Bench Bulletin Issue 13

The Bench Bulletin
A publication of The National Council for Law Reporting

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The Bench Bulletin is the deinitive intelligence briefing for Kenyas judicial oficers, the law practitioner, managers and the business people. It is a quarterly digest of recent developments in law, particularly, case law, new legislation in the form of Acts of Parliament, rules and regulations, pending legislation contained in Bills tabled before Parliament and selected Legal Notices and Gazette Notices. Issue 13: July - December 2010
THE NATIONAL COUNCIL FOR LAW REPORTING
STRATEGIC PLAN 2009-2012
Nclr Adopts First StrategIc Plan
Transforming Legal Information Into Public Knowledge
Annual Meeting Of The Association of Reporters Of Judicial Decisions - Las Vegas, USA
Inside KenyaS First Virtual Court
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Introducing The Klr Monthly

Plus:
*Legislative Update *Case Law *Law Reform And New Jurisprudence Issues
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Transforming Legal Information Into Public Knowledge
The Bench Bulletin

A publication of The National Council for Law Reporting
The Bench Bulletin is the definitive intelligence briefing for Kenyas judicial officers, the law practitioner, managers and the business people. It is a quarterly digest of recent developments in law, particularly, case law, new legislation in the form of Acts of Parliament, rules and regulations, pending legislation contained in Bills tabled before Parliament and selected Legal Notices and Gazette Notices. Issue 12: April-June 2010
Farewell To Mrs. Gladys Boss Shollei
NCLR Moves Towards Paperless Office Environment
NCLR Strategic Planning Retreat
Judicial Opinions
Legislative Update
Issues For Law Reform From The Bench
The National Council for Law Reporting - The Official Law Reporter of the Republic of Kenya
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Bench Bulletin
From The Courts - Interim Independent Constitutional Dispute Resolution Court (IICDRC) - Cases
1. The Council Members ...............................................1 2. The Inbox .......................................................................2 3. Cases Reported ............................................................3 4. Digest of Cases Featured .........................................5 5. Editors Note ...............................................................15 6. Judiciary ICT Strategic Policy and Plan............16 7. Editorial Department ..............................................18 8. Strategic Planning Quality Assurance and Performance Department.......................................22 9. Laws of Kenya Department ...................................25 10. Legislative update ...................................................27 11. The Law Society of Kenya Justice Cup, 2010 ............................................................................ 33 12. Feature Case ............................................................ 34 13. Court of Appeal .......................................................36 14. High Court .................................................................57 15. Interim Independent Constitutional Dispute Resolution Court (IICDRC) .................................79 16. Law Reform and Emerging Jurisprudence ...91
Table of Contents
THE NATIONAL COUNCIL FOR LAW REPORTING MEMBERS

The Hon Mr. Justice Johnson Evan Gicheru, EGH Chief Justice, Chairman The Hon Lady Justice J. W. Lesiit Judge of the High Court Dr. Ben Sihanya Dean, School of Law, University of Nairobi Mr. Zablon M. O. Kona Government Printers Representative Ms Florence Muoti Mwangangi Law Society of Kenya Mr. Michael M. Murungi Editor/C.E.O Mr. Evans Monari Law Society of Kenya Mr. Antony Otengo Ombwayo Attorney-Generals Representative Mrs L. A. Achode Registrar, High Court of Kenya The Hon Mr Justice P. K. Tunoi Judge of the Court of Appeal
The Hon. Mr. Justice J. E. Gicheru, EGH, Chief Justice of Kenya, Chairman
EDITORIAL ASSISTANT Esther Nyaiyaki CONTRIBUTORS Michael Murungi Esther Nyaiyaki Ann Asugah Monica Achode Nicholas Okemwa Cornelius Lupao Andrew Halonyere Njeri Githanga Kamau Nelson Tunoi Emma Kinya DESIGN AND LAYOUT Catherine Moni John Muriuki Geoffrey Andare PROOFREADERS Phoebe Ayaya Innocent Ngulu
EDITOR Michael Murungi
Disclaimer: While the National Council for Law Reporting has made every effort to ensure both the accuracy and comprehensiveness of the information contained in this publication, the Council makes no warranties or guarantees in that respect and repudiates any liability for any loss or damage that may arise from an inaccuracy or the omission of any information.
Contacts National Council for law Reporting Milimani Commercial Courts Ground Floor, Ngong Road Email: info@kenyalaw.org Tel: (+254) (020) 271 27 67, 271 92 31 Fax: (+254) (020) 2712694 NAIROBI, KENYA www.kenyalaw.org Facebook: Kenya Law Reports www.youtube.com/kenyalawreports
Issue 13: July-December 2010
Kenya Law Reports What They Said

