Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN DIGEST OF CASES FEATURED SENTENCE Sexual offence - indecent assault on a minor-sentence of 10 years imprisonment-legality of sentence -section M.B.O v Republic ................................................................................................................................................................................ 52 Trafficking in narcotic drugs - appellant convicted and sentenced to imprisonment for 15 years for the offence of trafficking in narcotic drugs by the Chief Magistrate’s court – superior court subsequently setting aside the trial court’s sentence and sentencing the appellant to pay a fine of Kshs. 28 million or in default a twelve year jail term and a prison term of three and half years - whether the sentences imposed by the courts below were in consonance with section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act - when an appellate court can interfere with the sentence imposed by a lower court Kingsley Chukwu v Republic ............................................................................................................................................................ 55 SUCCESSION LAW Intestacy - distribution of the estate of the deceased-customary law application-whether it was just to deprive a child of the deceased person of her father’s estate merely because she was a married daughter and vest the estate in a brother of the deceased-whether it was the intention of Parliament to exclude the application of intestacy provisions of the Succession Act (cap 160) to all agricultural land-Law of Succession Act (cap 160) sections 32, 33, 38; Judicature Act (cap 8) section 3 (2); Constitution section 82 (1) (4) Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR ................................................................................. 36 Probate and administration - grant of letters of administration - appeal against judgment of the superior court granting letters of administration to the respondents who were brothers of the deceased on grounds of customary law applicationwhere the respondents claimed that the deceased was holding the estate in trust for them-whether the superior court was right in applying customary law in disinheriting the appellants by virtue of being married daughters-whether the appeal had merit-Law of Succession Act (cap 160) sections 32, 33, 71; Registered Lands Act (cap 300) sections 28, 29; Judicature Act (cap 8) section 3 (2) Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR Civil Appeal No. 306 of 2004 ................................ 36 TORT Libel – appeal against an award for damages paid to the appellant by the superior court – appellant having claimed that the respondent circulated a defamatory memo about him – respondent failing to refute the appellant’s claims – guidelines when testing matters of libel – principles guiding awards to damages – whether KQ was liable for defamation – whether the appellant was entitled to damages. Jimi Masege v Kenya Airways Limited ............................................................................................................................................ 41 Negligence – damages for injuries suffered due to consumption of contaminated beer – appeal against liability and damages awarded in the consumer – whether the two lower courts were wrong in holding beer manufacturer liable – the rule in Donoghue v Stevenson – whether the principles enunciated in the rule were proved – whether duty of care by the appellant to the respondent had been established – whether negligence by the appellant if any resulted in injury to the respondent Kenya Breweries Ltd v Godfrey Odoyo ........................................................................................................................................... 43 Negligence – liability – where the bottle that was analyzed was not the one consumed by the respondent – appellant alleging that there was no nexus between the contents of the bottle that was examined and the injury suffered by the respondent – whether report by Kenya Bureau of Standards was improperly obtained – effect of - Kenya Breweries Ltd v Godfrey Odoyo ........................................................................................................................................... 43 8 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN DIGEST OF CASES FEATURED HIGH COURT CIVIL PRACTICE AND PROCEDURE – stay of proceedings – application for an order of stay of proceedings – application filed by former directors of the first defendant under statutory management – failure by the former directors of the first defendant to disclose to the Court of Appeal the status of the first defendant- where the High Court had issued a restraining order against the defendants from interfering with the suit property - whether the Court of Appeal in granting an order of stay of proceedings in the High Court meant staying the restraining order issued by the High Court – whether the former directors of the first defendant had the legal capacity to appear before the Court of Appeal- whether the High Court’s restraining order superceded any other order issued by the High Court-Insurance Act (Cap 487) section 67(2) (1) - Court of Appeal Rules Rule 5(2)(b). Piedmont Investment Limited v Standard Assurance Limited & 2 others ................................................................................... 69 CONSTITUTIONAL LAW Fundamental rights – rights of an accused person – right to be brought to court within a reasonable time after arrest –arrested person brought to court after 16 days - failure by the prosecution to offer an explanation–alleged breach of the right to protection against torture or to inhuman treatment-whether there was a violation of the petitioners constitutional rights – Constitution of Kenya section 72(3), (b) 74(1) Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67 Fundamental rights and freedoms - breach of - award of damages - special damages neither pleaded nor provenexemplary damages-whether it was appropriate to award exemplary or aggravated damages- whether general damages could be awarded Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67 Fundamental rights and freedoms - limitation period-time within which to seek redress for breach of the rights- need to bring proceedings as early as possible- where there was no limitation under the Constitution Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67 Fundamental rights and freedoms - remedy for breach of- right of the applicant to sue for compensation under section 72(6) of the Constitution- the provision an integral part of the Constitution-duty of the court to invoke that section where section 72(3) has been breached-whether failure to bring the applicant to court within the prescribed time only entitled him to compensation for breach of his rights- Constitution section 72 (6). Republic v Desmond Mukhaya Mulusa [2010] eKLR .................................................................................................................... 61 Fundamental rights and freedoms - right to liberty - protection against arbitrary search-fair trial - freedom of assembly and association - protection from discrimination –whether there was enough evidence to prove that the said rights had been violated-Section 72(1), 76(1), 77 (a),80(1) and 82(3) Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67 Fundamental rights and freedoms - rights of an accused person- accused person presumed innocent until proven guiltyprosecution submitting that if there was any breach of the constitutional rights of the accused the court had to apply the provisions of the Constitution in a wholesome manner- rights of the accused to be weighed as against the rights of the victim- whether the court could use section 71 of the Constitution as a counter-weight to the provisions of section 72(3)- obligation of the court to give effect to the section 70 of the Constitution- restrictions and limitations of constitutional rights –rights subject to respect for the rights and freedoms of others and for public interest – where public interest required the court to determine whether or not the accused was guilty-whether the violation of constitutional rights of an accused resulted to an automatic acquittal- Constitution sections 70, 71 and 72 (3). Republic v Desmond Mukhaya Mulusa [2010] eKLR .................................................................................................................... 61 Fundamental rights and freedoms - rights of an accused person- right to be brought to court within 14 days after arrestapplicant accused of murder-detention of applicant in police custody for 6 months - onus on the police to demonstrate that the accused had been taken to court as soon as was reasonably practicable- delay caused by delay in conducting the postmortem examination of the victim’s body as the family could not be traced to identify the body- victim’s family inability to raise the mortuary fees and the post-mortem fees causing further delay in having the post mortem report released-whether the prosecution had explained the delay satisfactorily-Constitution sections 70 (a), 72 (3) (b) and 77 Republic v Desmond Mukhaya Mulusa [2010] eKLR Criminal .................................................................................................... 61 Issue 12: April-June 2010 9
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