Bench Bulletin - Issue 12 - Kenya Law Reports

More documents

Recommendations

Info

KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT Criminal Practice and Procedure-affidavit-amendment-whether an affidavit may be amended- claim that the affidavit sworn by the Investigating Officer explaining the delay was referring to a different case-whether there was need for the respondent to seek to either amend the affidavit or alternatively, to seek leave to file a supplementary affidavit -where the only lawful option would be to file a supplementary affidavit-whether the affidavit was defective The applicant, who had been charged with murder, made a constitutional application to the court with a claim that his constitutional rights under sections 70 (a) and 72 (3) (b) and 77 (1) of the Constitution had been violated. In particular, the accused asserted that his detention beyond the period of 14 days from the date of his arrest, constituted a violation of his constitutional rights. The applicant had been held in police custody for six months before being arraigned in court. The Investigating Officer swore an affidavit in which he deponed that the delay in bringing the accused to court was attributable to a delay in conducting the post-mortem examination of the victim’s body as the family of the deceased could not be traced in good time to identify the body. The Investigating Officer also disclosed that the City Mortuary could not release to the police the results of the post mortem examination early enough, because of the unpaid mortuary charges. The accused submitted that the affidavit did not correlate to the case, because in his view, it was sworn to explain issues which arose in Criminal Case No. 87 of 2007, (whereas the case at hand was Criminal Case No. 86 of 2007). He further argued that the inability of the victim’s family to raise the fee payable for the post- mortem examination was not a justifiable explanation. The accused re-emphasized that where the constitutional rights of an accused person have been violated, he was entitled to an acquittal. The respondent on the other hand submitted 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. It was contended that the rights of the accused must be weighed as against the rights of the victim of the offence. Held: 1. A perusal of the court file revealed that the affidavit of the Investigating Officer was sworn on the file before the court. There was therefore no need for the respondent to seek to either amend the affidavit or alternatively, to seek leave to file a supplementary affidavit. 2. An affidavit could not be amended as it is made up of evidence, which the deponent of such affidavit tenders on oath. If after the affidavit is sworn and tendered to court or to any other body the deponent realizes that there are errors in it, the only lawful option available to him for setting out the correct factual position is through a supplementary affidavit. 3. Pursuant to section 72 (3) of the Constitution, the police were obliged to explain to the court their reason for taking the accused to court so long after the expiry of the 14 days which the law allowed them. The onus was on the police to demonstrate that they took the applicant to court as soon as was reasonably practicable 4. The body of the victim could not be identified until the members of the deceased’s family were traced and without the post mortem results, the cause of death could not be established. As long as the cause of death was not ascertained by the pathologist or by any other duly qualified medical practitioner, it would have been premature to prefer charges of murder. 5. The scope of the reasons or explanations for not bringing an accused person to court within the prescribed time which may be acceptable to the court could not be exclusively delineated. So long as the explanation proffered was reasonable and acceptable, no problem would arise. Each case had to be considered on the basis of its peculiar facts and circumstances. In deciding whether there had been a breach of section 72 (3) of the Constitution, the Court had to act on evidence. 6. Section 71 of the Constitution protected the right to life. However even though the deceased had been killed, the court could not use section 71 of the Constitution as a counter-weight to section 72(3) as an accused person is deemed to be innocent until and unless his guilt is proved. Nonetheless, the court had an obligation to give effect to section 70 of the Constitution which provided that the rights and freedoms were subject to the rights of others and for public interest. Although the accused was entitled to his fundamental rights and freedoms, the enjoyment of the same was subject to the respect for the rights and freedoms of others and to public interest. 7. Public interest required the court to carry out its mandate of dispensing justice without fear or favour. Whilst an accused person is presumed innocent until and unless he is proved guilty, public interest required the court to determine whether or not the accused was guilty. That could only be done if the prosecution was given the opportunity to lead evidence, during a trial. But then again, the courts had to also safeguard the fundamental rights of an accused person. It was for that reason that the court remained ever vigilant in the course of carrying out its mandate 62