Today is a great day for Kenya I feel honoured to be your President at this moment because this is the most important day in the history of our nation since independence. President Mwai Kibaki during the inauguration of Kenyas new Constitution at Uhuru Park on August 27, 2010
Bench Bulletin
His Excellency Hon. Mwai Kibaki

We declare that section 204 [of the Penal Code] shall, to the extent that it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the CONSTITUTION, which.makes no such mandatory provision. Unfortunately in this country no one, as far as we are aware, has raised the issue of whether the delay in execution of prisoners who have been on death row for a long period of time is inconsistent with constitutional provisions and such issue is not raised before us in this appeal. The Court of Appeal (RSC Omolo, PN Waki & JW Onyango Otieno JJ A) in Godfrey Ngotho Mutiso v Republic [2010] eKLR, July 30, 2010
The Hon. Mr. Justice P. N. Waki

The right is to trial without undue delay. It is not a right not to be tried after undue delay. The breach of the right to personal liberty is not trial-related and it did not render the subsequent trial a nullity. The Court of Appeal (EM Githinji, PN Waki & A Visram JJ A) in (Julius Kamau Mbugua v Republic ) [2010] KLR (October 8, 2010) when it reviewed previous cases over which there had been a diversity of opinion and held that where the right (under the now repealed Constitution) of an arrested person to be brought to court within a reasonable time was violated, it was a breach of a civil right, though constitutional in nature, which was beyond the statutory duty of a criminal court and which was compensatable by damages or by a Habeas corpus application.
The Hon. Mr. Justice E. M. Githinji

There was no legitimate governmental objective or purpose that would be served by denying the inmates the right to vote in a referendumThe peoples constituent right to vote in a referendum is a basic human right. The Interim Independent Constitutional Dispute Resolution Court (S. Mukunya, J. Mohamed, S. Omondi, S. ole Kantai & M.N. Kioga JJ) in its judgment on June 23, 2010 in which it ruled that prisoners of sound mind over the age of 18 years and who had not committed an electoral offence were entitled to vote in the national referendum on the New Constitution of Kenya.
Regrettably, in the circumstances I cant hand over my copy [of the Court of Appeal Rules] to you. October 11, 2010 - Court of Appeal Judge M. Ole Keiwua in Nairobi to lawyer H.A. Omar who while arguing an application via video-link from Mombasa during Kenyas first video-conferenced court session, was having difficulties in crossreferencing to his copy of the Rules.
Issue13: July-December 2010
Kenya Law Reports Cases Reported COURT OF APPEAL

