Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN DIGEST OF CASES FEATURED Constructive provocation – appellant having argued with one of the witnesses prior to the incident – lack of evidence as to whether the deceased had been involved in the argument – whether this could be construed as constructive provocation – whether such provocation could be availed to the appellant Josiah Afuna Angulu v Republic ...................................................................................................................................................... 44 Evidence - evaluation of evidence-duty of the first appellate court to evaluate the trial court’s evidence. Dennis Muthee Chokera v Republic ................................................................................................................................................ 35 Exhibits- procedure for production of exhibits- need for an exhibit to be identified before being produced as evidencewhere an exhibit was irregularly produced-where the irregular production of the exhibit did not affect any ingredient of the offence- where the court could still have enter conviction without the weapon being produced as exhibit - whether the appeal could be allowed on that ground in circumstances Chris Kasamba Karani v Republic ................................................................................................................................................... 46 Second appeal - appeal against conviction and sentence - appellant convicted of robbery with violence-appeal restricted to matters of law- circumstances under which an appellate court would interfere with the decision of the superior court- Criminal Procedure Code (Cap 75) section 361 Chris Kasamba Karani v Republic ................................................................................................................................................... 46 Trial process - judgment and sentencing-trial court required to receive mitigating circumstances after finding the appellant guilty before proceeding to pronounce sentence- mitigating circumstances on record would be of importance when assessing an appropriate sentence on appeal Chris Kasamba Karani v Republic ................................................................................................................................................... 46 ELECTION LAW Conduct of elections – non-compliance with the law – the scope of section 28 of the National Assembly and Presidential Elections Act - section 28 of the National Assembly and Presidential Elections Act providing that irregularities in the conduct of an election will not vitiate the result unless the irregularities were so serious that the election was not in accordance with principles laid in the law or the irregularities affected the result- appellant asking the court to invoke section 28 on grounds that the acts alleged against the electoral body that conducted the elections did not affect the overall results of the elections – whether the anomalies found in Forms 16A and17A were so pervasive as to affect the entire election - whether these anomalies could be cured by section 28 of the National Assembly and Presidential Elections Act – whether election was conducted in accordance with principles laid down by the electoral law James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49 Election petition – appeal against High Court judgment – the High Court having nullified the election of the appellant as the Member of Parliament for the South Mugirango constituency on grounds that the election was not transparent, free and fair – the appellant having garnered the highest number of votes during the scrutiny and recount of votes – failure by the court to find the appellant guilty of an electoral offence - scrutiny and recount of the votes disclosed numerous irregularities among them unsigned unauthenticated Forms 16A, variation between Forms 16A and 17A, missing ballot boxes, broken ballot seals - the significance of Forms 16A – the effect of the failure by the presiding officer to sign or stamp Forms 16A without reasonable cause - Regulations 35A (5), 39, 40 (1) of the Presidential and Parliamentary Regulations James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49 Interpretation of statute - interpretation of electoral laws and regulations – the interpretation of electoral laws is aimed at conducting free and fair elections – circumstances when an election can be declared void - test to be applied by the court in determining validity of an election - meaning of free and fair elections – meaning of transparent elections – duty of the electoral body to promote free and fair election - Section 17A of the National Assembly and Presidential Elections Act - section 42A (c) of the Constitution James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49 Service – mode of service of an election petition – appeal – appeal against ruling by the High Court dismissing election petition on the ground that the petitioner had invoked the alternative mode of service under Section 20(1) (a) (iv) of the National Assembly and Presidential Elections Act without exercising first due diligence to serve the respondent personally – alternative mode of service having been effected within six days of filing the election petition - affidavit of service – High Court struck out the affidavit of service for having not been filed on time - whether an affidavit of service in an election must be filed in a prescribed manner – affidavit of service was filed after leave was granted by the court to file further affidavits to examine whether the 1st respondent had been served in accordance with the Act - whether the affidavit of service was erroneously struck out - Section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others ....................................................................................... 