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT 8. The failure to bring the appellant to court within the prescribed time only entitled the appellant to compensation for breach of his rights as was provided for under section 72 (6) of the Constitution. That section was an integral part of the Constitution which expressly provided for a remedy in situations where section 72 (3) was said to have been violated. 9. It was in the public interest to have the trial proceed to its logical conclusion. Application dismissed. Election petition: Threshold of irregularities warranting nullification of election William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR April 16, 2010 L. Kimaru J. High Court at Nairobi (Milimani Commercial Courts) Reported by Njeri Githang’a Election law-election petition- parliamentary election- election petition seeking to nullify and declare void the election of the first respondent as Member of Parliament for Juja Constituency -irregularities in elections – petitioner citing several irregularities in the conduct of elections - whether the irregularities were sufficient to warrant nullification of the election- National Assembly and the Presidential Elections Act (Cap 7) Election law-election petitions-jurisdiction-High court’s jurisdiction in determination of election petitions-factors to be considered by the court- the Constitution, the National Assembly and the Presidential Elections Act, the Election Rules and Regulations -general principles recognized by the law as constituting the proper conduct of a valid election- nature of election petitions- an election a signification of the exercise of the democratic rights of the people to have a person of their choice represent them in the National Assembly- whether the court had jurisdiction to hear the matter-Constitution of Kenya Section 44- National Assembly and the Presidential Elections Act(Cap 7) Section 19 The Hon. Justice L. Kimaru Election law -elections-fair and free elections -right of a people to freely elect their representative in a credible electoral process - test as to what constitutes free and fair elections - internationally acceptable standard -whether the complaints made by the petitioner were such that, apart from establishing the particular electoral malpractice or irregularity, they impacted on the rights of the voters of the constituency to have a person of their choice represent them in the National Assembly - whether the election as conducted could be said to have been free and fair-Article 25 of the International Convention on Civil and Political Rights (1966)- Article 21 of the Universal Declaration of Human Rights Election law-election petition-standard of proof in election petitions- burden of proof on the petitioner-standard of proof slightly higher than the one adopted in civil cases but not as high as in criminal cases- standard of proof ordinarily applied by the court in civil cases where an allegation of fraud has been made -need for the court to be satisfied that the allegation of fraud had been properly established-whether the required standard of proof had been established Election law-electoral offences and election malpractices –election posters- printing of election posters that do not disclose 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 election poster the name and the address of the printer or publisher could result in the nullification of an election –code of conduct-conduct of the Returning Officer-Returning Officer alleged to have aided the first respondent gain unfair electoral advantage against the petitioner- bribery-the culprit a civic candidate in the said elections -whether the petitioner had proved those allegations to the required standard of proof-Election Offences Act section 11 (1) and 11(1) (b) Election law- electoral officials- Electoral Commission of Kenya (ECK) officials presiding over the nomination of both the parliamentary and civic candidates of a political party-whether by virtue of ECK participation in the parliamentary nomination, an impression was created that it was partial to that political party during the general elections- the Presidential and Parliamentary Election Regulations Election law- electoral documents-election result- manner in which results are to be recorded- Form 16A and Form 17A- Form 16As lacking the signatures of the presiding officers- persons other than presiding officers filling Forms 16A- need for all the presiding officers to sign and stamp the Form 16As for the same to be considered valid- statutory comments in the Forms 16A- failure by the presiding officers to give reasons for the failure or refusal by the candidates or their agents to sign the Form 16A- completion of Form 17A- whether the third respondent accepted invalid results which he tallied and included in the final results as contained in Form 17A- Presidential and Parliamentary Elections Regulations (Cap 7 Sub Leg) Regulation 35A(1) (b), 35A(5)(b) 35A(7) and (8) 40(1) Election law-ballot boxes-scrutiny of ballot boxes- integrity of nearly a third of ballot boxes in question- some ballot boxes tampered with in the period between the time the defunct Electoral Commission of Kenya (ECK) was disbanded and the constitution of the second respondent-whether the ballot boxes could be scrutinized and ballot papers recounted Issue 12: April-June 2010 63
Page 1 and 2:
The Bench Bulletin A publication of
Page 3 and 4:
KENYA LAW REPORTS BENCH BULLETIN Th
Page 5 and 6:
KENYA LAW REPORTS BENCH BULLETIN CA
Page 7 and 8:
KENYA LAW REPORTS BENCH BULLETIN DI
Page 9 and 10:
Page 11 and 12:
Page 13 and 14: KENYA LAW REPORTS BENCH BULLETIN DI
Page 15 and 16: KENYA LAW REPORTS BENCH BULLETIN DI
Page 17 and 18: KENYA LAW REPORTS BENCH BULLETIN AG
Page 19 and 20: KENYA LAW REPORTS BENCH BULLETIN DE
Page 31 and 32: KENYA LAW REPORTS BENCH BULLETIN FE
Page 37 and 38: KENYA LAW REPORTS BENCH BULLETIN FR
Page 63: KENYA LAW REPORTS BENCH BULLETIN FR
Page 81 and 82: KENYA LAW REPORTS BENCH BULLETIN IS
Page 83 and 84: KENYA LAW REPORTS BENCH BULLETIN IS
Page 85 and 86: KENYA LAW REPORTS BENCH BULLETIN LE
Page 87 and 88: THE NATIONAL COUNCIL FOR LAW REPORT
show all

Bench Bulletin - Issue 12 - Kenya Law Reports

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?