Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT In objecting to the claim, the State submitted that the matters complained of could be adequately adjudicated upon by the Truth, Justice, and Reconciliation Commission. In enacting the Truth Justice and Reconciliation Commission Act, Parliament was concerned that some of the transgressions against the country and its people could not be properly addressed by the judicial institutions due to procedural and other hindrances and that this constituted such a case. The State asserted that there had been an inordinate delay in filing the claim. It was argued that the complaints being tort in nature should have been brought within twelve months from the date on which the cause of action accrued as provided for under section 3 of the Public Authorities Limitation Act. It was argued that the petitioner having been arraigned in court, he ought to have raised the issues regarding the violation of his rights at that stage. He had been tried by a court of competent jurisdiction and his appeal dismissed and hence the High Court was functus officio. It was further submitted that since the petitioner had been convicted on his own plea of guilty, he had acquiesced to the magistrate’s decision by appealing against the decision instead of challenging the constitutionality of the proceedings. Held: 1. Neither section 84 of the Constitution, nor the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, provided for any limitation period for bringing actions to enforce fundamental rights. 2. Section 3 of the Constitution provided that the Constitution had the force of law throughout Kenya, and if any other law was inconsistent with the Constitution, the Constitution had to prevail. The provisions of the Public Authorities Limitations Act (Cap 36) limiting the period for initiating actions against public authorities was inconsistent with the Constitution, to the extent that it limited a party’s rights to seek redress for contravention of his fundamental rights. The Public Authorities Limitations Act could not override the Constitution and it could not therefore be used to curtail rights provided under the Constitution. The petitioner’s claim arising from violation of his constitutional rights was hence not statute barred. 3. A person, who came to court under Section 84 of the Constitution alleging contravention of his fundamental rights, was required to be candid with regard to the alleged contraventions, the sections contravened, as well as facts supporting the contravention. However, the issue of sufficiency of facts set out in the summons and supporting affidavits, was a preliminary issue which ought to have been raised before the hearing of the originating summons, and directions of the court sought. It was hence late for the defendant to complain about the sufficiency of facts at the hearing stage. Besides, the facts deponed to by the petitioner, provided a sufficient base for the petitioner’s claim regarding the infringement of his rights under the Constitution. 4. Although the issue of the contravention of the petitioner’s constitutional rights could have been raised before the trial magistrate, and referred to the High Court for determination, it was not mandatory. The petitioner had the alternative of filing an application directly to the High Court (as he eventually did), under rule 9 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001 5. Although there was no time limitation for claims regarding violation of fundamental rights and freedoms of the individual, there was need to bring proceedings to court as early as possible. However, the petitioner had reasonably explained that he had been confined in prison and upon his release, he could not immediately lodge his claim until after the year 2002, when elections were held and there was change in the Government. 6. The petitioner had come to court seeking redress for specific violations of his fundamental rights under the supreme law of the land. Nothing had been laid before the court to show that there was any hindrance, procedural or otherwise, to the court addressing the violations complained of. The court not only had powers to deal with the issue of violation of constitutional rights, but it also had a responsibility to uphold the Constitution of Kenya. There was therefore no reason why the court could abdicate that responsibility to the Truth, Justice and Reconciliation Commission which was an inferior Tribunal. 7. Violation of the petitioner’s right to personal liberty under Section 72(1) and (3)(a) & (b) of the Constitution was clearly confirmed by the charge sheet and the proceedings in the Chief Magistrate’s Court. No explanation had been offered to the High Court and there was no justification for the police to hold the petitioner for a period of 16 days. 8. The presence of the Nyayo House Torture Chamber was not in dispute. The fact that the defendant had not attempted to deny these allegations under oath was an indication that the allegations were true. The acts that the petitioner was subjected to were all cruel and degrading treatment and therefore a violation of Section 74(1) of the Constitution which provided against torture or inhuman or degrading punishment or to any other treatment. 