that<br />
duty. It was further submitted, that a report by <strong>Kenya</strong> Bureau of Standards was improperly obtained because the law<br />
required such a test to be carried out only on the request of the relevant the Minister. He argues that in the instant case<br />
the test was requested done at behest of an advocate.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
53
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
The respondent’s advocate argued that the appellant had not denied the existence of the duty of care. He contended<br />
that the results of the lab analysis produced in evidence to prove injury were sufficient as they had not challenged by<br />
the appellant at the trial despite being represented by counsel. The certificate produced the <strong>Kenya</strong> Bureau of Standards<br />
stated that the contents of the bottle were unfit for human consumption and that even the shock experienced by the<br />
respondent amounted to injury. The appellant’s advocate maintained that since the respondent bought three bottles<br />
in the same batch, and in the process of taking the second bottle he noted impurities in it and in the third bottle, the<br />
duty extended to all the bottles manufactured in the same batch by the appellant.<br />
Held:<br />
1. The unopened bottle, which was examined by <strong>Kenya</strong> Bureau of Standards, contained the same impurities as the<br />
opened bottle which was partly consumed by the respondent. The appellant’s witness had acknowledged to the court<br />
that if the bottles were of the same batch, it was reasonable to assume that if the opened bottle had impurities, the<br />
unopened one too had the same impurities as was witnessed by the respondent. This in effect meant that what the<br />
respondent consumed and what was in the unopened bottle which was examined were the same and only in different<br />
containers. In that scenario, there was a clear nexus between the bottle manufactured by the appellant and respondent.<br />
There was therefore no proper reason to interfere with the concurrent finding of the two courts below on that aspect<br />
which was a finding on fact based on cogent reasoning.<br />
2. The appellant had special knowledge of its system of production and could have very easily produced evidence<br />
to show that the unopened bottle, although it could be seen to have what looked like similar impurities in the half<br />
consumed bottle, was nonetheless, a separate bottle not produced together with the offending bottle.<br />
3. The results by the <strong>Kenya</strong> Bureau of Standards were not vitiated for failure to obtain proper authority before<br />
conducting the examination. The appellant who had the report at the hearing of the case did challenge the legality of<br />
the report by the Bureau of Standards in the trial court. Even if it had been proved that it was improperly obtained,<br />
that alone would have probably only affected its value and not its admissibility.<br />
4. The best course would have been to proceed under that Act as the beer was within the food bracket. But the report<br />
that was made by <strong>Kenya</strong> Bureau of Standards, a body empowered by law to ensure proper standards of products released<br />
into the market, which would include beers and several other products, could be ignored. It categorically stated that<br />
the beer did not meet the standard required meaning it was not fit for human consumption. The appellant did not do<br />
anything to demonstrate that the beer was wholesome and fit for human consumption unlike the results of the <strong>Kenya</strong><br />
Bureau of Standards indicated. The accepted evidence was that the appellant consumed beer which had impurities and<br />
which was unfit for human consumption. It did not matter where the test was carried out and it did not matter under<br />
which law the examination was done so long as the report has dealt with the essential aspects of the matter and the<br />
same test was admitted at the trial by a competent court of law.<br />
5. In order to hold a defendant liable to the plaintiff the plaintiff has to prove that the defendant owes him a duty of<br />
care; that that duty has been breached and that as a result of that breach, the plaintiff has suffered injury (Donoghue<br />
v Stevenson). In the instant case the respondent consumed one and a half bottles from the batch and fell sick. There<br />
were documents produced in court to prove the same and those documents were not challenged on their contents.<br />
Whether the suffering was minor resulting from shock of having drank beer that had impurities or real resulting into<br />
vomiting and diarrhoea as the respondent said, it all boiled down to the fact that those were injuries.<br />
6. [Nyamu J.A. dissenting] The unused beer bottle was never consumed and the half consumed beer was never analysed<br />
and therefore the linkage of its contents to the injury was by an inference not by actual factual proof of negligence.<br />
7. [Nyamu J.A. dissenting] The neighbourhood principle, and the duty of care owed, has been substantially influenced<br />
by the scientific dimension and medical advancement in the last 80 years. In some cases depending on the facts, the<br />
principle has been restricted in its application or expanded by the ever changing frontiers of science. Liability at this<br />
time and age must take this into account. Indeed the manufacturers’ liability to the ultimate consumer should be<br />
determined on the basis of the facts and not a matter of routine. The application of the Donoghue v Stevenson ratio to<br />
the special facts on this case was patently erroneous.<br />
Appeal dismissed.<br />
Advocates<br />
1. Mr. Lutta for the Appellant<br />
2. Mr. Ochieng’ Ogutu for the Respondent<br />
54<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Trafficking in Narcotic Drugs<br />
Kingsley Chukwu v Republic<br />
Court of Appeal at Nairobi<br />
J. W. Onyango Otieno, D. K. S. Aganyanya & Alnashir Visram<br />
Criminal Appeal 257 of 2007<br />
April 16, 2010<br />
Reported by Esther Nyaiyaki Onchana<br />
Case History<br />
An appeal from a judgment of the High Court of <strong>Kenya</strong> at Nairobi (Ojwang, J) dated 16th July, 2007 in H. C. CR. A. No.<br />
599 of 2004<br />
Sentence – trafficking in narcotic drugs - appellant convicted and sentenced to imprisonment for 15 years for the offence<br />
of trafficking in narcotic drugs by the Chief Magistrate’s court – superior court subsequently setting aside the trial court’s<br />
sentence and sentencing the appellant to pay a fine of Kshs. 28 million or in default a twelve year jail term and a prison<br />
term of three and half years - whether the sentences imposed by the courts below were in consonance with section 4(a) of<br />
the Narcotic Drugs and Psychotropic Substances (Control) Act - when an appellate court can interfere with the sentence<br />
imposed by a lower court<br />
The appellant was convicted and sentenced to fifteen years imprisonment for the offence of trafficking in narcotic drugs<br />
contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act 1994. In his first appeal to<br />
the superior court the appellant alleged that his conviction by the trial court was based on unreliable circumstantial<br />
evidence. At the trial court he had denied being the owner of the pieces of luggage containing narcotic drugs. The<br />
superior court upheld his conviction but ordered the appellant to pay a fine of Kshs. 28,800,000 and in default to serve<br />
a term of twelve years in jail. In addition the appellant was sentenced to a prison term of three and half years.<br />
The Court of Appeal considered whether the sentences imposed by the trial court and the superior court were in<br />
accordance with section 4 of the Narcotic Drugs and Psychotropic Substances (Control) Act 1994.<br />
Held:<br />
1. Under section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act 1994 a person convicted for<br />
an offence under that section shall be fined one million shillings or three times the market value of the narcotic drug<br />
or psychotropic substance whichever is greater, and, in addition, to imprisonment for life.<br />
2. Both the lower courts were wrong in the sentence meted out; the trial court for imposing a jail-term of fifteen years,<br />
without a fine and the superior court for imposing first a jail term of twelve years in default of the fine, and in addition<br />
imposing a jail term of three and half years. There was no merit in the appeal against the appellant’s conviction but<br />
the court set aside the sentence imposed the superior court according to section 361 (1) (b) of the Criminal Procedure<br />
Code.<br />
Appellant ordered to pay a fine of Kshs. 28,8000, 000 and in addition sentenced to imprisonment for life.<br />
Advocates<br />
1. Ms Ouya for the state<br />
Execution of a Judgment and Decree by the Court<br />
Hunker Trading Company Ltd v Elf Oil <strong>Kenya</strong> Ltd<br />
Court of Appeal at Nairobi<br />
Githinji, Visram & Nyamu JJ.A<br />
Civil Application 6 of 2010<br />
March 24, 2010<br />
Reporte by Esther Nyaiyaki Onchana<br />
Case History<br />
(An application for stay of execution orders of judgment and decree of the High Court of <strong>Kenya</strong> at Nairobi Milimani<br />
Commercial Courts (Lesiit, J) dated 17th July, 2009 in H.C.C.C.NO.1785 of 20010)<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
55
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Civil Practice and Procedure – stay of execution – application for stay of execution of a judgment and decree by the High<br />
Court – application grounded under sections 3A & 3B of the Appellate Jurisdiction Act – applicant having disobeyed an<br />
earlier order by the High Court to deposit security in an interest earning account – overriding objective of the Appellate<br />
Jurisdiction Act- whether the applicant could rely on the overriding objective having failed to comply with the High Court’s<br />
ruling – notice of appeal relating to the main judgment and not the High Court’s ruling - whether applicant could rely<br />
on the overriding objective provisions having disobeyed the High Court’s ruling – whether non-compliance with the High<br />
Court ruling had a bearing on the application before the appellate court – Rule 5 (2) (b) Court of Appeal Rules and sections<br />
3A & 3B of the Appellate Jurisdiction Act<br />
The applicant, Messrs Hunker Trading Company Limited, had applied to the High Court for<br />
a stay of execution of the judgment and decree in favour of the respondent, Elf Oil <strong>Kenya</strong><br />
Limited. The High Court granted the stay but instructed the applicant to deposit security in<br />
interest earning account to be opened in the joint names of the applicant’s and respondent’s<br />
advocates. However, the order subsequently lapsed without compliance by the applicant.<br />
At a later stage, the applicant under sections 3A and 3B of the Appellate Jurisdiction Act and<br />
Rule 5 (2) (b) of the Court of Appeal Rules made an application to the Court of Appeal seeking<br />
for a stay of execution of the judgment and decree of the High Court. The notice of appeal<br />
before the appellate court was directed against the main judgment delivered by the High<br />
Court but it was not against the court’s ruling which had ordered the applicant to deposit<br />
security. The Court of Appeal considered whether non-compliance with that High Court<br />
ruling had a bearing on the provisions of sections 3A and 3B of the Appellate Jurisdiction Act.<br />
The appellate court chose the call the overriding objection in civil litigation provided under<br />
The Hon. Mr. Justice<br />
E. M. Githinji<br />
section 1A of the Civil Procedure Act and sections 3A and 3B of the Appellate Jurisdiction Act ‘the Oxygen Principle<br />
(O2 principle)’<br />
Held:<br />
1. The applicant having admitted to having failed to comply with order of stay by the High Court order, the Court<br />
of Appeal found the applicant to be in breach of section 1A (3) of the Civil Procedure Act and section 3A (3) of the<br />
Appellate Jurisdiction Act.<br />
2. The fact that the order had since lapsed had in no way eroded the relevance of the disobedience of the order to the<br />
operation of the overriding objective.<br />
3. The thrust of applicant’s application to the appellate court under section 3A was substantially to seek similar orders<br />
to those he was granted in the superior court and disobeyed. Under section 1A (3) the applicant had a duty to obey all<br />
court processes and orders. Going to the Court of Appeal having abused the process in the superior court was a clear<br />
violation of the overriding objective of civil litigation.<br />
4. As the applicant did not appeal against the order of stay by the High Court for reasons of being onerous or unjust<br />
but instead just ignored it, the application fell outside the provisions of Rule 5(2) (b) and section 3B and was therefore<br />
incompetent.<br />
Application dismissed.<br />
Service in an Election Petition<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others<br />
Court of Appeal at Nairobi<br />
Tunoi, Waki & Aganyanya JJ A<br />
March 19, 2010<br />
Reported by Esther Nyaiyaki Onchana<br />
Case History<br />
An appeal from the ruling and order of the High Court of <strong>Kenya</strong> at Nyeri (Kasango, J) dated 28th May, 2008 in H.C.<br />
Election Petition No. 1 of 2008<br />
Election law – service - service of an election petition – appeal against dismissal of an election petition by the High Court<br />
on the ground that service had not been conducted within the requisite period after publication of results – production<br />
of conflicting evidence before the High Court through conflicting affidavits regarding the service of the election petition<br />
- appellant’s process server swearing in an affidavit that the election petition had been served within the given period of<br />
time –1st respondent also swearing in an affidavit that the service of election of election petition as alleged by the process<br />
server did not take place – parties whether failure by the 1st respondent to cross examine the process server amounted to<br />
56<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
admission to having been served the election petition - whether the appeal could be allowed on that ground- section 20<br />
(1) (a)National Assembly and Presidential Elections Act.<br />
The appellant, Dickson Daniel Karaba was one of the candidates in Kirinyaga Constituency<br />
during the Parliamentary elections held in December 2007 in which the 1st respondent,<br />
John Ngata Kariuki was declared the winner of that election by the returning officer the 2nd<br />
respondent James Kariuki Gitau.<br />
The appellant filed an election petition in which he averred that there were errors in counting<br />
of votes, omission of results from certain poll stations and erroneous tallying and re-tallying.<br />
He sought for orders for scrutiny and tallying of all votes cast in that constituency. By way<br />
of application, the 1st respondent sought to strike out the petition on the ground that he<br />
had not been served personally with the petition within twenty eight days after the date<br />
of publication of the results as required by section 20 (1) (a) of the National Assembly and<br />
Presidential Elections Act.<br />
The Hon. Mr. Justice<br />
P. N. Waki<br />
The High court was faced with<br />
conflicting affidavits regarding the service of the election<br />
petition. The court process server swore in his affidavit that he<br />
had served the 1st respondent as required by law. The process<br />
server’s affidavit was supported by an affidavit sworn by a car<br />
hire businessman, who knew the process server and the 1st<br />
respondent. On the other hand the 1st respondent swore an<br />
affidavit to the effect that he had not been served. The motion<br />
was set down for hearing, but in view of the conflicting factual<br />
information, counsel on both sides applied to cross-examine the<br />
deponents on the respective affidavits on record. However, at the<br />
resumed hearing only the 1st respondent was cross examined<br />
on his affidavit but his counsel declined to examine the court<br />
process server. The petition was consequently struck out on the<br />
ground that the petitioner had not discharged the burden of<br />
proof laid upon him in respect of service of the petition. Being<br />
aggrieved by that decision the appellant filed an appeal where<br />
he submitted that the failure by the 1st respondent to challenge<br />
the affidavits relating to service of process amounted to an admission of the facts. He further averred that if there were<br />
any doubts regarding the depositions before the court, the deponents ought to have been cross examined.<br />
Counsel for the 1st respondent asserted that there was no obligation to cross-examine the process server especially<br />
where there was other evidence to rebut the process server’s averments.<br />
Held:<br />
1. In view of the factual statements and the circumstances of this case it was desirable that the truth between the two<br />
versions of the affidavits be explored through cross examination. Only the 1st respondent was cross-examined and in<br />
the process he made material admissions which lent credence to the assertions of the process server.<br />
2. In view of the evidence presented to the trial court there was no doubt that the process server was at the location<br />
of the offices of the 1st respondent at the time he swore he was, the only issue being whether or not he met the 1st<br />
respondent there and served him. The affidavit evidence of the process server, which was not challenged in crossexamination,<br />
that he made his way to the 1st respondent’s offices and served him in the manner he stated he did was<br />
believable.<br />
Appeal allowed.<br />
Advocates<br />
1. Mr. Wamae for the Appellant<br />
2. Mr. Mari for the 1st Respondent<br />
3. Mr. Arusei for the 2nd Respondent<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
57
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — HIGH COURT<br />
Election petition: fundamental electoral irregularities and malpractices.<br />
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR<br />
Election Petition 11 of 2008<br />
April 30, 2010<br />
KH Rawal J.<br />
High Court at Nairobi (Nairobi <strong>Law</strong> Courts)<br />
Reported by Njeri Githang’a<br />
Election law-election petition- parliamentary election- petition seeking to nullify and declare<br />
void the election of the first respondent as Member of Parliament for Makadara Constituency<br />