Ali hassan Abdirahman v Mahamud Muhumed Sirat & 2 others
Bench Bulletin
Attorney General v Hon. Prof. George Saitoti Civil Application No. Nai 75 of 2007....................................................... 43 Aneriko M. Simiyu v Redempta Simati Civil Appeal No. 227 of 2004 ................................................................................... 53 David Irungu Muriithi v Republic Criminal Appeal No. 379 of 2009................................................................................... 53 Francis Gachoki Murage v Juliana Wainoi Kinyua and another Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008................................................................ 45 Jacob Kirimu Kabiru v Republic Criminal Appeal No. 363 of 2009........................................................................................ 52 Joseph Kiangoi v Wachira Waruru and 2 Others Civil Appeal (Application) No. 130 of 2008 ................................ 39 Joseph Nathaniel Kipruto arap Ngok v Attorney General & another [2010] eKLR Kenya Anti-Corruption Commission v First Mercantile Securities Corporation Civil Appeal No. 326 of 2005...................................................................................................................................................................... 39 Civil Appeal No. 194 of 2008 ..................................................................................................................................................................... 40 Civil Appeal (Application) No. 139 of 2009 ......................................................................................................................................... 37
Civil Appeal No 26 of 2010 ......................................................................................................................................................................... 51
Kenya Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 .................................................. 41 Kenya Shell Limited v Milkah Kerubo Onkoba Civil Appeal No. 298 of 2004 .................................................................. 55 Mwakwere Chirau Ali v Ayub Juma Mwakesi and Another Civil Appeal No. 38 of 2010 ........................................... 36 Mwango Jambo Chilango v Republic Criminal Appeal No. 415 of 2009 .............................................................................. 47 R v Public Procurement Administrative Review Board & 3 Others Salim Mohammed Oyuga v Republic Criminal Appeal No. 207 of 2009 .............................................................................. 48 Standard Limited v G.N. Kagia t/a Kagia & Company Avocates Civil Appeal No115 of 2003................................... 49 Wellington Nganga Muthiora v Akamba Public Road Services Limited & Another Civil Appeal No. 260 of 2004 ..................................................................................................................................................................... 50 Civil Application No Nai 63 of 2010 (UR 43/2010).......................................................................................................................... 44
HIGH COURT
Dickson Daniel Karaba v John Ngata Kariuki & 2 others [2010] eKLR Election Petition No. 3 of 2008............ 58 Dickson Daniel Karaba v John Ngata Kariuki & 2 others Election Petition No. 3 of 2008........................................ 74 Harun Thungu Wakaba and 20 others v The Attorney General [2010] In Re the Matter of Zipporah Wambui Mathara [2010] eKLR Bankruptcy Cause No. 19 of 2010....................... 69 Kingsway Motors Limited v Corner Garage Transport Limited Civil Suit No 1390 of 1999.................................... 61 Kerosi Ondieki v Minister of State for Defence and another Petition No. 181 of 2010 ............................................. 68 Mary Ariviza v Interim Independent Electoral Commission of Kenya & another [2010] eKLR Mohamed Aktar Kana v Attorney General Constitutional Application No. 544 of 2010 ........................................... 71 Republic v Taiko Kitende Muinya Criminal Case No. 65 of 2010 ............................................................................................ 67 Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc Republic v Danson Mgunya and Another Criminal Case No 26 of 2008.............................................................................. 73 Application No. 434 of 2009....................................................................................................................................................................... 76 3 Misc. Civil Application No. 273 of 2010 ................................................................................................................................................ 66 Misc.Appl. No. 1411(OS) of 2004 (consolidated).............................................................................................................................. 62
Kenya Law Reports Cases Reported
Bench Bulletin
