Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT 15. Form 16As had to confirm to Regulation 35A at each polling station as they were to be scrutinized and relied upon by the Returning Officer to fill in Form 17A. Regulation 35 of the Election Regulation provided for the procedure to be followed by the Presiding Officer at the polling station culminating in the sealing of ballot boxes. These were very serious and onerous obligations stipulated by the electoral laws and could not be lightly shrugged off under the guise of human errors. 16. There were arithmetical errors in the results of all the candidates in Form 17A. The results of two polling stations were not included and figures in respect of final tally of the results of the petitioner and the first respondent were altered without authenticating the same or by counter-signing. The figures of votes (cast, rejected and valid ones) were also not entered in respect of some polling stations, signature of candidates or agents were not shown. The Form 17A presented by the first Respondent was neither signed nor dated. 17. The certificate of results issued by the second respondent declaring the first respondent as a winner was issued before the tallying process and form 17A were completed. 18. All the undisputable facts lead to the conclusion that the second respondent did not perform her duties fairly and impartially. When a candidate was removed from the tallying centre at a very critical stage of the election process she failed to put it on record. She did not undertake her duties fairly and impartially. 19. The process of the election, starting from the ferrying of ballot boxes to the whole process of receiving and tallying the ballot boxes in the tallying centre and declaration of the first respondent as a successful candidate did not demonstrate that there was a fair and free election. 20. There was enough evidence to find that there were serious anomalies in the process of election results, which were fundamental and in the nature which would affect the results of the election. There was also evidence of non-compliance with important and mandatory provisions of the electoral law from the electoral officials and the court in all fairness had no option but to come to the conclusion that the parliamentary election was not fair, free and transparent. Petition allowed. Advocates : Mr. Omollo for the Petitioner Mr. Kilukumi for the 1st respondent Mr. lubullellah for the 2nd & 3rd respondent Criminal Practice: Defence of Retraction by Admission Josephat Njue Solomon v Republic Criminal Appeal 187 of 2008 High Court at Embu W. Karanja. J April 22,2010 Reported by Andrew Halonyere Criminal practice and procedure – charge – framing of a charge for the offence of defilement –appeal against conviction and sentence of life imprisonment on a charge of defilement – grounds; that the magistrates trial court omitted to record the language used during trial, words in the particulars of the charge i.e “unlawful carnal knowledge” were not envisaged in the Sexual Offences Act – court’s record showing that the appellant understood and participated in the proceedings - law on use of language in the course of criminal proceedings – whether the phrase “causing penetration with a child” and “unlawful carnal knowledge” described the same act. Criminal law – defilement – defilement of a girl under the age of 18 years – appellant raising defence of retraction by admission, by stating that “the girl was agreeable to what I did to her”- circumstances under which a retraction would arise – whether a minor can have consensual sex – whether the evidence adduced was sufficient to sustain a conviction. Evidence – documentary evidence – P 3 form – court’s discretion to call the maker of a document to adduce evidence - Sexual Offences Act (2006) section 8 (1),(2) - Penal Code (Cap 63) – Evidence Act (Cap80) section 77. The appellant was charged before the Runyenjes Senior Resident Magistrate’s Court with the offence of defilement of a girl contrary to section 8 (1) as read with sub-section 2 of the Sexual Offences Act (2006). He was convicted and sentenced to life imprisonment on his own plea of guilty. Being aggrieved with the conviction and sentence he filed an appeal against it in the High Court. The appellant submitted that the words used in the particulars of the charge i.e “unlawful carnal knowledge”, were not envisaged in the Sexual Offences Act, arguing that they were words in the repealed sections of the Penal Code (Cap 63) and therefore rendered the charge defective. It was also submitted that the plea was unequivocal because the appellant admitted to the facts but added the statement, “The girl was agreeable to what I did to her.” However, counsel for the state called this an attempt at justification and not a retraction of the admission. The appellant further submitted that 60
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT the magistrate’s court erred by admitting the P3 form without calling the maker and without giving the appellant a chance to object or admit to it. Finally it was the appellant’s submission that the language used during the trial and whether or not it was understood by the appellant was not on record. Counsel for the state in objecting to the appeal, submitted that there was no defect in the charge and that the use of the words “unlawful carnal knowledge” did not make it defective. Held: 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 mother tongue, nor the language of his choice. All it needed to be was a language clearly understood by the accused. 2. “Causing penetration with a child” and “carnal knowledge” described the same act. It was just a question of semantics. Penetration was actually a detail of the act but both terms simply meant having sexual intercourse. The fact that “carnal knowledge” appeared in the Penal Code (Cap 63) and not in the Sexual Offences Act of 2006, did not outlaw its use in the particulars of the offence. Therefore the use of the said words was not prejudicial to the appellant at all. 3. A retraction would only have arisen if an accused person raised a defence admitting the facts e.g if an accused’s 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 negated a plea in that case. However, in a case of defilement it mattered not whether the child gave its consent or whether she was agreeable to the sexual intercourse. This was a statutory offence and the issue of consent or agreeability would not arise. Saying that the girl was agreeable did not therefore negate the plea. It did not make it equivocal. 4. Section 77 of the Evidence Act (Cap 80) provided, that in criminal proceedings any document that purported to be a report under the hand of a Government analyst, medical practitioner or any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis could be used in evidence. The court could presume that the signature to any such document was genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it. When any report was so used the court could, if it thought fit, summon the maker and examine him as to the subject matter thereof. Therefore the P3 form was admissible and since it was not a hearing where viva voce evidence was being adduced, there could not have been any cross-examination or need to call the maker of the document. Appeal dismissed The Hon. Justice Fred A. Ochieng Rights of an Accused Person to be Brought to Court within 14 Days of Arrest Republic v Desmond Mukhaya Mulusa [2010] eKLR Criminal Case 86 of 2007 April 20, 2010 Judge: Fred A. Ochieng J. High Court at Nairobi Reported by Njeri Githang’a Constitutional Law- fundamental rights and freedoms- rights of an accused person- right to be brought to court within 14 days after arrest- applicant 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 post-mortem 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 Constitutional law-fundamental rights and freedoms-rights of an accused person- accused person presumed innocent until proven guilty-prosecution 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). Constitutional law-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). Issue 12: April-June 2010 61
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