-irregularities in elections – petitioner citing several irregularities in the conduct of elections<br />
- whether the irregularities were sufficient to warrant nullification of the election- National<br />
Assembly and the Presidential Elections Act (Cap 7)<br />
Election law-electoral offences and election malpractices – election posters- election placards<br />
and posters not disclosing the name and address of the publisher - whether the fact that a<br />
party to an election petition did not specify on the face of his election poster the name and<br />
the address of the printer or publisher could result in the nullification of an election- whether<br />
the petitioner had proved that allegation to the required standard of proof- Election Offences<br />
Act (Cap 66) section 11 (1) and 11(1) (b)<br />
Election law – electoral malpractice and offence – code of conduct – allegation of breach of<br />
duty and code of conduct by the Electoral Commission and the Returning Officer-failure to<br />
serve impartially and independently in performance of their duties – where it is alleged that<br />
The Hon. Lady Justice KH<br />
Rawal<br />
the Commission had been pressured by first respondent’s political party to declare the results which it believed to be false<br />
– whether the anomalies raised a question regarding the authenticity and veracity of the election results.<br />
Election law – electoral malpractice – ballot boxes -ballot boxes received at tallying centre with seals broken – boxes<br />
carried by unknown persons - petitioner’s agents denied opportunity to accompany the ballot boxes from the polling station<br />
to the tallying station - the petitioner arrested when he raised the grievance– whether the parliamentary elections were<br />
conducted in free, fair and transparent manner.<br />
Election law- electoral documents- statutory documents and forms - manner in which results are to be recorded - presiding<br />
officer required to record the total number of votes cast in favor of each candidate and to sign and seal the declaration<br />
set out in the Form 16A certifying the results –whether Form 16A which is not signed by Presiding Officer could constitute<br />
valid results which could be accepted for tallying by a Returning Officer - absence of Form 16A for most agents -Form 17A<br />
not complied with –certificate of winning being issued to the successful candidate before Form 17A - agents not allowed<br />
to verify the forms – whether the anomalies in the process of election results were so fundamental as to affect the results<br />
of the election.<br />
Election law- election results -discrepancies between the presidential and civic elections - whether the difference was<br />
evidence of serious electoral malpractice that was apparent during the conduct of the elections- alteration of results- Form<br />
16As- specific results of candidates either cancelled or altered without the presiding officer countersigning the cancellation<br />
or alteration- no trace of the physical records of the election results - whether the cancellations and alterations in the<br />
Form 16As produced in the court raised question regarding the veracity and authenticity of the said results - whether the<br />
first respondent had been validly elected as the member of parliament<br />
Evidence-admissibility of evidence-new evidence after cross examination-discretion of the court to refuse or allow the<br />
evidence-whether it was against the principles of justice to allow or admit the evidence<br />
The petitioner, a candidate for the Parliamentary Election for Makadara constituency filed an election petition contesting<br />
the election of the first respondent as the Member of Parliament for the Constituency. The third respondent was the<br />
Electoral Commission of <strong>Kenya</strong> (ECK) while the second respondent was the ECK’s Returning Officer. The ECK was<br />
subsequently disbanded by a constitutional amendment that established the Interim Independent Electoral Commission<br />
(IIEC) as its successor and the IIEC succeeded to the suit in the place of the ECK.<br />
The petition was brought on the ground that the parliamentary election involved serious irregularities and malpractices<br />
committed by the respondents and several election offences on account of which the results announced for the<br />
parliamentary election could not be said to have been valid. The petitioner raised several complaints among them; that<br />
the said election was not conducted in accordance with the provisions of the National Assembly and the Presidential<br />
Elections Act or the Regulations made thereunder. According to the petitioner there had been no free, fair and transparent<br />
Parliamentary Election and the election had to be nullified as prayed in the Petition. |It was alleged that there had been<br />
serious anomalies in the process of election results, especially with the electoral documents which were fundamental<br />
and would affect the results of the election.<br />
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During the hearing, 175 ballot boxes for Makadara Constituency were deposited with the Registrar of the High Court<br />
and were ordered to be opened to scrutinize the compliance of Rule 19 of the National Assembly and Presidential<br />
Elections Rules .The record on the court file showed that a number of irregularities became apparent following the<br />
scrutiny of the ballot boxes.<br />
In opposing the petition, it was contended that no new ground from the process of cross-examination gave the petitioner<br />
a legitimate ground for seeking the nullification of the election and the petitioner could not be allowed to introduce<br />
new grounds in the course of adducing evidence in support of his petition. The court was also asked to disregard the<br />
issue regarding validity of the Forms 16A.<br />
Held:<br />
1. There was no proof of an election offence under section 11 of the Election Offences Act. The burden of proof of<br />
election offences was higher because they were in the nature of quasi – criminal acts. If the offence was not proved to<br />
the satisfaction of the court the same could not be held to be proved against the respondent.<br />
2. Copies of Form 17A were not given to the first Respondent. They were produced by the first and second respondents<br />
the first time in court. It was thus inconceivable that the petitioner could have given any particulars as regards Form<br />
17A.<br />
3. Considering the element of surprise, neither the first and second Respondents could complain that they were<br />
surprised by the evidence led on Form 17A (even if it was in cross-examination) as they were all the time aware of its<br />
details and have readily shown them to the court in support of their cases that the tallying process and declaration<br />
of the election results were conducted fairly and justly. The evidence received during the cross-examination of those<br />
witnesses, if allowed to be irrelevant and inadmissible, it would have been against the principles of justice and Rule<br />
of <strong>Law</strong>.<br />
4. The court had unlimited and wide discretion to admit or refuse to admit even admissible evidence. No principle<br />
of law prevented the court to look into the evidence led by the opposite party which would support the pleaded case<br />
of the other party.<br />
5. Although it was the Returning Officer who declared the result and issued the certificate of result, the same became<br />
authentic when it was declared and published by the Electoral Commission in the <strong>Kenya</strong> Gazette as provided by law.<br />
6. The Difference of about 10,000 votes cast between Presidential and Parliamentary Election was not usual and<br />
would lead to the conclusion that all was not well. A voter could not be forced to vote for all the streams of election,<br />
but as per Regulation 30 (2) of the Election Regulations, the ballot papers for each stream of elections had to be issued<br />
and had to be put in the ballot box by the voter.<br />
7. Nothing was commented on the absence of signature and seal of the Electoral Commissioner by the Presiding<br />
Officer on the Form 16A. Even though Regulation 35A (5) and (6) of the Presidential and Parliamentary Elections<br />
Regulations stipulated that non-signature could not affect the election, the omission to do so was of a serious nature<br />
which could cast doubt on the validity of the result declared.<br />
8. Regulation 40 of the Presidential and Parliamentary Elections Regulations did not have provisions similar to<br />
Regulation 35 (A) (5) and (6). Regulation 40 (1) (g) (i) provided that the Returning Officer had to sign and date the<br />
form and give to any candidate or his agent present a copy of Form 17A. There was evidence that Form 17A was not<br />
dated by the second respondent.<br />
9. The Constitution gave the court the jurisdiction to hear election petitions and the court was expected by all the<br />
laws, to determine that the process of election was free, fair and transparent. It had to give effect to the tenets of the<br />
Constitution, Rule of <strong>Law</strong>, Electoral <strong>Law</strong>s and the Regulations made thereunder. If the court found that the electoral<br />
process was very badly flawed and that the process so undertaken could affect the results of the election as declared,<br />
the court had to declare the election null and void.<br />
10. Evidence had been produced by the respondents which brought out the breaches and violation of the electoral<br />
laws and regulations. Moreover, the absence of Form 16As and other irregularities became apparent when the ballot<br />
boxes were opened to check compliance of Rule 19 of the Election Rules.<br />
11. Free and fair elections had a clear meaning in terms of democratic audit. Elections provided an important ingredient<br />
of popular election of parliament. For this to be achieved, the underlying notes concerning the conduct of the election<br />
had to provide a high standard of fairness as between parties, candidates and voters.<br />
<strong>12</strong>. The court, apart from doing justice between the parties, had also to consider the aspect of public interest in the<br />
electoral process which was to give the voters a duly elected member representing them in the parliament.<br />
13. The Election Petition was a special jurisdiction donated to the court. The electoral officials appointed by the<br />
Electoral Commission were expected to adhere to the provisions of electoral laws substantively. Forms 16A and forms<br />
17A were the most important documents in the electoral process and they had to be shown to have been duly filled<br />
in and completed.<br />
13. Even if a Returning Officer could get assistance from his deputies, he could not abdicate his duty and legal obligation<br />
to scrutinize the validity of Form 17A which was the document to be used to declare the winning candidate.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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15. Form 16As had to confirm to Regulation 35A at each polling station as they were to be scrutinized and relied<br />
upon by the Returning Officer to fill in Form 17A. Regulation 35 of the Election Regulation provided for the procedure<br />
to be followed by the Presiding Officer at the polling station culminating in the sealing of ballot boxes. These were<br />
very serious and onerous obligations stipulated by the electoral laws and could not be lightly shrugged off under the<br />
guise of human errors.<br />
16. There were arithmetical errors in the results of all the candidates in Form 17A. The results of two polling stations<br />
were not included and figures in respect of final tally of the results of the petitioner and the first respondent were<br />
altered without authenticating the same or by counter-signing. The figures of votes (cast, rejected and valid ones) were<br />
also not entered in respect of some polling stations, signature of candidates or agents were not shown. The Form 17A<br />
presented by the first Respondent was neither signed nor dated.<br />
17. The certificate of results issued by the second respondent declaring the first respondent as a winner was issued<br />
before the tallying process and form 17A were completed.<br />
18. All the undisputable facts lead to the conclusion that the second respondent did not perform her duties fairly and<br />
impartially. When a candidate was removed from the tallying centre at a very critical stage of the election process she<br />
failed to put it on record. She did not undertake her duties fairly and impartially.<br />
19. The process of the election, starting from the ferrying of ballot boxes to the whole process of receiving and<br />
tallying the ballot boxes in the tallying centre and declaration of the first respondent as a successful candidate did not<br />
demonstrate that there was a fair and free election.<br />
20. There was enough evidence to find that there were serious anomalies in the process of election results, which were<br />
fundamental and in the nature which would affect the results of the election. There was also evidence of non-compliance<br />
with important and mandatory provisions of the electoral law from the electoral officials and the court in all fairness<br />
had no option but to come to the conclusion that the parliamentary election was not fair, free and transparent.<br />
Petition allowed.<br />
Advocates :<br />
Mr. Omollo for the Petitioner<br />
Mr. Kilukumi for the 1st respondent<br />
Mr. lubullellah for the 2nd & 3rd respondent<br />
Criminal Practice: Defence of Retraction by Admission<br />
Josephat Njue Solomon v Republic<br />
Criminal Appeal 187 of 2008<br />
High Court at Embu<br />
W. Karanja. J<br />
April 22,2010<br />
Reported by Andrew Halonyere<br />
Criminal practice and procedure – charge – framing of a charge for the offence of defilement –appeal against conviction<br />
and sentence of life imprisonment on a charge of defilement – grounds; that the magistrates trial court omitted to record<br />
the language used during trial, words in the particulars of the charge i.e “unlawful carnal knowledge” were not envisaged<br />
in the Sexual Offences Act – court’s record showing that the appellant understood and participated in the proceedings<br />
- law on use of language in the course of criminal proceedings – whether the phrase “causing penetration with a child”<br />
and “unlawful carnal knowledge” described the same act.<br />
Criminal law – defilement – defilement of a girl under the age of 18 years – appellant raising defence of retraction by<br />
admission, by stating that “the girl was agreeable to what I did to her”- circumstances under which a retraction would<br />
arise – whether a minor can have consensual sex – whether the evidence adduced was sufficient to sustain a conviction.<br />
Evidence – documentary evidence – P 3 form – court’s discretion to call the maker of a document to adduce evidence -<br />
Sexual Offences Act (2006) section 8 (1),(2) - Penal Code (Cap 63) – Evidence Act (Cap80) section 77.<br />
The appellant was charged before the Runyenjes Senior Resident Magistrate’s Court with the offence of defilement<br />
of a girl contrary to section 8 (1) as read with sub-section 2 of the Sexual Offences Act (2006). He was convicted and<br />
sentenced to life imprisonment on his own plea of guilty. Being aggrieved with the conviction and sentence he filed an<br />
appeal against it in the High Court.<br />
The appellant submitted that the words used in the particulars of the charge i.e “unlawful carnal knowledge”, were not<br />
envisaged in the Sexual Offences Act, arguing that they were words in the repealed sections of the Penal Code (Cap 63)<br />
and therefore rendered the charge defective. It was also submitted that the plea was unequivocal because the appellant<br />
admitted to the facts but added the statement, “The girl was agreeable to what I did to her.” However, counsel for the<br />
state called this an attempt at justification and not a retraction of the admission. The appellant further submitted that<br />
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the magistrate’s court erred by admitting the P3 form without calling the maker and without giving the appellant a<br />
chance to object or admit to it. Finally it was the appellant’s submission that the language used during the trial and<br />
whether or not it was understood by the appellant was not on record.<br />
Counsel for the state in objecting to the appeal, submitted that there was no defect in the charge and that the use of<br />
the words “unlawful carnal knowledge” did not make it defective.<br />
Held:<br />
1. The law on use of language was very clear. The language used at the trial did not have to be the accused person’s<br />
mother tongue, nor the language of his choice. All it needed to be was a language clearly understood by the accused.<br />
2. “Causing penetration with a child” and “carnal knowledge” described the same act. It was just a question of<br />
semantics. Penetration was actually a detail of the act but both terms simply meant having sexual intercourse. The fact<br />
that “carnal knowledge” appeared in the Penal Code (Cap 63) and not in the Sexual Offences Act of 2006, did not outlaw<br />
its use in the particulars of the offence. Therefore the use of the said words was not prejudicial to the appellant at all.<br />
3. A retraction would only have arisen if an accused person raised a defence admitting the facts e.g if an accused’s<br />
answer to a charge of murder was, “It is true, I admit the fact but I did not intend to kill him,” that would have completely<br />
negated a plea in that case. However, in a case of defilement it mattered not whether the child gave its consent or whether<br />
she was agreeable to the sexual intercourse. This was a statutory offence and the issue of consent or agreeability would<br />
not arise. Saying that the girl was agreeable did not therefore negate the plea. It did not make it equivocal.<br />
4. Section 77 of the Evidence Act (Cap 80) provided, that in criminal proceedings any document that purported to<br />
be a report under the hand of a Government analyst, medical practitioner or any ballistics expert, document examiner<br />
or geologist upon any person, matter or thing submitted to him for examination or analysis could be used in evidence.<br />
The court could presume that the signature to any such document was genuine and that the person signing it held the<br />
office and qualifications which he professed to hold at the time when he signed it. When any report was so used the<br />