9. The alleged house search was not unlawful search as under Section 76 of the Constitution. The search of the petitioner’s house was related to the criminal charge with which the petitioner was subsequently arraigned in court. The petitioner’s right to protection against arbitrary search or entry as provided under Section 76(1) of the Constitution was not absolute but was subject to subsection (2) which allowed such search in the interest of defence, public safety and public order or maintenance of public security. 10. The petitioner had relinquished his constitutional rights under Section 77 of the Constitution with regard to fair trial by submitting to a plea of guilty. He further acquiesced in the Chief magistrate’s decision by appealing from that decision instead of challenging the constitutionality of the proceedings. 68
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT 11. Confinement in prison was in accordance with Section 72(1) (a) of the Constitution and therefore lawful. 12. There was no evidence in support of the allegations that the petitioner’s rights to protection of freedom of assembly and association under Section 80(1) and protection from discrimination under Section 82(3) of the Constitution were violated. 13. The petitioner’s constitutional rights to personal liberty under Section 72 of the Constitution were violated and the petitioner’s rights to protection against torture, degrading and inhuman treatment under Section 74 of the Constitution were also violated and hence an award of damages was appropriate. 14. The petitioner had not specifically pleaded or proved any special damages and in light of the acknowledged change in the government, and the attempts at dealing with human rights violation, it was inappropriate to award exemplary or aggravated damages. Petitioner awarded the sum of Kshs.2.5 million as general damages Application for an Order of Stay of Proceedings Piedmont Investment Limited v Standard Assurance Limited & 2 Others Civil case no 806 of 2003 High Court at Nairobi Kimaru. J March 25,2010 Reported by Andrew Halonyere 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). Land law – transfer of land –dispute as to title to land - claim that the second defendant had secured from the first defendant land through fraudulent means in violation of a court order - where the second defendant further transferred the suit land to a third party – whether the first and second defendants had legal capacity to transfer the land – inherent power of the High Court to rectify an act done in contempt of it’s orders - whether the third party was an innocent purchaser for value without notice. The High Court in a suit filed by the plaintiff regarding the suit land, issued an order restraining the former directors of the First Defendant from dealing with the suit property pending the hearing and determination of the suit. The former directors of the First Defendant were aggrieved by the court’s decision and filed an appeal to the Court of Appeal. Contemporaneous with filing the appeal, the First Defendant filed an application under Rule 5(2) (b) of the Court of Appeal Rules, seeking an order to stay proceedings in the High Court pending the hearing and determination of an intended appeal. The Court of Appeal, while making a ruling in respect of the application granted an interim stay to last until the determination of the application. The plaintiff on its part, by an application to the High Court supported by the statutory manager of the First Defendant, sought orders to revert the suit land to the First Defendant. The plaintiff submitted that the former directors of the First Defendant, in full knowledge that they had no authority or legal capacity to deal with the property of the First Defendant, went ahead and had secured the transfer of the suit property to the Second Defendant, a company to which they had an association with, arguing that the transfer was secured by the former directors by lodging with the land registry a previous order of the High Court which had been superceded by a subsequent order of the High Court. The Second and Third Defendants opposed the application by submitting that the High Court lacked jurisdiction to proceed with the application since the Court of Appeal had stayed further proceedings in the suit. The Third Defendant further submitted that he was an innocent purchaser for value without notice. Held: 1. In granting an order staying proceedings before the High Court, the Court of Appeal did not stay the order of the High Court which restrained the First Defendant from transferring the suit property to any third party pending the hearing and determination of the suit. The Court of Appeal stayed proceedings in the High Court pending further orders from the High Court. 2. The former directors of the First Defendant failed to inform the Court of Appeal that the management status of the First Defendant had changed, therefore the former directors of the First Defendant had no legal capacity to appear before the Court of Appeal when they knew very well that the First Defendant had been placed under statutory management. Issue 12: April-June 2010 69
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