Salina Soote Rotich v Caroline Cheptoo & 2 Others Civil Appeal No. 48 of 2010 .......................................................... 64 Sobeth Developers Ltd v South Nyanza Sugar Co. Ltd Civil Case No. 85 of 2000 ........................................................... 57 Zuhura Suleiman v the Commissioner of Police and 2 others Misc. Criminal Application No. 441 of 2010.... 71 William Maina Kamanda v Maragaret Wanjiru Kariuki & 2 Others Election Petition 5 of 2008.......................... 65 INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE COURT (IICDRC) Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others Constitutional Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR Constitutional Bishop Joseph Kimani and 2 Others v the Attorney General and two others Constitutional Petition No. 5 of 2010 ................................................................................................................................................................................... 81 Petition No. 3 of 2010 ................................................................................................................................................................................... 83 Petition No. 4 of 2010.................................................................................................................................................................................... 96
Eric Nicholas Omondi & 8 Others v AG & 2 Others Constitutional Petition No. 2 of 2010 ...................................... 86 Mary Ariviza and another v Interim Independent Electoral Commission of Kenya & 3 others [2010] Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission eKLR Constitutional Petition No. 7 of 2010 ....................................................................................................................................... 88 (2010 eKLR) Constitutional Petition No. 1 of 2010 ....................................................................................................................... 79
Kenya Law Reports Digest of Cases Featured COURT OF APPEAL
Bench Bulletin
CIVIL PRACTICE AND PROCEDURE Application - application for extension of time to file an intended appeal-applicant making the application 4 years after the decision being appealed against was delivered-effect of the inordinate delay on the application-factors considered by court before grant of application for stay pending appeal-Court of Appeal Rules, rule4.
Attorney General v Hon. Prof. George Saitoti Civil Application No. Nai 75 of 2007.................................................................... 43
Appeal appeal against a decision review claims that the court had erred in hearing a second application for review contrary to the rules of procedure dispute involving land - manner in which applications for review ought to be dealt with whether the review was within the ambit of the review jurisdiction whether the appeal had merit - Civil Procedure Rules Order 44.Aneriko M. Simiyu v Redempta Simati Civil Appeal No. 227 of 2004 Civil Practice and Procedure appeal appeal against a decision of the court awarding the respondent damages in a suit for negligence where a diesel tank belonging to the appellant leaked into the respondents well principles established in a claim for damages defence of Act of God duty of the injured party to mitigate the damage - principle of environmental law that the polluter must pay whether failure to disclose the specific tort committed was fatal to the claim rule in Rylands v Fletcher whether the facts established the appellants liability.
Kenya Shell Limited v Milkah Kerubo Onkoba Civil Appeal No. 298 of 2004 ................................................................................ 55
Appeal second appeal against a decision of the lower and superior court dismissing suit for damages in a road traffic accident appellant having produced a police abstract as proof ownership of the motor vehicle evidentiary and probative value of a police abstract - whether a police abstract produced in proof of ownership of the subject vehicle was enough evidence appellate court jurisdiction to hear the appeal.
Wellington Nganga Muthiora v Akamba Public Road Services Limited & Another Civil Appeal No. 260 of 2004 ...................... 50
Damages calculation of damages-calculation of damages being a judicial functions as opposed to being a ministerial act -whether a court can delegate calculation of damages to a different person such as the Deputy Registrar.
Kenya Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 .................................................................... 41
Legal representation where the Attorney General had entered appearance and filed defence on behalf of the second respondent duty of parties to a suit to file a record of change of advocates whether the Attorney General had unquestionable right to represent the second respondent in civil proceedings - Government Proceedings Act (cap 40) section 34;Civil Procedure Rules (cap 21 Sub Leg) Orders III rule 9A, VI.
Joseph Nathaniel Kipruto arap Ngok v Attorney General & another [2010] eKLR Civil Appeal No. 326.................................. 39
Stay application for orders of certiorari and mandamus made by High Court to be stayed pending the determination of intended appeal allegation that High Court only had jurisdiction to grant orders of certiorari, prohibition and mandamus and not a nullification contract application defective where the application sought for stay of order rather than stay of execution overriding objective of the Appellate jurisdiction Act whether the court could treat the application as an application for stay of execution whether the High Court had jurisdiction to declare the contract null and void Rule 5 (2) (b) Court of Appeal Rules and sections 3A, 3B of the Appellate Jurisdiction Act and section 9 (5) Law Reform Act R v Public Procurement Administrative Review Board & 3 Others Civil Application No Nai 63 of 2010