court could, if it thought fit, summon the maker and examine him as to the subject matter thereof. Therefore the P3<br />
form was admissible and since it was not a hearing where viva voce evidence was being adduced, there could not have<br />
been any cross-examination or need to call the maker of the document.<br />
Appeal dismissed<br />
The Hon. Justice Fred A.<br />
Ochieng<br />
Rights of an Accused Person to be Brought to Court within 14 Days of Arrest<br />
Republic v Desmond Mukhaya Mulusa [2010] eKLR<br />
Criminal Case 86 of 2007<br />
April 20, 2010<br />
Judge: Fred A. Ochieng J.<br />
High Court at Nairobi<br />
Reported by Njeri Githang’a<br />
Constitutional <strong>Law</strong>- fundamental rights and freedoms- rights of an accused person- right<br />
to be brought to court within 14 days after arrest- applicant accused of murder-detention of<br />
applicant in police custody for 6 months - onus on the police to demonstrate that the accused<br />
had been taken to court as soon as was reasonably practicable- delay caused by delay in<br />
conducting the post-mortem examination of the victim’s body as the family could not be traced<br />
to identify the body- victim’s family inability to raise the mortuary fees and the post-mortem<br />
fees causing further delay in having the post mortem report released-whether the prosecution<br />
had explained the delay satisfactorily-Constitution sections 70 (a), 72 (3) (b) and 77<br />
Constitutional law-fundamental rights and freedoms-rights of an accused person- accused<br />
person presumed innocent until proven guilty-prosecution submitting that if there was any<br />
breach of the constitutional rights of the accused the court had to apply the provisions of<br />
the Constitution in a wholesome manner- rights of the accused to be weighed as against the<br />
rights of the victim- whether the court could use section 71 of the Constitution as a counter-weight to the provisions of<br />
section 72(3)- obligation of the court to give effect to the section 70 of the Constitution- restrictions and limitations of<br />
constitutional rights –rights subject to respect for the rights and freedoms of others and for public interest – where public<br />
interest required the court to determine whether or not the accused was guilty-whether the violation of constitutional<br />
rights of an accused resulted to an automatic acquittal- Constitution sections 70, 71 and 72 (3).<br />
Constitutional law-fundamental rights and freedoms-remedy for breach of- right of the applicant to sue for compensation<br />
under section 72(6) of the Constitution- the provision an integral part of the Constitution-duty of the court to invoke that<br />
section where section 72(3) has been breached-whether failure to bring the applicant to court within the prescribed time<br />
only entitled him to compensation for breach of his rights- Constitution section 72 (6).<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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Criminal Practice and Procedure-affidavit-amendment-whether an affidavit may be amended- claim that the affidavit<br />
sworn by the Investigating Officer explaining the delay was referring to a different case-whether there was need for the<br />
respondent to seek to either amend the affidavit or alternatively, to seek leave to file a supplementary affidavit -where the<br />
only lawful option would be to file a supplementary affidavit-whether the affidavit was defective<br />
The applicant, who had been charged with murder, made a constitutional application to the court with a claim that his<br />
constitutional rights under sections 70 (a) and 72 (3) (b) and 77 (1) of the Constitution had been violated. In particular,<br />
the accused asserted that his detention beyond the period of 14 days from the date of his arrest, constituted a violation<br />
of his constitutional rights. The applicant had been held in police custody for six months before being arraigned in<br />
court.<br />
The Investigating Officer swore an affidavit in which he deponed that the delay in bringing the accused to court was<br />
attributable to a delay in conducting the post-mortem examination of the victim’s body as the family of the deceased<br />
could not be traced in good time to identify the body. The Investigating Officer also disclosed that the City Mortuary<br />
could not release to the police the results of the post mortem examination early enough, because of the unpaid mortuary<br />
charges.<br />
The accused submitted that the affidavit did not correlate to the case, because in his view, it was sworn to explain<br />
issues which arose in Criminal Case No. 87 of 2007, (whereas the case at hand was Criminal Case No. 86 of 2007). He<br />
further argued that the inability of the victim’s family to raise the fee payable for the post- mortem examination was<br />
not a justifiable explanation. The accused re-emphasized that where the constitutional rights of an accused person<br />
have been violated, he was entitled to an acquittal.<br />
The respondent on the other hand submitted that if there was any breach of the constitutional rights of the accused,<br />
the court had to apply the provisions of the Constitution in a wholesome manner. It was contended that the rights of<br />
the accused must be weighed as against the rights of the victim of the offence.<br />
Held:<br />
1. A perusal of the court file revealed that the affidavit of the Investigating Officer was sworn on the file before the<br />
court. There was therefore no need for the respondent to seek to either amend the affidavit or alternatively, to seek<br />
leave to file a supplementary affidavit.<br />
2. An affidavit could not be amended as it is made up of evidence, which the deponent of such affidavit tenders on<br />
oath. If after the affidavit is sworn and tendered to court or to any other body the deponent realizes that there are<br />
errors in it, the only lawful option available to him for setting out the correct factual position is through a supplementary<br />
affidavit.<br />
3. Pursuant to section 72 (3) of the Constitution, the police were obliged to explain to the court their reason for taking<br />
the accused to court so long after the expiry of the 14 days which the law allowed them. The onus was on the police<br />
to demonstrate that they took the applicant to court as soon as was reasonably practicable<br />
4. The body of the victim could not be identified until the members of the deceased’s family were traced and without<br />
the post mortem results, the cause of death could not be established. As long as the cause of death was not ascertained<br />
by the pathologist or by any other duly qualified medical practitioner, it would have been premature to prefer charges<br />
of murder.<br />
5. The scope of the reasons or explanations for not bringing an accused person to court within the prescribed time<br />
which may be acceptable to the court could not be exclusively delineated. So long as the explanation proffered was<br />
reasonable and acceptable, no problem would arise. Each case had to be considered on the basis of its peculiar facts<br />
and circumstances. In deciding whether there had been a breach of section 72 (3) of the Constitution, the Court had<br />
to act on evidence.<br />
6. Section 71 of the Constitution protected the right to life. However even though the deceased had been killed, the<br />
court could not use section 71 of the Constitution as a counter-weight to section 72(3) as an accused person is deemed<br />
to be innocent until and unless his guilt is proved. Nonetheless, the court had an obligation to give effect to section<br />
70 of the Constitution which provided that the rights and freedoms were subject to the rights of others and for public<br />
interest. Although the accused was entitled to his fundamental rights and freedoms, the enjoyment of the same was<br />
subject to the respect for the rights and freedoms of others and to public interest.<br />
7. Public interest required the court to carry out its mandate of dispensing justice without fear or favour. Whilst an<br />
accused person is presumed innocent until and unless he is proved guilty, public interest required the court to determine<br />
whether or not the accused was guilty. That could only be done if the prosecution was given the opportunity to lead<br />
evidence, during a trial. But then again, the courts had to also safeguard the fundamental rights of an accused person.<br />
It was for that reason that the court remained ever vigilant in the course of carrying out its mandate<br />
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8. The failure to bring the appellant to court within the prescribed time only entitled the appellant to compensation<br />
for breach of his rights as was provided for under section 72 (6) of the Constitution. That section was an integral part<br />
of the Constitution which expressly provided for a remedy in situations where section 72 (3) was said to have been<br />
violated.<br />
9. It was in the public interest to have the trial proceed to its logical conclusion.<br />
Application dismissed.<br />
Election petition: Threshold of irregularities warranting nullification of election<br />
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR<br />
April 16, 2010<br />
L. Kimaru J.<br />
High Court at Nairobi (Milimani Commercial Courts)<br />
Reported by Njeri Githang’a<br />
Election law-election petition- parliamentary election- election petition seeking to nullify and<br />
declare void the election of the first respondent as Member of Parliament for Juja Constituency<br />
-irregularities in elections – petitioner citing several irregularities in the conduct of elections<br />
- whether the irregularities were sufficient to warrant nullification of the election- National<br />
Assembly and the Presidential Elections Act (Cap 7)<br />
Election law-election petitions-jurisdiction-High court’s jurisdiction in determination of election<br />
petitions-factors to be considered by the court- the Constitution, the National Assembly and the<br />
Presidential Elections Act, the Election Rules and Regulations -general principles recognized by<br />
the law as constituting the proper conduct of a valid election- nature of election petitions- an<br />
election a signification of the exercise of the democratic rights of the people to have a person of<br />
their choice represent them in the National Assembly- whether the court had jurisdiction to hear<br />
the matter-Constitution of <strong>Kenya</strong> Section 44- National Assembly and the Presidential Elections<br />
Act(Cap 7) Section 19<br />
The Hon. Justice<br />
L. Kimaru<br />
Election law -elections-fair and free elections -right of a people to freely elect their representative in a credible electoral<br />
process - test as to what constitutes free and fair elections - internationally acceptable standard -whether the complaints<br />
made by the petitioner were such that, apart from establishing the particular electoral malpractice or irregularity, they<br />
impacted on the rights of the voters of the constituency to have a person of their choice represent them in the National<br />
Assembly - whether the election as conducted could be said to have been free and fair-Article 25 of the International<br />
Convention on Civil and Political Rights (1966)- Article 21 of the Universal Declaration of Human Rights<br />
Election law-election petition-standard of proof in election petitions- burden of proof on the petitioner-standard of proof<br />
slightly higher than the one adopted in civil cases but not as high as in criminal cases- standard of proof ordinarily applied<br />
by the court in civil cases where an allegation of fraud has been made -need for the court to be satisfied that the allegation<br />
of fraud had been properly established-whether the required standard of proof had been established<br />
Election law-electoral offences and election malpractices –election posters- printing of election posters that do not disclose<br />
the name and address of the publisher - whether the fact that a party to an election petition did not specify on the face of his<br />
election poster the name and the address of the printer or publisher could result in the nullification of an election –code of<br />
conduct-conduct of the Returning Officer-Returning Officer alleged to have aided the first respondent gain unfair electoral<br />
advantage against the petitioner- bribery-the culprit a civic candidate in the said elections -whether the petitioner had<br />
proved those allegations to the required standard of proof-Election Offences Act section 11 (1) and 11(1) (b)<br />
Election law- electoral officials- Electoral Commission of <strong>Kenya</strong> (ECK) officials presiding over the nomination of both<br />
the parliamentary and civic candidates of a political party-whether by virtue of ECK participation in the parliamentary<br />
nomination, an impression was created that it was partial to that political party during the general elections- the<br />
Presidential and Parliamentary Election Regulations<br />
Election law- electoral documents-election result- manner in which results are to be recorded- Form 16A and Form 17A-<br />
Form 16As lacking the signatures of the presiding officers- persons other than presiding officers filling Forms 16A- need<br />
for all the presiding officers to sign and stamp the Form 16As for the same to be considered valid- statutory comments in<br />
the Forms 16A- failure by the presiding officers to give reasons for the failure or refusal by the candidates or their agents<br />
to sign the Form 16A- completion of Form 17A- whether the third respondent accepted invalid results which he tallied and<br />
included in the final results as contained in Form 17A- Presidential and Parliamentary Elections Regulations (Cap 7 Sub<br />
Leg) Regulation 35A(1) (b), 35A(5)(b) 35A(7) and (8) 40(1)<br />
Election law-ballot boxes-scrutiny of ballot boxes- integrity of nearly a third of ballot boxes in question- some ballot boxes<br />
tampered with in the period between the time the defunct Electoral Commission of <strong>Kenya</strong> (ECK) was disbanded and the<br />
constitution of the second respondent-whether the ballot boxes could be scrutinized and ballot papers recounted<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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Election results-alteration of results- Forms 16A- results of specific candidates altered without the presiding officer<br />
countersigning the cancellation or alteration- need for electoral documents containing results to be verified by other<br />
parties, including the members of the public -whether the cancellations and alterations in the Form 16As produced in the<br />
court raised question regarding the veracity and authenticity of the said results- discrepancies between the presidential<br />
and civic elections -elections conducted from one voter’s roll- difference of over 5,000 votes between the parliamentary<br />
vote and the presidential and the civic vote - whether the difference was evidence of serious electoral malpractice that<br />
was apparent during the conduct of the elections<br />
The petitioner had filed an election petition contesting the election of the first respondent as the Member of Parliament<br />
for Juja Constituency on the ground that his election involved serious irregularities and malpractices committed by the<br />
second and third respondents. The second respondent was the Electoral Commission of <strong>Kenya</strong> (ECK) while the third<br />
respondent was the ECK’s Returning Officer. The ECK was subsequently disbanded by a Constitutional amendment<br />
that established the Interim Independent Electoral Commission (IIEC) as its successor and the IIEC had succeeded to<br />
the suit in the place of the ECK.<br />
It was the petitioner’s case that the evidence disclosed a litany of serious electoral malpractices by the ECK on account<br />
of which the results announced for the parliamentary election could not be said to have been valid. The petitioner<br />
raised several complaints among them; that the said election was not conducted in accordance with the provisions of<br />
the National Assembly and Presidential Elections Act or the Regulations and principles made thereunder.<br />
It was alleged that the election had not been conducted in accordance with the principles of common law and the<br />
principles of natural justice and all that seriously affected the election to the detriment of the petitioner. The petitioner<br />
complained that the tallying and the totaling of the results was inaccurate and that the ballot boxes for the votes cast<br />
in the elections were opened and ballot papers counted, totaled and tallied in the absence of the petitioner and his<br />
agents.<br />
It was the Petitioner’s case that the declaration of the results of each polling station as contained in the Forms 16A<br />
remitted to ECK were not verified and witnessed by the petitioner and or his agents nor were any reasons given for<br />
the third respondent’s failure to procure the petitioner’s or his agents verification and endorsement on the declared<br />
results. The petitioner was of the view that the declared results were therefore false, fictitious and unlawful.<br />
Held;<br />
1. Section 44 of the Constitution gave the High Court the jurisdiction to hear and determine the question whether a<br />
person had been validly elected as a Member of the National Assembly. In determining the validity of an election, the<br />
court would take into consideration the provisions of the Constitution, the National Assembly and the Presidential<br />
Elections Act, the Election Rules and Regulations made thereunder, and the general principles recognized by the law<br />
as constituting the proper conduct of a valid election.<br />
2. In determining election petitions, the High Court was required to bear in mind that election petitions were not<br />
ordinary suits where a party was enforcing a right that accrued to him as a person. An election was a signification<br />
of the exercise of the democratic rights of the people to have a person of their choice represent them in the National<br />
Assembly.<br />
3. The test as to what constituted free and fair elections would of necessity be the internationally acceptable standard<br />
of what constitutes such free and fair elections. The Court had to consider whether the complaints made by the<br />
petitioner were such that, apart from establishing the particular electoral malpractice, or irregularity, impacted on<br />
the rights of the voters.<br />
4. Ordinarily, the Court would not interfere with the democratic choice of the voters unless it was established to the<br />