48 6 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN DIGEST OF CASES FEATURED Service – mode service of an election petition - affidavit of service - whether the appellant’s affidavit of service dismissed by the High Court would have discharged the onus of showing on a balance of probability that the appellant exercised due diligence in serving the election petition – whether onus is on the petitioner to demonstrate that he exercised due diligence before invoking service through alternative mode of service – 1st respondent argued that the petitioner had ample time exercise due diligence before resorting to alternative means – whether the petitioner discharged the onus of showing diligence in serving the petition – due diligence – meaning of due diligence Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others ....................................................................................... 48 Service - service of an election petition – appeal against dismissal of an election petition by the High Court on the ground that service had not been conducted within the requisite period after publication of results – production of conflicting evidence before the High Court through conflicting affidavits regarding the service of the election petition - appellant’s process server swearing in an affidavit that the election petition had been served within the given period of time –1st respondent also swearing in an affidavit that the service of election of election petition as alleged by the process server did not take place – parties whether failure by the 1st respondent to cross examine the process server amounted to admission to having been served the election petition - whether the appeal could be allowed on that ground- section 20 (1) (a)National Assembly and Presidential Elections Act. Dickson Daniel Karaba v John Ngata Kariuki & 2 others ............................................................................................................. 56 EMPLOYMENT – termination of – appeal against a decision finding the termination of appellant’s employment lawful and on disciplinary grounds – claims over rebate tickets – respondent having argued that the rebate tickets were concessionary and only a privilege to staff – claims that they could be changed or withdrawn or augmented by the respondent as deemed fit – circumstances under which the appellate court would find differently from a superior court – whether the appellant had an litigable entitlement to the tickets Jimi Masege v Kenya Airways Limited ............................................................................................................................................ 41 EVIDENCE Corroboration - where corroborative evidence showed that the complainant was defiled despite the fact that the alleged perpetrator was not clinically examined-whether a conviction can solely be based on the corroborative evidence despite lack of clinical tests on the alleged perpetrator. Dennis Muthee Chokera v Republic ................................................................................................................................................. 38 Identification evidence - principles that the court had to take into when dealing with evidence of identification where the accused claimed it was mistaken identity- appellant caught red handed-whether there was proper identification. Chris Kasamba Karani v Republic ................................................................................................................................................... 46 Identification - accused seen and identified by witnesses in broad daylight-conviction based on such identification-whether such conviction is safe. Jackson Kyalo Munge v Republic ..................................................................................................................................................... 42 LAND LAW - statutory notice - service of notice-statutory power of sale-provisions of the Registered Lands Act with regard to statutory power of sale-whether the statutory notices were valid-where first respondent’s statutory power of sale had accrued-Registered Land Act (cap 300) sections 65 (2), 74 (1) (a), 77 (4) Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42 PROBATE AND ADMINISTRATION - letters of administration - appeal - interpretation of statute – interpretation of section 3(5) of the Law of Succession Act - appeal from High Court judgment granting the respondent letters of administration – appellant arguing that a customary law marriage could not presumed where all the customary requirements had not been fulfilled – whether a marriage between the respondent and the deceased could be presumed under section 3(5) of the Law of Succession Act Marriage – presumption of marriage - rationale and genesis of the concept of presumption of marriage - circumstances in which a presumption of marriage is deemed to arise – respondent having cohabited with the deceased for over fifteen years and had three children – evidence supporting that the deceased supported the respondent financially – lack of evidence that dowry was paid under the Kikuyu customs of marriage – whether a marriage could be presumed under such circumstances Mary Wanjiru Githatu v Esther Wanjiru Kiarie Civil Appeal 20 of 2009 ................................................................................... 50 Issue 12: April-June 2010 7
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THE NATIONAL COUNCIL FOR LAW REPORT
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Bench Bulletin - Issue 12 - Kenya Law Reports

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