required standard of proof that there were irregularities and electoral malpractices that rendered the said elections null<br />
and void and therefore subject to nullification. It would not be sufficient for the petitioner to establish that irregularities<br />
or electoral malpractices did occur: he had to establish that the said electoral malpractices were of such a magnitude<br />
that it substantially and materially affected the outcome of the electoral process in regard to the elections.<br />
5. The standard of proof in election petitions was higher than that which was applied in ordinary civil cases. The<br />
burden of establishing that any election offence was committed to justify the nullification of the election was on the<br />
petitioner.<br />
6. Out of the 231 ballot boxes, 66 of them appeared to have been tampered with. In the circumstances, the court could<br />
not order for a scrutiny and recount of the ballots.<br />
7. Under the Universal Declaration of Human Rights, international treaties, the Constitution of <strong>Kenya</strong> and the National<br />
Assembly and Presidential Elections Act, the right of a people to freely elect their representative in a credible, free and<br />
fair electoral process was a human right and elections were to be held to internationally acceptable standards.<br />
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8. Election posters not disclosing the name and address of the printers was an election offence under the Election<br />
Offences Act punishable by imprisonment for up to four years. Where any person was aggrieved, such a person was<br />
required to lodge a criminal complaint with the police. The fact that a party to an election petition did not specify on<br />
the face of his election poster the name and the address of the printer or publisher could not result in the nullification<br />
of an election.<br />
9. Although the petitioner proved that the first respondent’s supporters distributed leaflets that were defamatory<br />
of his character, such distribution was localized in scope that it could not be said to have materially and substantially<br />
affected the conduct and the results of the parliamentary election.<br />
10. The petitioner failed to establish the claim that the third respondent was influenced by the first respondent in<br />
the employment of the presiding officers and polling clerks during the said parliamentary elections.<br />
11. The election offence of bribery had been established. However, the culprit was a civic candidate in the said elections<br />
and court could not therefore reach a conclusion with certainty that the said culprit was bribing voters on his own<br />
behalf or on behalf of the first respondent as he was in the same party as the first respondent.<br />
<strong>12</strong>. The election regulations were meant to govern the conduct of the election from the time the voters were registered<br />
to the time the results of the elections were announced. It provided an elaborate procedure by which presiding officers<br />
were required to conduct an election and later announce results. The election regulations were meant to entrench and<br />
promote the principles of free, transparent and fair elections.<br />
13. The participation by the Electoral Commission of <strong>Kenya</strong> (ECK) in the nominations of a political party that was<br />
to later contest the general elections was against the principles of independence and impartiality and against the<br />
ECK’s own Code of Conduct which prohibited its officials from associating with a political party. An electoral body was<br />
supposed to conduct elections impartially and even a seemingly innocent association with any of the contesting parties,<br />
particularly the party in power, would raise questions as to its impartiality and neutrality.<br />
14. A Form 16A which was not signed by a Presiding Officer could not constitute valid results capable of being accepted<br />
for tallying by a Returning Officer. Further, a Form 16A which was not authenticated by the stamp of the electoral body<br />
could not be said to contain valid results. The Returning Officer had accepted invalid results and included them in the<br />
final results expressed in Form 17A.<br />
15. Forms 16A in respect of some of the polling stations had been filled by persons who were not in ECK’s official list<br />
of designated Presiding Officers. The Returning Officer had wrongly delegated the responsibility.<br />
16. The presiding officers did not provide statutory comments as required by the law and further failed to allow the<br />
agents of the candidates to authenticate the results by signing on the Form 16As.<br />
17. The Election Regulations required a Presiding Officer to request each candidate or their agents to sign against<br />
the results on Form 16A and where a candidate or agent was absent or failed to sign, the Presiding Officer was to state<br />
the absence or the reasons for the lack of the signature. The participation of candidates or agents in an election was<br />
not incidental or cosmetic to the election process but an important component of it. Failure to state the reasons was a<br />
breach of a mandatory legal requirement and it rendered invalid the results contained in the Forms.<br />
18. The third respondent failed to verify or confirm that the results filled in the Form 17A were the true and correct<br />
results of all the polling stations in the constituency. The Form 17A was not dated. It was evident that the third<br />
respondent, if at all, filled the Form 17A in the absence of the candidates. That was the reason why the candidates,<br />
including the first respondent, failed to append their respective signatures on the said Form 17A. The said Form 17A<br />
could not therefore be said to be a valid legal instrument or statutory form containing the declared results.<br />
19. Whereas the regulations did not specify what ought to be done where there are cancellations and alterations,<br />
common sense dictated that where there was a cancellation or alteration in a statutory form, the same should be<br />
countersigned by the concerned official. In the case of electoral documents, it was important that the statutory forms<br />
which contain results that will invariably be required to be verified by other parties, including the members of the<br />
public, should be written without any alterations or cancellations. The cancellations and alterations in the Form 16As<br />
produced in the court raised question regarding the veracity and authenticity of the said results.<br />
20. The Electoral Commission had a duty to inculcate and imbue confidence in the electorate that its process was<br />
transparent, free and fair.<br />
21. There was a wide discrepancy in the total vote tally between the parliamentary, civic and presidential election. In<br />
normal circumstances, the variation in the tallies of the total votes cast for all the civic, parliamentary and presidential<br />
candidates would be marginal. The difference of over 5,000 votes between the parliamentary vote on the one hand and<br />
the presidential and the civic vote on the other was evidence of serious electoral malpractice.<br />
22. The totality of the electoral irregularities was of such a magnitude that the parliamentary election could not be<br />
said to have been free and fair.<br />
Petition allowed<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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Burial dispute: Luo customary law and the burial of a married woman<br />
Charles Onyango Oduke & Another v Samuel Onindo Wambi<br />
Civil Case No 143 of 2009<br />
High Court, at Kisumu<br />
April 9,2010<br />
Ali Aroni. J<br />
Reported by Andrew Halonyere<br />
Customary law – burial dispute – deceased wish to be interred/buried in her piece of land – defendant’s (deceased<br />
father- in -law) claim that he had a customary right to decide the burial place - Luo customary law in regard to burial<br />
of a married woman – claim by the plaintiffs that the defendant and his family mistreated the deceased during her life<br />
time and were therefore undeserving to bury her remains – effect of the deceased wish vis a vis Luo customary law on<br />
burial – factors the court should consider when applying customary law – whether in the circumstances the wishes of the<br />
deceased should be respected – Judicature Act (Cap 8)section 3 (2).<br />
The first plaintiff was the brother of (Veronica), the deceased and the second plaintiff was the deceased adopted son.<br />
The two plaintiffs brought a suit in the High Court challenging the claim of the defendant, who was the deceased’s<br />
father-in-law, that he was entitled under Luo customary law to bury the remains of the deceased.<br />
The plaintiff’s case was that the defendant and his family mistreated the deceased during her lifetime and as a result<br />
of the mistreatment, the deceased had established a home in Kakamega and on many occasions declared to her family<br />
and friends her wish to be interred on the said piece of land, in the event of her death. The plaintiffs further submitted<br />
that although the deceased was a Luo by tribe and thus subject to Luo customary law, the defendant’s attitude did<br />
not accord him the customary law right to bury her remains and she ought to be interred on her land in Kakamega<br />
according to her wishes.<br />
The defendant on the other hand denied the allegation that the deceased had made a wish to be buried on her piece of<br />
land, arguing that if there was such a wish, it was not unequivocal as there was no other place to bury her other than<br />
in Kamagambo, Rongo District. The defendant submitted that interring her on his land would be in accordance with<br />
her personal law which was Luo customary law. The defendant further submitted that customarily the right to bury<br />
the deceased rested on him and did not lie with the plaintiffs, arguing that the deceased and his son remained married<br />
up to the time of her death. The defendant strongly contended that because his son was sick, as the head of the family,<br />
the right to bury the deceased lay with him.<br />
The main issue before the court was whether the deceased had left a wish stating where she wanted to be buried, if<br />
the answer was in the affirmative and what was the effect of the said wish against Luo customary law on burial of a<br />
married woman.<br />
Held:<br />
1. Section 3(2) of the Judicature Act (Cap 8) required that while applying customary law, the courts should ensure<br />
that the same was not repugnant to justice and morality, and cases on customary law should be decided based on<br />
substantive justice.<br />
2. The Courts ought to give effect to the wishes of the deceased as far as possible unless for good reasons for example<br />
if the wishes were contrary to custom.<br />
3. The conduct and attitude of the defendant and the family were such that they were undeserving to bury the remains<br />
of the deceased and they could not therefore be heard to claim a customary right.<br />
4. Substantial justice would only be achieved if the wish of the deceased was respected.<br />
5.Obiter “Although the defendant is undeserving to bury Veronica, his wish to bury her may be an attempt by him and<br />
the rest of the family to make amends with the dead.”<br />
The body of the deceased would be released to the First Plaintiff and the defendant or anyone of them for interment in<br />
the Kakamega property in accordance with Catholic rituals as the deceased had directed.<br />
Advocates<br />
Mr. S. K’opot and Mr. A. Oyuko for the plaintiffs<br />
Mr. C. Ayayo for defendant.<br />
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Nyayo House ‘torture chambers’: compensation for human rights violations<br />
Wachira Weheire v Attorney-General [2010] eKLR<br />
Miscellaneous Civil Case 1184 of 2003<br />
April 8, 2010<br />
H. M. Okwengu & G. Dulu JJ.<br />
High Court at Nairobi (Nairobi <strong>Law</strong> Courts)<br />
Reported by Njeri Githang’a<br />
Constitutional law-fundamental rights and freedoms-right to liberty - protection against<br />
arbitrary search-fair trial -freedom of assembly and association - protection from discrimination<br />
–whether there was enough evidence to prove that the said rights had been violated-Section<br />
72(1), 76(1), 77 (a),80(1) and 82(3)<br />
Constitutional <strong>Law</strong> – fundamental rights – rights of an accused person – right to be brought<br />
to court within a reasonable time after arrest –arrested person brought to court after 16 days -<br />
failure by the prosecution to offer an explanation–alleged breach of the right to protection against<br />
torture or to inhuman treatment-whether there was a violation of the petitioners constitutional<br />
rights – Constitution of <strong>Kenya</strong> section 72(3), (b) 74(1)<br />
Constitutional law-fundamental right and freedoms-limitation period-time within which to seek<br />
redress for breach of the rights- need to bring proceedings as early as possible- where there was<br />
no limitation under the Constitution<br />
The Hon. Lady Justice<br />
H. M. Okwengu<br />
Statutes-interpretation of statutes- Public Authorities Limitations Act-inconsistency with the Constitution-limitation<br />
provisions under the Public Authorities Limitations Act –whether the Public Authorities Limitations Act could override<br />
the Constitution and be used to curtail rights provided under the Constitution- Constitution of <strong>Kenya</strong> section 3, Public<br />
Authorities Limitations Act<br />
Constitutional law- fundamental rights and freedoms –procedure-manner in which a claim for the violation of the<br />
constitutional rights should be brought - sufficiency of facts-failure to raise the claim at the preliminary stage-where the<br />
pleadings were supported by evidence -whether there was breach of any fundamental rights<br />
Constitutional law – fundamental rights and freedoms-rules of procedure- Constitutional issue arising from the subordinate<br />
court- where the procedure required a party to raise the constitutional issue in proceedings before the subordinate court<br />
which would be then referred to the High Court for determination–where there was an alternative of filing it directly to<br />
the High Court-whether the application was competent-the Constitution of <strong>Kenya</strong> (Supervisory Jurisdiction and Protection<br />
of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001, rule 9<br />
Constitutional <strong>Law</strong>-jurisdiction-jurisdiction of the High Court to deal with the issue of violation of constitutional rightsclaim<br />
that the Truth, Justice and Reconciliation Commission (TJRC) could deal with the issue-whether the court could<br />
abdicate the responsibility to an inferior tribunal<br />
Constitutional law- fundamental rights and freedoms- breach of -award of damages- special damages neither pleaded<br />
nor proven-exemplary damages-whether it was appropriate to award exemplary or aggravated damages- whether general<br />
damages could be awarded<br />
Nyayo House in Nairobi, (now the<br />
headquarters of the Immigration<br />
Department) where the petitioner<br />
said he had been incarcerated and<br />
tortured.<br />
The petitioner filed a constitutional reference under section 84 of the Constitution and<br />
the Constitution of <strong>Kenya</strong> (Supervisory Jurisdiction and Protection of Fundamental<br />
Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001<br />
alleging breach of his fundamental rights and freedom.<br />
The petitioner alleged that he had been a victim of the “Nyayo Torture Chambers”.<br />
It was his case that he was arrested in December, 1986 and was locked up at Jogoo<br />
Road Police Station. He was later taken to the basement of Nyayo House in Nairobi,<br />
where he was held for 16 days and subjected to various acts of physical, mental and<br />
psychological torture. The petitioner averred that the acts that he was subjected<br />
to namely; being kept hungry and without sleep for several days, being physically<br />
assaulted by being kicked, whipped and burned with cigarettes, pricked with pins,<br />
hose-piped and placed naked in water-logged cells, were all cruel and degrading<br />
treatment and therefore constituted a violation of section 74(1) of the Constitution.<br />
He was subsequently arraigned in the Chief Magistrate’s Court at Nairobi on charges<br />
of taking an illegal oath and failure to prevent a felony and was convicted on his own<br />
plea of guilty. The petitioner appealed to the High Court in 1987, which appeal was<br />
rejected. He was hence confined in prison where he served his sentence until August,<br />
1989. According to the applicant, he could not lodge his claim immediately upon his<br />
release as he had to wait until after the year 2002 when there was a change in Government.<br />
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In objecting to the claim, the State submitted that the matters complained of could be adequately adjudicated upon by<br />
the Truth, Justice, and Reconciliation Commission. In enacting the Truth Justice and Reconciliation Commission Act,<br />
Parliament was concerned that some of the transgressions against the country and its people could not be properly<br />
addressed by the judicial institutions due to procedural and other hindrances and that this constituted such a case.<br />
The State asserted that there had been an inordinate delay in filing the claim. It was argued that the complaints being<br />
tort in nature should have been brought within twelve months from the date on which the cause of action accrued as<br />
provided for under section 3 of the Public Authorities Limitation Act.<br />
It was argued that the petitioner having been arraigned in court, he ought to have raised the issues regarding the<br />
violation of his rights at that stage. He had been tried by a court of competent jurisdiction and his appeal dismissed<br />
and hence the High Court was functus officio. It was further submitted that since the petitioner had been convicted<br />
on his own plea of guilty, he had acquiesced to the magistrate’s decision by appealing against the decision instead of<br />
challenging the constitutionality of the proceedings.<br />
Held:<br />
1. Neither section 84 of the Constitution, nor the Constitution of <strong>Kenya</strong> (Protection of Fundamental Rights and<br />
Freedoms of the Individual) Practice and Procedure Rules, provided for any limitation period for bringing actions to<br />
enforce fundamental rights.<br />
2. Section 3 of the Constitution provided that the Constitution had the force of law throughout <strong>Kenya</strong>, and if any other<br />
law was inconsistent with the Constitution, the Constitution had to prevail. The provisions of the Public Authorities<br />
Limitations Act (Cap 36) limiting the period for initiating actions against public authorities was inconsistent with the<br />
Constitution, to the extent that it limited a party’s rights to seek redress for contravention of his fundamental rights.<br />
The Public Authorities Limitations Act could not override the Constitution and it could not therefore be used to curtail<br />
rights provided under the Constitution. The petitioner’s claim arising from violation of his constitutional rights was<br />
hence not statute barred.<br />
3. A person, who came to court under Section 84 of the Constitution alleging contravention of his fundamental rights,<br />
was required to be candid with regard to the alleged contraventions, the sections contravened, as well as facts supporting<br />
the contravention. However, the issue of sufficiency of facts set out in the summons and supporting affidavits, was a<br />
preliminary issue which ought to have been raised before the hearing of the originating summons, and directions of the<br />
court sought. It was hence late for the defendant to complain about the sufficiency of facts at the hearing stage. Besides,<br />
the facts deponed to by the petitioner, provided a sufficient base for the petitioner’s claim regarding the infringement<br />
of his rights under the Constitution.<br />
4. Although the issue of the contravention of the petitioner’s constitutional rights could have been raised before<br />
the trial magistrate, and referred to the High Court for determination, it was not mandatory. The petitioner had the<br />
alternative of filing an application directly to the High Court (as he eventually did), under rule 9 of the Constitution of<br />
<strong>Kenya</strong> (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court<br />
Practice and Procedure Rules, 2001<br />
5. Although there was no time limitation for claims regarding violation of fundamental rights and freedoms of the<br />
individual, there was need to bring proceedings to court as early as possible. However, the petitioner had reasonably<br />
explained that he had been confined in prison and upon his release, he could not immediately lodge his claim until<br />
after the year 2002, when elections were held and there was change in the Government.<br />
6. The petitioner had come to court seeking redress for specific violations of his fundamental rights under the supreme<br />
law of the land. Nothing had been laid before the court to show that there was any hindrance, procedural or otherwise,<br />
to the court addressing the violations complained of. The court not only had powers to deal with the issue of violation<br />
of constitutional rights, but it also had a responsibility to uphold the Constitution of <strong>Kenya</strong>. There was therefore no<br />
reason why the court could abdicate that responsibility to the Truth, Justice and Reconciliation Commission which<br />
was an inferior Tribunal.<br />
7. Violation of the petitioner’s right to personal liberty under Section 72(1) and (3)(a) & (b) of the Constitution was<br />
clearly confirmed by the charge sheet and the proceedings in the Chief Magistrate’s Court. No explanation had been<br />
offered to the High Court and there was no justification for the police to hold the petitioner for a period of 16 days.<br />
8. The presence of the Nyayo House Torture Chamber was not in dispute. The fact that the defendant had not attempted<br />
to deny these allegations under oath was an indication that the allegations were true. The acts that the petitioner was<br />
subjected to were all cruel and degrading treatment and therefore a violation of Section 74(1) of the Constitution which<br />
provided against torture or inhuman or degrading punishment or to any other treatment.<br />
9. The alleged house search was not unlawful search as under Section 76 of the Constitution. The search of the<br />
petitioner’s house was related to the criminal charge with which the petitioner was subsequently arraigned in court. The<br />
petitioner’s right to protection against arbitrary search or entry as provided under Section 76(1) of the Constitution<br />
was not absolute but was subject to subsection (2) which allowed such search in the interest of defence, public safety<br />
and public order or maintenance of public security.<br />
10. The petitioner had relinquished his constitutional rights under Section 77 of the Constitution with regard to fair<br />
trial by submitting to a plea of guilty. He further acquiesced in the Chief magistrate’s decision by appealing from that<br />
decision instead of challenging the constitutionality of the proceedings.<br />
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11. Confinement in prison was in accordance with Section 72(1) (a) of the Constitution and therefore lawful.<br />
<strong>12</strong>. There was no evidence in support of the allegations that the petitioner’s rights to protection of freedom of assembly<br />
and association under Section 80(1) and protection from discrimination under Section 82(3) of the Constitution were<br />
violated.<br />
13. The petitioner’s constitutional rights to personal liberty under Section 72 of the Constitution were violated and the<br />
petitioner’s rights to protection against torture, degrading and inhuman treatment under Section 74 of the Constitution<br />
were also violated and hence an award of damages was appropriate.<br />
14. The petitioner had not specifically pleaded or proved any special damages and in light of the acknowledged<br />
change in the government, and the attempts at dealing with human rights violation, it was inappropriate to award<br />
exemplary or aggravated damages.<br />
Petitioner awarded the sum of Kshs.2.5 million as general damages<br />
Application for an Order of Stay of Proceedings<br />
Piedmont Investment Limited v Standard Assurance Limited & 2 Others<br />
Civil case no 806 of 2003<br />
High Court at Nairobi<br />
Kimaru. J<br />
March 25,2010<br />
Reported by Andrew Halonyere<br />
Civil practice and procedure – stay of proceedings – application for an order of stay of proceedings – application filed by<br />
former directors of the first defendant under statutory management – failure by the former directors of the first defendant<br />
to disclose to the Court of Appeal the status of the first defendant- where the High Court had issued a restraining order<br />
against the defendants from interfering with the suit property - whether the Court of Appeal in granting an order of<br />
stay of proceedings in the High Court meant staying the restraining order issued by the High Court – whether the former<br />
directors of the first defendant had the legal capacity to appear before the Court of Appeal- whether the High Court’s<br />
restraining order superceded any other order issued by the High Court-Insurance Act (Cap 487) section 67(2) (1) - Court<br />
of Appeal Rules Rule 5(2)(b).<br />
Land law – transfer of land –dispute as to title to land - claim that the second defendant had secured from the first defendant<br />
land through fraudulent means in violation of a court order - where the second defendant further transferred the suit<br />
land to a third party – whether the first and second defendants had legal capacity to transfer the land – inherent power<br />
of the High Court to rectify an act done in contempt of it’s orders - whether the third party was an innocent purchaser for<br />
value without notice.<br />
The High Court in a suit filed by the plaintiff regarding the suit land, issued an order restraining the former directors of<br />
the First Defendant from dealing with the suit property pending the hearing and determination of the suit. The former<br />
directors of the First Defendant were aggrieved by the court’s decision and filed an appeal to the Court of Appeal.<br />
Contemporaneous with filing the appeal, the First Defendant filed an application under Rule 5(2) (b) of the Court of<br />
Appeal Rules, seeking an order to stay proceedings in the High Court pending the hearing and determination of an<br />
intended appeal. The Court of Appeal, while making a ruling in respect of the application granted an interim stay to<br />
last until the determination of the application.<br />
The plaintiff on its part, by an application to the High Court supported by the statutory manager of the First Defendant,<br />
sought orders to revert the suit land to the First Defendant. The plaintiff submitted that the former directors of the<br />
First Defendant, in full knowledge that they had no authority or legal capacity to deal with the property of the First<br />
Defendant, went ahead and had secured the transfer of the suit property to the Second Defendant, a company to which<br />
they had an association with, arguing that the transfer was secured by the former directors by lodging with the land<br />
registry a previous order of the High Court which had been superceded by a subsequent order of the High Court.<br />
The Second and Third Defendants opposed the application by submitting that the High Court lacked jurisdiction to<br />
proceed with the application since the Court of Appeal had stayed further proceedings in the suit. The Third Defendant<br />
further submitted that he was an innocent purchaser for value without notice.<br />
Held:<br />
1. In granting an order staying proceedings before the High Court, the Court of Appeal did not stay the order of the<br />
High Court which restrained the First Defendant from transferring the suit property to any third party pending the<br />
hearing and determination of the suit. The Court of Appeal stayed proceedings in the High Court pending further<br />
orders from the High Court.<br />
2. The former directors of the First Defendant failed to inform the Court of Appeal that the management status<br />
of the First Defendant had changed, therefore the former directors of the First Defendant had no legal capacity to<br />
appear before the Court of Appeal when they knew very well that the First Defendant had been placed under statutory<br />
management.<br />
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3. The former directors of the First Defendant could not abuse the due process of the court and subvert the course<br />
of justice by manipulating judicial process and then take a moral high ground and claim that they were enforcing their<br />
right in the same courts. The High Court had jurisdiction to hear and determine the matter before it especially where<br />
it appeared that the due process of the court was being hijacked for unlawful purpose.<br />
The High Court had inherent jurisdiction to grant orders to rectify an act which had been done fraudulently and in<br />
contempt of its orders. The inherent powers of the High Court would be invoked where it became apparently clear<br />
that a party to a suit was bent on manipulating the judicial process for unlawful purpose.<br />
4. The order issued by the High Court in respect of the suit property directing that status quo be maintained and<br />
prohibiting any transaction in respect of the suit property pending further orders from the High Court, superceded any<br />
other orders issued in the suit by any other Judge. It was therefore clear that the former directors of the First Defendant<br />
fraudulently obtained the removal of the court order earlier registered by the plaintiff in the title.<br />
5. The Second Defendant had no legal capacity to pass good title to the Third Defendant when in the first place it had<br />
secured the transfer to itself by clear fraud. The Third Defendant’s consolation was that it could secure a refund of the<br />
purchase consideration from the Second Defendant.<br />
Application allowed, ownership of the suit property would revert back to the First Defendant within fourteen days or in<br />
default, the title unlawfully held by any party would be declared cancelled.<br />
Registration of a Political Party<br />
Isaiah Gichu Ndirangu v Registrar of Political Parties [2010] eKLR<br />
Miscellaneous Application 377 of 2009<br />
February 16, 2010<br />
RPV. Wendoh J.<br />
High Court at Nairobi (Nairobi <strong>Law</strong> Courts)<br />
Reported by Njeri Githang’a<br />
Judicial Review-mandamus-application to compel the Registrar of Political parties to register<br />
the Party of Democratic Unity and issue it with a registration certificate- order of prohibition<br />
to bar the Registrar from declaring the party unlawful-requirements to be met before a party<br />
could be registered-whether the applicant had met all the mandatory requirements<br />
Judicial Review-rules of procedure-pleadings- grounds to be relied upon in the Notice of Motion<br />
those pleaded in the statutory statement- applicant raising new grounds not pleaded-whether<br />
the new arguments were acceptable- Civil Procedure Rules Order 53 Rule 4 (1)<br />
Political Party-registration of parties-requirements- a proposed party to have not less than<br />
two hundred members who were registered voters for purpose of parliamentary elections<br />
from each province- where the applicant could not comply with that requirement as the voters<br />
register had been done away with following the disbandment of the Electoral Commission<br />
of <strong>Kenya</strong> (ECK)-Constitution of <strong>Kenya</strong> (Amendment) Act section 41A (d) replacing the ECK<br />
with the Interim Independent Electoral Commission of <strong>Kenya</strong> (IIEC)-the voters register being<br />
done away with and IIEC mandated to compile a new register-requirement for registration of<br />
parties- Registrar declining to accept the applicant’s documents pending the compilation of a<br />
The Hon. Lady Justice<br />
RPV. Wendoh<br />
fresh register of voters -whether the Registrar had acted illegally in declining to register the applicant’s party- Constitution<br />
of <strong>Kenya</strong> (Amendment) Act, 2008, section 41A (d)-Political Parties Act sections 18, 19 and 23<br />
The applicant, the Chairman of the Party of Democratic Unity, sought orders of judicial review to compel the respondent,<br />
the Registrar of Political Parties, to register the party and issue it with a registration certificate and an order of prohibition<br />
to bar the Registrar from declaring the party unlawful.<br />
The applicant had previously written to the Registrar on December 19, 2008 seeking extension of time of 180 days<br />
so that the party could comply with Section 23 of the new Political Parties Act. However, on December 30, 2008 the<br />
respondent instructed the applicant to amend the party’s constitution as required by section 9 of the Act within 3<br />
months. He duly complied and amended the party’s constitution and the respondent received it and stamped it and<br />
asked for the list of voters as required by Section 23 of the Political Parties Act. He submitted his documents on June 5,<br />
2009 and applied for full registration but the Registrar declined to accept the documents for reasons that the Electoral<br />
Commission of <strong>Kenya</strong> had been disbanded.<br />
The applicant alleged that the Registrar was malicious because that was not a new party but only that it had not been<br />
issued with registration certificate within the time stipulated by law.<br />
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In opposing the Notice of Motion, the Registrar deponed that she had written to the Party highlighting the transitional<br />
provisions under section 44 of the Political Parties Act. The provisions specified that the political parties that were<br />
in existence when the Act came into force had 180 days to apply for full registration and the period was to expire on<br />
December 31, 2008. However, the applicant failed to meet that deadline and the voters register ceased to exist after<br />
the Constitutional Amendment Act, 2008 came into force on December 29, 2008 which amended Section 41 of the<br />
Constitution creating the Interim Independent Electoral Commission (IIEC), which became the successor of the Electoral<br />
Commission of <strong>Kenya</strong> (ECK). The ECK having been disbanded, the Voters’ Register was done away with.<br />
Held:<br />
1. Section 18 of the Political Parties Act required all organizations which functioned as political parties to be<br />
registered in accordance with the Act. Subsection (2) allowed for provisional registration of a proposed party. A<br />
provisional registration was required to be accompanied with the party’s Constitution and then comply with Section<br />
19. Section 23 set out the requirements for full registration. A proposed party must have been previously registered,<br />
with not less than two hundred members who were registered voters for purposes of parliamentary elections from<br />
each province. The applicant having had provisional registration, he had to comply with the rest of the requirements<br />
before full registration.<br />
2. The applicant could not comply with Section 23 of the Political Parties Act in order to be fully registered as by June<br />
2009 when he submitted his documents, the Constitution of <strong>Kenya</strong> (Amendment) Act had come into operation and the<br />
ECK and the voters register had been done away with. There was nothing to compare with to confirm the membership<br />
of the party. The Registrar was therefore correct in declining to accept the applicant’s documents till the IIEC could<br />
come up with another voters’ register.<br />
3. Section 41 A (d) of the Constitution of <strong>Kenya</strong> (Amendment) Act, 2008 gave the IIEC the mandate to create a new<br />
voters register and undertake registration of voters. The applicant had been caught up in the web of time between the<br />
repealed provisions of the Constitution and the coming into force of the Political Parties Act.<br />
4. The Registrar had not acted illegally but strictly in accordance with the law. The party could not be registered in<br />
contravention of to the requirements for registration. For an act to be illegal the Registrar had to have acted contrary<br />
to the provisions of the law or misunderstood the law that regulated his decision in this case, the Political Parties Act<br />
and the Constitution of <strong>Kenya</strong> (Amendment) Act, 2008.<br />
5. By ‘illegality’ as a ground for judicial review the decision maker had to understand correctly the law that regulated<br />
the decision making power and had to give effect to it. The Registrar’s decision was within the law and could not be<br />
faulted.<br />
6. The applicant had to wait for the IIEC to come up with another voters register so that he could comply with sections<br />
18 and 23 of the Political Parties Act.<br />
7. In Judicial Review the grounds to be relied upon in the Notice of Motion were those pleaded in the statutory<br />
statement and none could be introduced during the hearing of the Notice of Motion. Order 53 Rule 4 (1) of the Civil<br />
Procedure Rules barred an applicant from relying on any other grounds except those set out in the statement. The<br />
applicant purported to introduce other grounds of malice or bias in his arguments but those were not pleaded and<br />
hence were unacceptable.<br />
Application dismissed.<br />
Advocates<br />
Isaiah Gichu Ndirangu for Applicant<br />
Mr. Kipkogei for Respondent<br />
Jurisdiction of a Provincial Land Disputes Committee<br />
Issack Maina Murathe v Jesidah Wanjiru Murathe<br />
Civil Appeal No 87 of 2007<br />
High Court at Embu<br />
Karanja. J<br />
February 16,2010<br />
Reported by Andrew Halonyere<br />
Land law –jurisdiction of the Provincial Land Disputes Committee – where the Provincial Land Disputes Tribunal directed<br />
the sub-division of the appellant’s land and issuance of land title deeds to the respondent – whether the Tribunal had<br />
jurisdiction to interfere with the appellant’s proprietory rights – whether the Tibunal acted ultra vires the Land Disputes<br />
Tribunals Act –whether the appeal had merit- Land Disputes Tribunal Act of 1990 section 3(1).<br />
The Provincial Land Disputes Committee directed that the appellant’s land be sub-divided and the respondent be<br />
given one acre and title documents to the land. Being aggrieved, the appellant brought an appeal to the High Court<br />
challenging the decision of the committee.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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FROM THE COURTS — HIGH COURT<br />
The issue before the High Court was whether the Provincial Land Disputes Committee had jurisdiction over proprietory<br />
rights.<br />
Held:<br />
1. The Jurisdiction to handle claims under the Land Disputes Tribunal was provided for under Section 3(1) of the Land<br />
Disputes Tribunal Act of 1990. This section provided for division of or determination of boundaries to land, including<br />
land held in common, claim to occupy or work land and trespass to land. Therefore the Tribunal’s jurisdiction did not<br />
extend to determining ownership of land and cancellation or alteration of Title Deeds.<br />
2. The Tribunal/Provincial Land Disputes Committee directive that the appellant’s land be sub-divided and the<br />
respondent be issued with a Title Deed, was clearly an interference with the proprietory rights of the appellant,<br />
conferred on him under the Registered Land Act (Cap 300).<br />
3. <strong>Issue</strong>s of ownership of Registered Land and alteration or cancellation of Title Deeds were strictly within the domain<br />
of the High Court and the subordinate court in few instances depending on the value of the land. The orders made by<br />
the Tribunal/Provincial Land Disputes Committee though well intentioned, were therefore ultra vires the law and the<br />
same were null and void for all intents and purposes. Had the respondent been given the right to work and occupy<br />
the land without the order that she be given the Title Deed, the award would have been sustained.<br />
Appeal allowed.<br />
Advocate<br />
Maina Kagio for the Appellant<br />
Challenge of the by-laws under the Certified Pubic Secretaries of <strong>Kenya</strong> Act<br />
Republic v Institute of Certified Public Secretaries Of <strong>Kenya</strong> Ex Parte, Mundia Njeru Geteria<br />
Miscellaneous Civil Case No.322 Of 2008<br />
February <strong>12</strong>, 2010<br />
RPV. Wendoh J.<br />
High Court at Nairobi (Nairobi <strong>Law</strong> Courts)<br />
Reported by Njeri Githang’a<br />
Judicial Review-certiorari-ultra vires by- laws-applicant seeking to challenge by-laws made under the Certified Pubic<br />
Secretaries of <strong>Kenya</strong> Act -claim that the by-laws were a nullity and void having been made by the respondent (Institute of<br />
Certified Public Secretaries) in excess of its powers-whether the orders sought could be granted<br />
Judicial Review-certiorari-rules of procedure-time within which to institute proceedings-whether Order 53 rule 2 Civil<br />
Procedure Rules included anything covered by the principle of ultra vires or nullities or decisions made without jurisdictionduty<br />
of the applicant to demonstrate that the decision was a nullity or was made without jurisdiction-whether the court<br />
had the jurisdiction to hear the matter- Civil Procedure Rules Order 53 rule 2<br />
Judicial Review-approbation and reprobation–relevance of the conduct of the applicant - applicant to approach the<br />
court with utmost good faith- applicant having been a beneficiary of the By-laws he purported to challenge-whether the<br />
applicant was entitled to the discretionary orders of Judicial Review<br />
Statutes- Certified Pubic Secretaries of <strong>Kenya</strong> Act -promulgation of regulations under the Act-powers donated only to<br />
the Minister in charge-respondent purporting to promulgate regulations-whether the respondent had the power to make<br />
Regulations- provisions of the Act vis-à-vis the by-laws- by-laws 27 to 38 inconsistent and in conflict with section 9 and<br />
the second schedule of the Act-by-laws purporting to provide for Council meetings and elections –provision already in the<br />
second schedule of the Act- whether the Regulations in relation to the elections of the meeting were a nullity ab initio-<br />
Certified Pubic Secretaries of <strong>Kenya</strong> Act (Cap 534) sections 7, 9 and 37,<br />
Statutes–subsidiary legislation–procedure in promulgating subsidiary legislation–gazettement- requirement that all<br />
subsidiary legislation to be gazetted- where there was no evidence that the impugned Regulations were ever gazetted as<br />
required by law-whether the regulations had the force of law-Interpretation and General Provisions Act, (Cap 2) Section<br />
27<br />
The ex parte applicant, a member of the Institute of Certified Public Secretaries of <strong>Kenya</strong> (ICPSK) sought to challenge<br />
the election of Council members of ICPSK during the 17 th ICPSK Annual General Meeting (AGM) for being ulta vires<br />
the Act and Regulations under which the elections were conducted. He sought to have them declared null and void on<br />
the ground that the respondent had exceeded its powers in making them.<br />
The ICPSK had given notice of its 17 th AGM where elections were to be done. By then, the applicant who was a Council<br />
Member presented his nomination papers to the secretary seeking to be elected as Chairman of the Institute and<br />
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FROM THE COURTS — HIGH COURT<br />
tendered a conditional resignation under By-<strong>Law</strong> 28 but questioned the legality of the said by-<strong>Law</strong> by letter and also<br />
in the meeting. The issue of the legality of by-<strong>Law</strong> 28 was ignored on the ground that his resignation from the Council<br />
had been accepted though it was factually incorrect that he had offered to record his conditional resignation but it<br />
was rejected. The applicant raised an objection that if he was not elected, he should retain his Council position until<br />
2009. He argued that the by-laws were illegal and inconsistent with the Act. After deliberations, it was decided that<br />
the applicant had validly resigned from the Council and was a candidate for chairmanship.<br />
In opposing the Notice of Motion, the Chief Executive and Secretary of the ICPSK deponed that the application had<br />
been brought out of time. It was contended that under Section 37 of the Act, the Minister was empowered to make<br />
regulations prescribing anything required to be done under the Act.<br />
It was further argued that Section 7 of the Act empowered the Institute to perform certain functions and pursuant to<br />
that, the institute tabled and adopted its first by-laws on June 13, 1995 at an AGM which included provisions on election<br />
of Chairman and Council members. It was also contended that the applicant was not entitled to judicial review orders<br />
as he was approbating and reprobating. It was alleged that he been a beneficiary of the said regulations since he had<br />
served as a Council Member since their promulgation and only sought to challenge them after his loss.<br />
Held;<br />
1. Order 53 rule 2 of the Civil Procedure Rules did not include anything covered by the principle of ultra vires or<br />
nullities or decisions made without jurisdiction. A decision which was a nullity ‘ab initio’ was no decision at all and an<br />
order of certiorari could lie at any time. In the circumstances, the by-laws/regulations could not be said to be challenged<br />
outside the time allowed. It was however upon the applicant to demonstrate that they were nullities or made without<br />
jurisdiction. The court had jurisdiction to hear and determine the matter.<br />
2. Section 37 of the Certified Pubic Secretaries of <strong>Kenya</strong> Act mandated the Minister to make regulations prescribing<br />
anything or for purposes of giving effect to the Act. The Minister in charge had not promulgated any regulations under<br />
that section. Though the respondent purported to promulgate the impugned by-laws under Section 7 of the Act,<br />
nothing in that section stipulated provisions to suggest that the ICPSK had power to make the regulations. The power<br />
to promulgate the regulations was specifically donated to the Minister and if the intention of the legislature was to<br />
donate those powers to the respondent, that would have been specified.<br />
3. Under Section 27 of the Interpretation and General Provisions Act (Cap 2), subsidiary legislation had to be gazetted.<br />
There was no evidence that the impugned regulations were ever gazetted as required by law and it was not known when<br />
they came into force. ICPSK had no power to promulgate any regulations and whatever was held out as regulations<br />
had not been gazetted and had no force of law<br />
4. By-laws 27 to 38 were inconsistent and in conflict with section 9 and the second schedule of the Act. As they were<br />
a duplication of what was contained in the second schedule. The by-laws purported to provide for Council meetings<br />
and elections. There already were provisions relating to the Council in the Act and ICPSK’s promulgation of other<br />
regulations to apply in place of the Act and second schedule was ultra vires. The regulations in relation to the elections<br />
of the meeting were hence a nullity ab initio.<br />
5. The conduct of a party seeking judicial review orders was an important fact to consider. A party who approached the<br />
court for judicial review orders had to do so with clean hands and in utmost good faith. The applicant was approbating<br />
and reprobating and could not be entitled to judicial review orders. The doctrine of approbation and reprobation<br />
required for its foundation inconsistency of conduct, as where a man, having accepted a benefit given him by a judgment<br />
cannot allege the invalidity of the judgment which conferred the benefit.<br />
Application allowed in part; an order of certiorari issued to quash the impugned by-laws<br />
Advocates<br />
Mr. Kibe for Applicant<br />
Mr. Chacha for Respondent<br />
Common intention in a ‘mob justice’ case.<br />
Republic v Peterson Karani Njogu<br />
Criminal Case 40 of 2008<br />
M.S.A. Makhandia<br />
February 5 th 2010<br />
Court Station: Nyeri<br />
Reported by Monica Achode<br />
Criminal <strong>Law</strong> - common intent-several persons acting in concert to execute a common action - mob beating of a suspected<br />
criminal-“mob justice”-necessary ingredients in proving common intent and motive-court position where evidence<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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establishes that the accused person’s were acting jointly and or on common design-malice aforethought-whether failure<br />
to prove motive vitiated an accused persons conviction-whether it was necessary to prove motive as one of the elements<br />
in a criminal offence-whether the prosecution discharged its onus of establishing a prima facie case against both accused<br />
persons-Penal Code (Cap 63) 9, section 203, 204,<br />
Criminal Practice and Procedure-witness-prosecution witness-prosecution failing to call the investigating officer as<br />
a witness in the trial-other witness categorically placing the accused at the crime scene-circumstances under which the<br />
evidence of the investigating officer would have been required-effect of failing to call the investigating officer-whether<br />
the lack of evidence left a gap in the prosecution’s evidence<br />
Criminal Practice and Procedure-defence-defence of alibi-accused person raising defence of alibi-accused claiming that<br />
the complainants had a grudge against him-viability of the defence-whether the defence was an afterthought<br />
The accused persons were arraigned<br />
before the High Court on an information<br />
charging them with murder contrary to<br />
section 203 as read with section 204 of<br />
the Penal Code (Cap 63). During the trial<br />
a total of nine witnesses testified for the<br />
prosecution. The evidence was that the<br />
accused person had been among a mob<br />
of people who had gone to the deceased’s<br />
home and inflicted fatal injuries on him<br />
allegedly because they suspected him<br />
of theft. Most of the witnesses testified<br />
to knowing both accused persons<br />
personally.<br />
A post-mortem examination of the<br />
deceased’s body, a report of which had been adduced in evidence, stated that the deceased had multiple bodily injuries<br />
and that he had suffered brain damage due to serious head injuries.<br />
In their defence the accused persons claimed not to have known the deceased. It had been their contention that they<br />
were not in the mob that attacked the deceased on the material day and further that the witnesses had a grudge against<br />
them.<br />
Held:<br />
1. Failure to prove motive did not, per se, vitiate an accused person’s conviction because under section 9 of the Penal<br />
Code motive was not one of the necessary elements to be proven in a criminal offence. However even if motive was<br />
necessary, it could be found in the evidence of the witnesses who apparently alongside the deceased, were allegedly<br />
being disciplined for having stolen.<br />
2. Where the case against two accused persons proceeded on the basis of their acting in concert then both could be<br />
found guilty, if the evidence established that they were acting jointly and or on common design. It did not matter that<br />
they were in an amorphous group. The deceased was a victim of their mob justice. The action of each of them during the<br />
execution of the mandate was the action of all others as it was in pursuance of a common purpose. The action herein<br />
of the accused was in furtherance of that common purpose and the action of each affected the other.<br />
3. There was no law to the effect that in every case the investigating officer had to testify. Such cases were confined to<br />
their peculiar facts and circumstances. In this case, the evidence of the investigating officer would have been necessary<br />
if there had been loose ends in the prosecution case that required tying up. There was no unbridgeable gap in the<br />
prosecution case that his/her evidence would have been of assistance.<br />
4. The accused person’s defence of alibi when juxtaposed against the overwhelming prosecution evidence failed to<br />
stand. The witnesses had no reason to have a grudge against the accused and the defence was a mere afterthought. It<br />
was the accused in the company of others who inflicted fatal injuries on the deceased that led to his subsequent death.<br />
They were properly and positively identified in the act by the witnesses. They knew that their actions would probably<br />
cause and indeed did cause the death of the deceased.<br />
Accused convicted<br />
Advocates<br />
Ms Mwai counsel for the accused<br />
Mr. Makura Senior State Counsel<br />
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Infringement of Trademark Rights<br />
Glaxo Group Limited v Syner-med Pharmaceuticals Ltd<br />
Miscellaneous Application 792 of 2009<br />
High Court at Nairobi<br />
L. Kimaru. J<br />
February 4, 2010<br />
Reported by Andrew Halonyere.<br />
Intellectual Property – infringement of trademark rights – appeal against the decision of the Registrar of Trademarks to<br />
register the respondent’s trade name “SYNERCEF” – appellant’s contention that the trade name was phonetically similar in<br />
pronunciation and appeared visually similar to another registered trademark “ZINACEF” – whether there was infringement<br />
of trade mark rights - whether the appeal had merit – Trademark Act (Cap 506) sections 7,14,15,18 (1),(3) and 52.<br />
The appellant and the defendant were both pharmaceutical companies engaged in the<br />
manufacture and sale of pharmaceutical products. The appellant registered a trademark<br />
“ZINACEF” in <strong>Kenya</strong> in respect of class 5 in relation to pharmaceutical and medicinal<br />
preparations under the Trade Marks Act. The respondent applied to the Registrar of<br />
Trademarks to register the trade name “SYNERCEF” as a trademark in the same class. The<br />
appellant opposed the registration of the trademark on the ground that it sounded phonetically<br />
and appeared visually the same as the appellant’s trademark “ZINACEF”.<br />
The Registrar of Trademarks, having heard representations made by the appellant and<br />
the respondent, dismissed the appellant’s opposition on among other grounds, that the<br />
pronunciation and semantics of the first syllables were different.<br />
Being aggrieved by the decision, the appellant, pursuant to the provisions of Section 21(6) & (7) of the Trade Marks<br />
Act filed an appeal to the High Court.<br />
The issue before the High Court was whether the Registrar had reached the correct decision in disallowing the opposition<br />
by the appellant for the registration of the trademark “SYNERCEF”.<br />
Held:<br />
1. It was evident that the Registrar of Trade Marks fell in error when he truncated the name “SYNERCEF” and “ZINACEF”<br />
by excluding the suffix “CEF” and thereby reaching the wrong conclusion that the prefix “SYNER” and “ZINA” had no<br />
meaning and therefore the subsequent registration did not constitute an infringement of the appellant’s trade name.<br />
The correct position of the law was that in such cases, the words that were the subject of the dispute relating to a<br />
trade name should have been considered as a whole and not in the manner that the Registrar did. If the Registrar had<br />
considered the words as a whole he would undoubtedly have arrived at a different decision. Therefore it was clear that<br />
the words “SYNERCEF” and “ZINACEF” were phonetically similar in pronunciation and it was likely to cause confusion<br />
and deception in the market.<br />
2. The Court took Judicial notice of the fact that many people in <strong>Kenya</strong> were likely to pronounce the letter “SY” as<br />
“ZI” and therefore the two names would be pronounced in a phonetically identical manner and not distinctly as was<br />
claimed by the respondent.<br />
3. The fact that the two products sold by the appellant and the respondent were prescription only, did not preclude<br />
the fact that confusion would have been caused when an order was made orally or by telephone to such professions<br />
such as pharmacists or doctors.<br />
4. The name “SYNERCEF” was so similar, phonetically and visually to the registered trade mark of the appellant<br />
“ZINACEF” to an extent that it would cause confusion and deception in the minds of the public.<br />
Appeal allowed, registration of “SYNERCEF” as a trademark cancelled.<br />
Advocates<br />
Mr Kinoti for the Appellant,<br />
Mr Sharad Rao for the Respondent<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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FROM THE COURTS — HIGH COURT<br />
Change of Presiding Officer in the Course of Trial<br />
Joseph Mwangi Esop v Republic<br />
Criminal Appeal 107 of 2008<br />
25 th January 2010<br />
M.S.A Makhandia, J.<br />
High Court at Nyeri<br />
Reporter by Monica Achode<br />
Case History<br />
Appeal from the original conviction and sentence of the Senior Resident Magistrate’s Court at Karatina in SRMCR.992<br />
of 2006 by L. MBUGUA - SRM<br />
Criminal <strong>Law</strong>-rape-appeal against a charge of rape-alternative charge of indecent assault-where three days had lapsed<br />
before the incident was reported-appeal on grounds that the appellant had been charged with a non-existent provision<br />
of the laws-where the Sexual Offences Act (No. 3 of 2006) had already come into law at the time-Penal Code (Cap 63)<br />
section 140<br />
Criminal Practice and Procedure-trial- trial conducted by two magistrates in succession – right of an accused person<br />
to have the case start afresh in such circumstances - accused person having asked the succeeding magistrate that the trial<br />
of the case should start afresh – request having been denied – whether the trial court had misdirected itself – Criminal<br />
Procedure Coe (Cap. 75) section 200(3)<br />
The appellant brought an appeal against the decision of the lower court convicting him on a charge of rape. Amongst<br />
the grounds for appeal were that the appellant had been convicted on a non-existent provision of law. At the time of<br />
his arrest and charging the Sexual Offences Act (No. 3 of 2006) had already come into force yet he had been charged<br />
under the Penal Code (Cap 63) section 140 (now repealed).<br />
The appellant also claimed that the magistrate’s court had misdirected itself in failing to follow section 200 of the Criminal<br />
Procedure Act (Cap 75) which provided that where a succeeding magistrate commenced the hearing of proceedings<br />
and part of the evidence had been recorded by his predecessor, the accused person could demand that any witness be<br />
re-summoned and reheard and the succeeding magistrate was bound to inform the accused person of that right.<br />
Held:<br />
1. The appellant was convicted on a non-existent provision of the law and offence. At the time the appellant was<br />
charged, the Sexual Offences Act had come into force thereby repealing the offence of rape as defined under section<br />
140 of the Penal Code. The Sexual Offences Act had come into force on July 21, 2006 yet the appellant was alleged to<br />
have committed the offence on October 9, 2006. He could therefore only have been charged under the Sexual Offences<br />
Act and not the Penal Code.<br />
2. The fact that the trial was presided over by two magistrates entitled the appellant to demand to have the case<br />
start de novo. In overruling that request the trial court grossly misdirected itself and misapprehended section 200(3)<br />
of the Criminal Procedure Code which were couched in mandatory terms. The trial court ought to have acceded to<br />
and acted upon the demand by the appellant to have the case commence de novo. In the premise, the appellant was<br />
unfairly tried.<br />
Appeal allowed, conviction quashed and appellant set free.<br />
Advocate<br />
Mr. Makura learned Senior Sate Counsel<br />
Period of Limitation in Contracts of Carriage by Air<br />
Farida Abdullahi Ibrahim & 2 Others v Gulf Air Limited [2010] Eklr<br />
Civil Appeal 95 of 2002<br />
R. N. Sitati<br />
High Court at Nairobi<br />
January 22nd, 2010<br />
Reporter by Monica Achode<br />
Case History<br />
An Appeal from the ruling of the Senior Principal Magistrate, Mr. C.O. Kanyangi delivered on June 13, 2002 in Nairobi<br />
CMCC No. E J 406 of 2001, Farida Abdukahi Ibrahim, Asnah Abudllahi, Ibrahim and Nagma Abudllahi Ibrahim.<br />
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Contract - carriage by air- period of limitation in such contracts- appeal against the decision<br />
of the trial court declaring that the suit had been time barred and not based on contract-suit<br />
by air passenger against an airline operator - defendant refusing to allow the appellant access<br />
onto a connecting flight due to appellant’s lack of valid travelling documents- time within<br />
which the cause of action ought to have been brought -period of limitation being two years–<br />
interpretation of Article 29(2) of the Warsaw Convention-whether this was a special contract<br />
to which the <strong>Law</strong> of Contract did not apply - whether the suit was time barred-Carriage by<br />
Air Act (2 of 1993) - Civil Procedure Act (Cap 21) Section 3A- Civil Procedure Rules Order 6<br />
Rule 13(1)(a -Warsaw Convention on Carriage by Air, Article 29 of the as amended by The<br />
Hague Protocol, (1995)<br />
The appellants/plaintiffs brought an appeal against the decision of a magistrate’s court<br />
striking out their suit for damages against the respondent/defendant, an airline operator.<br />
The appellants commenced the action by filing a plaint on June 14 th 2001. The claim had<br />
The Hon. Lady Justice<br />
R. N. Sitati<br />
arisen out of the respondent’s refusal to allow the appellants access onto a connecting flight in Abu Dhabi on or about<br />
December 20 th 1998. In doing so, the appellants averred, that the respondent left the three minor appellants stranded<br />
at a transit toll in Abu Dhabi Airport where they spent three days out in the cold. The appellants further claimed that<br />
in the ensuing confusion their luggage worth Kshs 72,000/= was also lost and/or misplaced by the respondent.<br />
The respondent on its part claimed that it had been unable to<br />
perform its part of the contract on grounds that the plaintiffs did not<br />
possess valid travel documents to enable them enter Germany. It<br />
was their claim that the suit did not lie against them as it had been<br />
extinguished by the provisions of the Carriage by Air Act (2 of 1993)<br />
and sought to have it struck out. It further claimed that the cause<br />
of action was time barred by the express provisions of the Act. The<br />
defendant’s application to strike out was based on the contention<br />
that the cause of action arose on December 21, 1998 and the suit,<br />
which had been filed in June 14 th 2001, ought to have been filed<br />
within two years reckoned from that date.<br />
As regards the appellants’ alleged lost luggage, the respondent<br />
averred that the said luggage had only been misplaced and that when the luggage was eventually found, it was<br />
forwarded to the appellants on December 30, 1998. The respondent claimed that the appellants accepted the same and<br />
acknowledged such receipt in writing. The respondents denied that they were in breach of the contract of carriage.<br />
In its ruling striking out the suit the trial court found that the action had been brought after the two year period allowed<br />
under the Carriage by Air Act, having been filed six months after the period had expired. The trial court found that it<br />
had been improperly placed before the court.<br />
The issues before the superior court were whether there had indeed been a contract of carriage by air between the<br />
appellants and the respondents and if so, whether it had been breached; whether it was a special contract to which<br />
the law of contract did not apply; and whether indeed the suit had been time barred.<br />
Held:<br />
1. As per section 7(1) of the Carriage by Air Act no action against a carrier’s servant or agent which arose out of damage<br />
to which the Warsaw Convention on Carriage by Air Convention related would, if he was acting within the scope of his<br />
employment, be brought after more than two years, reckoned from the date of arrival at the destination or from the<br />
date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.<br />
2. Under Article 29 of the Warsaw Convention on Carriage by Air the suit ought to have been filed on or before<br />
December 21, 2000 but was not filed until June 14, 2001, six months outside of the statutory period and without leave<br />
of court. The carriage stopped on December 21, 1998. Therefore the suit was filed out of time.<br />
3. Any claims relating to the periods prior to the cause of action which was more than two years before the lodging<br />
of the counter claim and set off were extinguished by virtue of Article 29 of the Convention.<br />
Appeal dismissed.<br />
Advocates:<br />
M/s Nyakianga for the Plaintiff/Applicant<br />
Mr. Wasonga for the Defendant/Respondent<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
77
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — HIGH COURT<br />
Procedure in taking witness testimony in court<br />
Charles Wanjohi Murage v Republic<br />
Criminal Appeal 80 of 2007<br />
M. S. A. Makhandia<br />
High Court at Nyeri<br />
November 25 th , 2009<br />
Reporter by Monica Achode<br />
Case History<br />
Appeal from the original conviction and sentence of the Chief Magistrate’s Court at Nyeri in Criminal Case No. 80 of<br />
2007 by L.W. GITARI - SPM<br />
Criminal Practice and Procedure - witnesses-witness testimony-manner in which witness testimony may be taken in<br />
court -record of the trial failing to show whether the witnesses had been sworn or affirmed before their evidence was<br />
received-circumstances under which witness could be allowed to testify without being sworn and or affirmed-first appellate<br />
court being in doubt as to whether the witnesses had been sworn in-person in whose favor the doubt ought to have been<br />
resolved-whether the appellant had been prejudiced by a conviction on unsworn evidence.<br />
Criminal Practice and Procedure-retrial-application for retrial-witnesses in the original trial having testified without<br />
being sworn in-prosecution having proved its case against the appellant beyond reasonable doubt-circumstances under<br />
which a retrial would have been ordered-whether a retrial would prejudice the appellant.<br />
The appellant brought an appeal against a sentence of fourteen years imposed by a<br />
magistrate’s court on a charge of rape contrary to section 3(1) and (3) of the Sexual<br />
Offences Act (Act no. 3 of 2006). He had also been charged with one count of robbery<br />
with violence contrary to Section 296 (2) of the Penal Code (Cap 63) and an alternative<br />
charge of indecent act contrary to section 11(1) of the Sexual Offences Act. On the<br />
additional counts, the trial court acquitted him and made no finding on them.<br />
The appeal was based on the grounds that the appellant had been held in custody for<br />
a period in excess of the 24 hours permitted by the Constitution, that he might have<br />
been a victim of mistaken identity, the evidence led against him was inconsistent and<br />
contradictory and finally that his defence was not given due consideration. It was the<br />
State Counsel’s opinion that there had been sufficient evidence to support the charge<br />
and that the prosecution’s evidence was corroborated, consistent and had proved<br />
beyond reasonable doubt that the complainant was raped by the appellant.<br />
The determination of the appeal turned on a narrow and technical aspect as to how<br />
the trial magistrate treated the witnesses who turned up before her to testify. From the record it appeared that all<br />
the witnesses who testified had not been sworn in, though this point was not raised or canvassed by any party to the<br />
appeal. The prosecution sought a retrial.<br />
Held:<br />
1. It was a mandatory requirement in criminal proceedings and indeed all court proceedings that witnesses be sworn<br />
and/or affirmed. Only in very rare circumstances was a witness allowed to testify without being sworn and/or affirmed,<br />
for instance in the case of evidence by a child of tender years. However, such evidence would only be admissible if the<br />
child had been subjected to voire dire examination by the trial court.<br />
2. It was very unlikely that a Senior Magistrate would have allowed witnesses to testify without being sworn. However<br />
being a court of record the superior court would go by the record of the trial. From the record of the trial court, it was<br />
apparent therefore that all the witnesses testified without being sworn. Any doubts on that score would be resolved<br />
in favor of the appellant. Unsworn evidence was of very little or no value at all. It could not therefore be said that the<br />
appellant had not been prejudiced when he was convicted on unsworn evidence.<br />
3. Ordinarily such a case would have called for a retrial. However a retrial was not to be ordered if it would accord<br />
the prosecution and indeed the court an opportunity to mend its ways. If a retrial had been ordered, that’s exactly what<br />
would have happened. A retrial in the circumstances would not have been appropriate.<br />
Appeal allowed.<br />
Advocate<br />
Mr. Makura, Senior State Counsel, for the Republic<br />
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KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
ISSUES FOR LAW REFORM<br />
LAW REFORM<br />
Does violation of constitutional rights amount to an automatic acquittal?<br />
Republic v Desmond Mukhaya Mulusa [2010] eKLR<br />
Criminal Case 86 of 2007<br />
April 20 , 2010<br />
Fred A. Ochieng J.<br />
High Court at Nairobi<br />
Reported by Njeri Githang’a<br />
The applicant who had been charged with murder, made a constitutional application to the court with a claim that<br />
his constitutional rights under sections 70 (a) and 72 (3) (b) and 77 (1) of the Constitution had been violated. In<br />
particular, the accused asserted that his detention for six months beyond the period of 14 days from the date of his<br />
arrest, constituted a violation of his constitutional rights.<br />
The jurisprudence in the interpretation of this issue continues to expand commensurately with the variety of unique<br />
circumstances on which different cases may be based. The Court of Appeal in Alex Wafula v Republic [2009] eKLR, held<br />
that each case will stand or fall on its peculiar facts and circumstances.<br />
Justice Ochieng in this case took the view that the court had an obligation to give effect to the provisions of section<br />
70 of the Constitution which provided that the rights and freedoms were subject to the rights of others and for public<br />
interest. Although the accused was entitled to his fundamental rights and freedoms, the enjoyment of the same was<br />
subject to the respect for the rights and freedoms of others and to public interest.<br />
According to the judge, public interest required the court to carry out its mandate of dispensing justice, without fear<br />
or favour. Whilst an accused person is presumed innocent until and unless he is proved guilty, public interest required<br />
the court to determine whether or not the accused was guilty. That could only be done if the prosecution was given<br />
the opportunity to lead evidence, during a trial.<br />
The judge invoked Section 72 (6) which provides that<br />
“A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that<br />
other person”<br />
It was observed that, the failure to bring the appellant to court within the prescribed time only entitled the appellant<br />
to compensation for breach of his rights as was provided for under section 72 (6) of the Constitution. Section 72 (6)<br />
of the Constitution was an integral part of the Constitution which expressly provided for a remedy in situations where<br />
section 72 (3) was said to have been violated.<br />
The constitutionality of a constitutional clause - Interpretation of the Constitution.<br />
Jesse Kamau & 25 others v Attorney General [2010] eKLR<br />
Misc. Civil Application 890 of 2004<br />
High Court at Nairobi<br />
J.G. Nyamu, RVP Wendo & A. Emukule JJJ<br />
May 24, 2010<br />
By Nicholas Okemwa<br />
The suit was filed by twenty four applicants representing various religious leaders and the gist of their case was that<br />
the inclusion of the Kadhi’s Courts in the Bomas Draft Constitution was unconstitutional. The decision (also reported<br />
in the ‘Feature Case’ column of this edition) raised a number of significant jurisprudential issues.<br />
The constitutionality of a constitutional provision and the Kadhi’s Court’s Act section 4<br />
Perhaps the most significant issue is the question of the constitutionality of an existing constitutional provision.<br />
This begs the question as to what is the measure of constitutionality. The applicants had argued that Section 66<br />
of the Constitution of <strong>Kenya</strong> which introduced and entrenched Kadhis’ Courts in the Constitution infringed on the<br />
Constitutional rights of the applicants to equal protection of the law embodied in Sections 70, 78, 79, 80 and 82 of the<br />
Constitution and to that extent was discriminatory, unconstitutional and ought to have been expunged in its entirety<br />
from the said Constitution.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
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KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
ISSUES FOR LAW REFORM<br />
Counsel for the State argued that there was no constitutional provision that was more superior to another.<br />
The Court did not agree with the submission by State Counsel. In the Court’s opinion:<br />
• The rights embodied in the Bill of Rights were inherent or natural rights and they could not be taken away<br />
by the State. Parliament did not have the power to take away the basic structures of the constitutional<br />
“sanctum” - the Bill of Rights, the security of tenure of Judges, which is the cornerstone of the rule of<br />
law, and the democratic provisions of Section IA of the Constitution.<br />
• The courts have the jurisdiction to declare conflict or inconsistency in the constitutional provisions,<br />
or to declare whether or not the provisions are in conflict with any values, principles or purposes of a<br />
democratic constitution such.<br />
• The High Court did not have jurisdiction to strike out or alter Section 66 of the Constitution or indeed any<br />
other section even if the section contradicted another section of the same Constitution. The process of<br />
altering Section 66 of the Constitution or indeed any other provision of the Constitution was the mandate<br />
of the National Assembly. Ultimately, only the people had the power to enact a new constitution.<br />
• The entrenchment of Section 66 establishing the Kadhis’ Courts in the Constitution was inconsistent<br />
with section 65 which grants Parliament power to establish other courts subordinate to the High Court.<br />
Section 66 was inconsistent with the secular nature of the state as it favoured one religion in preference<br />
to other faiths.<br />
• Section 4(2) (b) of the Kadhis’ Courts Act was inconsistent with section 66(4) of the Constitution and<br />
was therefore void to the extent of the inconsistency.<br />
Interpretation of the Constitution and the El Mann doctrine<br />
There are two predominant schools of thought of constitutional interpretation: the broad liberal way and the technical,<br />
narrow manner commonly referred to as the ‘Elmann doctrine’ after the case of Republic vs. Elmann [1969] E.A. 357.<br />
Other jurisdictions with much more developed jurisprudence have more schools of constitutional interpretation. Such<br />
jurisdictions include the USA and Australia which have had constitutions for a long period of time.<br />
One school of thought consists of Originalists. They are of the opinion that the best way to interpret the Constitution<br />
is to determine how its framers intended the Constitution to be interpreted. They look at several sources to determine<br />
this intent, including the contemporary writings of the framers, and the notes from the Constitutional Convention itself.<br />
The High Court in this case examined the genesis of the Independence Constitution including the treaty between the<br />
Sultan of Zanzibar and the <strong>Kenya</strong>n government.<br />
• The Court looked at the intention of the framers and surmised that their intention was that the Kadhis’<br />
courts should only have jurisdiction within the former protectorate.<br />
• Further, the High Court gave a restatement of the Elmann doctrine. It reiterated that the Elmann doctrine<br />
has mistakenly been construed to say that the Constitution would be construed like any other ordinary<br />
statute. It opined that the said decision reiterated two cardinal principles of interpretation: a liberal<br />
interpretation in certain contexts where the words used are ambiguous and imprecise and where the<br />
words used are precise and unambiguous, they will be construed in their literal meaning. This approach<br />
taken by the court may lead constitutional lawyers and scholars to re-examine their interpretation of the<br />
case of Republic Vs. Elmann.<br />
Separation of Religion and State<br />
Finally, the suit raised the issue of separation of religion and State. One of the main contentions by the applicants was<br />
that the Kadhis’ courts are funded from the State coffers and therefore the State was promoting one religion over the<br />
others. They also contended that <strong>Kenya</strong> was a secular State. The court held that:<br />
• Sections 1 and 1A of the Constitution signified that <strong>Kenya</strong> was indeed a secular state. Sovereignty encompassed<br />
the independence of the people of <strong>Kenya</strong> and a multiparty democratic state encompassed<br />
the admission of the diversity of social economic and political thought.<br />
• Sovereignty and multipartyism encompassed the way of life the people of <strong>Kenya</strong> had adopted and signified<br />
that <strong>Kenya</strong> was a secular state. Religion via section 66 had stepped out of its own sphere and encroached<br />
on that of lawmaking in the sense that it was made to coerce the state into enacting religious principles<br />
and commandments into law thereby breaching the separation of religion and State.<br />
80<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
ISSUES FOR LAW REFORM<br />
Procedure in the discipline, investigation and/or removal of a Judge - Scope of the authority of a<br />
Tribunal established to investigate the conduct of a Judge under section 62 of the Constitution<br />
Republic v Chief Justice of <strong>Kenya</strong> & 6 others ex-Parte Ole Keiwua [2010] eKLR<br />
High Court of <strong>Kenya</strong> at Nairobi<br />
M. Apondi, G. Dulu & M. Warsame JJ<br />
April 20, 2010<br />
This judicial opinion in this case (also reported in the ‘Feature Case’ column of this edition), concerned the procedure<br />
in the discipline, investigation and removal of a Judge from office. The Judicial Review court that was considering an<br />
application by a suspended Judge of Appeal challenging a Tribunal appointed to investigate his conduct made certain<br />
pronouncements that shed new light on the administrative actions that should precede the appointment of such a<br />
Tribunal and the scope of the Tribunal’s mandate. These pronouncements are pertinent to and would inform the<br />
ongoing debate on the proper procedure in the disciplining and/or removal of judges.<br />
The High Court held, among other things, that:<br />
• Under section 61(2) of the Constitution, a Judge is appointed after the President has received the advice<br />
of the Judicial Service Commission (JSC) that a person is fit and competent to hold the office of a Judge.<br />
When a question arises as to the removal of a Judge, it is essential to seek and obtain the advice, guidance,<br />
contribution and direction of the JSC as it was the same body that had given the advice to the President<br />
that it was okay to employ him in the first instance. Since the Chief Justice as the Chairman of the JSC<br />
had mandated the Integrity and Anti-Corruption Committee of the Judiciary [the Ringera Committee]<br />
in 2003 to conduct investigations into the conduct of judicial officers, the JSC ought to have been the<br />
first branch that ought to have authorized the next step.<br />
• The role of the JSC would be to determine whether the act complained about is of the nature and degree<br />
to qualify as misconduct sufficient to set in the processes that may lead to an adverse representation<br />
being made to the President. Such an examination would include seeing and hearing the complainant<br />
and the Judge separately for that would serve to inform and enhance a balanced and proper evaluation<br />
of the circumstances that has arisen which is likely to lead to removal of a Judge.<br />
• The representation to the President to appoint a Tribunal is such a grave and serious matter with severe<br />
consequences of likely to remove a Judge from office that it is mandatory for the Judge to be given<br />
a hearing either by the JSC or by the Chief Justice before the representation is made to the President.<br />
The Judge ought to be heard by the JSC prior to the commencement of the removal exercise. Though the<br />
Constitution was silent on this, a presumption arose that the Legislature did not intend to deny natural<br />
justice to the applicant or to any other Judge.<br />
• The President has no power to empower a tribunal to conduct an inquiry or investigation other than<br />
or outside the representation he receives from the Chief Justice. In this case, it was not proper for the<br />
Tribunal to purport to gather evidence and to engage investigators to sustain what it was calling charges<br />
against the applicant<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
81
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
LEGISLATIVE UPDATE<br />
FROM THE LEGISLATION NOTICE BOARD; A SYNOPSIS OF THE WITNESS PROTECTION<br />
AMENDMENT ACT 2010<br />
By Ann Asugah, Ag. Assistant Editor and Head of <strong>Law</strong>s of <strong>Kenya</strong> Department<br />
In the quarter ended April to June 2010, five (5) Bills were published for debate in Parliament;<br />
1. The Wildlife (Conservation and Management) (Amendment) Bill 2010<br />
2. The Tea (Amendment) Bill 2010<br />
3. The Finance Bill 2010<br />
4. The Insurance (Motor Vehicle Third Party Risks) (Amendment) Bill, 2010<br />
The Bills are at various stages of debate in the August House.<br />
In the same Quarter, Parliament passed two Acts of Parliament;<br />
1. The Witness Protection(Amendment) Act published in June 2010<br />
2. The Supplementary Appropriation Act 2010<br />
THE WITNESS PROTECTION (AMENDMENT) ACT 2010<br />
The publication of the much awaited Witness Protection (Amendment) Act 2010 (hereinafter called the Amendment<br />
Act) heralds a new dawn for <strong>Kenya</strong> in the protection of citizenry with sensitive information that poses great risk to<br />
their lives and family. The Act came hot on heels of the International Criminal Court’s verdict authorizing the International<br />
Criminal Court’s Prosecutor Louis Moreno Ocampo to start investigations into the 2007 post election violence in<br />
<strong>Kenya</strong>. The Act was assented to on <strong>12</strong>th May 2010 and Commenced on the same day of assent. Witnesses to the 2007<br />
post election violence have been living in fear of their lives and it’s hoped the implementation of the Act will provide<br />
protection to them and their families.<br />
The Amendment Act seeks to amend the Witness Protection Act No. 16 of 2006 which was enacted to provide for the<br />
protection of witnesses in criminal and other proceedings. The Long title to the Act has now been amended to read:<br />
“An Act of Parliament to provide for the protection of witnesses in criminal cases and other proceedings to<br />
establish a Witness Protection Agency and provide for its powers, functions, management and administration,<br />
and for connected purposes”<br />
The Amending Act introduces three organs to handle matters related to witness protection. I will seek to analyze the<br />
organs as established.<br />
1. The Witness Protection Agency (WPA)<br />
Section 3A of the Amending Act establishes the WPA as a body corporate with perpetual succession, common seal,<br />
capable of suing and being sued. The objects and purpose of the agency is stipulated in section 3B and provides;<br />
3B. (1) The object and purpose of the Agency is to provide the framework and procedures for giving special protection,<br />
on behalf of the State, to persons in possession of important information and who are facing potential risk or intimidation<br />
due to their cooperation with prosecution and other law enforcement agencies<br />
The nature of special protection mentioned in 3B above empowers the Agency to acquire, store, maintain and control<br />
firearms and ammunition and electronic or other necessary equipment, despite the provisions of any other law.<br />
2. The Functions of the WPA are listed in S. 3C of the amending Act and include<br />
• establish and maintain a witness protection programme;<br />
• determine the criteria for admission to and removal from the witness protection programme;<br />
• determine the type of protection measures to be applied;<br />
• advise any Government Ministry, department, agency or any other person on the adoption of strategies<br />
and measures on witness protection; and<br />
• perform such other functions as may be necessary for the better carrying out of the purpose of this Act.<br />
82
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
LEGISLATIVE UPDATE<br />
The WPA shall have several powers as stipulated in section 3D of the Amending Act such as; administer funds of the<br />
Agency, open bank accounts, enter into confidential agreements with relevant foreign authorities relating to relocation<br />
of protected witnesses, summon a public officer or indeed other persons to appear before it to produce documents<br />
or information related to the Agency’s functions. The Agency shall be under the leadership of a Director appointed by<br />
the Board.<br />
Section 3G of the Amending Act provides for the independence of the Agency by stating that the Agency will operate<br />
without interference from any authority but will report to the Minister responsible for matters relating to protection<br />
of witnesses for accountability purposes. (Currently the Minister for Justice and Constitutional Affairs).<br />
A key feature of the new Amending Act is the Victims Compensation Fund under Section 3I. The Fund shall be used<br />
for restitution or compensation for the death to a victim, family of a victim of a crime committed by any person during<br />
a period when such person is provided protection under this Act.<br />
3. The Witness Protection Advisory Board<br />
This is unincorporated Board established under s. 3P of the amending Act. The Board is comprised of members such<br />
as Minister of Justice, Finance, Director of the National Intelligence Service, Commissioner of Police, Commissioner of<br />
Prisons, Director of Public Prosecutions. The function of the Board is to advise the Agency generally on the exercise of<br />
its powers and the performance of its functions under the Act and in particular formulate policies relating to witness<br />
protection, approve budget estimates and have general oversight of the Agency<br />
4. The Witness Protection Appeals Tribunal (WPAT)<br />
The WPAT is established by section 3U of the Amending Act and is composed by a Chairperson qualified to be a judge<br />
or has been a judge appointed by the President on the recommendation of the Attorney General and 2 other members<br />
appointed by the Minister with expertise on matters likely to come before the Tribunal.<br />
Pundits argue that the composition of the Board is political and may not augur well for the full protection of the<br />
witnesses. The Act does not stipulate how information relating to change of identity and relocation is going to be<br />
preserved or handled or kept confidentially.<br />
The Witness Protection Act (as amended) is available on our website www.kenyalaw.org.<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010<br />
83
KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
LEGAL NOTICES AND BILLS<br />
LEGAL NOTICES AND BILLS<br />
FROM MARCH 5,2010 TO MAY 21,2010<br />
Legislative Supplement Nos. 8, 9, 10, 11, <strong>12</strong>, 13, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29 and 30<br />
Bills 2010<br />
The Wildlife (Conservation and Management) (Amendment) Bill, 2010<br />
The Tea (Amendment) Bill, 2010<br />
The Counter-Trafficking in Persons Bill, 2010<br />
The Prevention of Organised Crime Bill, 2010<br />
The Supplementary Appropriation Bill, 2010<br />
Legal Notice Nos<br />
21- The land Control Act – Exemption<br />
22- The Preservation of Public Security Act Declaration.<br />
23- The Sugar (Imports, Exports and By-Products (Amendment) Regulations, 2010<br />
24- The Registered Land (Application) No. 2) Order, 2010.<br />
25- The Animal Diseases Act – Prohibition.<br />
26 - The <strong>Kenya</strong> Information and Communications (Dispute Resolution) Regulations, 2010.<br />
27 - The <strong>Kenya</strong> Information and Communications (Tarriff0 Regulations, 2010.<br />
28 - The <strong>Kenya</strong> Information and Communications (Compliance Monitoring, Inspections and Enforcement) Regulations,<br />
2010.<br />
29- The <strong>Kenya</strong> Information and Communications (Fair Competition and Equality of Treatment) Regulations, 2010.<br />
30 - The <strong>Kenya</strong> Information and Communications (Interconnection and Provision of Fixed Links, Access and Facilities)<br />
Regulations, 2010.<br />
31- The land Acquisition (Compensation Tribunal) Rules, 2010.<br />
32- The Registered Land (Application) (No. 3) Order, 2010.<br />
32- The Registered Land (Application) (No. 4) Order, 2010.<br />
33- The Immigration Act – Exemption.<br />
35- The Interim Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules, 2010.<br />
36- The Persons with Disabilities (Income Tax Deductions and Exemptions) Order, 2010.<br />
37- The National Museums and heritage Act confirmation of Sites and Monuments.<br />
38- The Certified Public Secretaries (Application of Practicing Certificates) Forms and Fees) (Amendments) (No. 2)<br />
Regulations, 2009.<br />
39- The certified Public Secretaries (Application for Registration) Forms and Fees) (Amendment) (No. 2) Regulations,<br />
2009.<br />
40- The Traffic Act – Exemption.<br />
46-67- The Income Tax Act – Exemptions.<br />
48 -The Arbitration (Amendment) Act-Commencement.<br />
49-51 - The National Hospital Insurance Fund Act – Declaration of Hospitals, etc<br />
52 - The Interim Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules, 2010.<br />
53 - The Local Authorities Transfer Fund (Amendment) Regulations, 2010.<br />
54- 58 The <strong>Kenya</strong> Information and Communications (Consumer Protection) Regulations, 2010, etc<br />
59 - The Export Processing Zones Act Declaration of an Export Processing Zone.<br />
60 - The Immigration Act – Exemption.<br />
61-The Non-Governmental Organizations Co-ordination (Amendment) Regulations, 2010.<br />
62-The Immigration Act – Exemption.<br />
63-The Traffic Act – Exemption.<br />
64- The Public Officer Ethics (Amendment) Regulations,2010.<br />
65 – The Hides, Skin and Leather Trade (Leather Development Council) Rules, 2010.<br />
66- The Constitution of <strong>Kenya</strong> Review (Referendum) Regulations, 2010.<br />
67- The National Assembly and Presidential Elections Act- Extension of Period for the <strong>Issue</strong> of Writs-Juja<br />
Constituency.<br />
The National Assembly and Presidential Elections Act – Extension of Period for the <strong>Issue</strong> of Writs – Matuga<br />
Constituency.<br />
84<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010
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