(UR 43/2010)............................................................................................................................................................................................. 44
Striking out - striking out record of appeal for lack of serviceapplication on the ground that the appellants/respondents had failed to serve the notice of appeal on the 3rd defendant in the High Court; a person directly affected by the appeal-test to be applied to determine a directly affected party-where the 3rd defendant was out of courts jurisdiction and attempts to serve her had been futile- overriding objective- interpretation of the overriding objective by the court where in the circumstances, justice was to be found in sustaining the appeal instead of striking it out on a technicality-whether the application could be allowed- Court of Appeal Rules, rule 76(1).
Joseph Kiangoi v Wachira Waruru and 2 Others Civil Appeal (Application) No. 130 of 2008 .................................................... 39
Succession - second appeal against a decree passed by a subordinate court- jurisdiction of the court- whether the court had the jurisdiction to determine a second appeal on a succession matter- Constitution of Kenya, section 64 (1) - Appellate Jurisdiction Act (Cap 9), Section 3 (1).
Francis Gachoki Murage v Juliana Wainoi Kinyua and another Civil Appeal (Application) No. 139 of 2009 ........................... 37
Kenya Law Reports Digest of Cases Featured
Bench Bulletin
Setting aside - appeal against exercise of judicial discretion to set aside judgment entered in default of appearance and defence - principles governing the exercise of the courts discretion to set aside a judgment obtained exparte - principles on which an appellate court can interfere with the exercise of judicial discretion by a Judge.
Joseph Nathaniel Kipruto arap Ngok v Attorney General & another [2010] eKLR Civil Appeal No. 326 ............................. 39
CONTRACT Termination of contract - termination of contract of service where terms of the contract do not specify duration of notice before the contract should be terminated-need for a reasonable notice to be given-what constitutes reasonable notice.
Kenya Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 .................................................................. 41
Termination of contract of service - whether a party to a contact of service need necessarily give any reason for termination of the contract as against the other party.
Kenya Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 ................................................................ 41
Terms of contract of service - where terms of contract of service prescribe how disciplinary action against an employee under the terms should be disciplined-employee alleging that his fundamental rights were breached during a disciplinary action-whether a court can import and consider rules of natural justice in adjudicating on a dispute involving a contract whose terms did not contain matters on rules of natural justice.
Kenya Revenue Authority v Menginya Salim Murgani CivilAppeal No. 108 of 2009................................................................... 41
COURT STRUCTURE - court of Appeal-jurisdiction-appeals from the election court-jurisdiction of the Court of Appeal to hear appeals from an Election Court- preliminary objection to the effect that the Court had no jurisdiction to hear appeals arising from the High Court on the question of validity of an election of a Member of Parliament- establishment of the Court of Appeal by the Constitution under Section 64(1)- procedure to be adopted by the election court with regard to appeals-whether the National Assembly and Presidential Elections Act donated the power to hear appeals from an Election Court to the Court of Appeal- Constitution of Kenya Section 64(1)- National Assembly and Presidential Elections Act (Cap. 7) section 2 and 23.
Mwakwere Chirau Ali v Ayub Juma Mwakesi and Another Civil Appeal No. 38 of 2010............................................................ 36
CONSTITUTIONAL LAW - constitutional right-right to life-enjoyment of right to life-where a sentencing regime imposes a mandatory sentence of death on all proven murder cases-whether an accused person sentenced under such a regime should be given a chance for mitigation on the basis of his criminal culpability.
Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008 ............................................................................ 45
CRIMINAL PRACTICE AND PROCEDURE Appeal second appeal appeal against conviction and 15 year sentence on a charge of defilement of a child - definition of the word defilement whether the appeal had merit Penal Code section 145(1) (Cap63).
Mwango Jambo Chilango v Republic Criminal Appeal No.415 of 2009......................................................................................... 47
Appeal second appeal appeal against a conviction on a charge of robbery with violence appellant convicted on the doctrine of recent possession appellant convicted on the evidence of a single witness whether that doctrine had been applicable failure by prosecution to call some witnesses claims of discrepancies in the dates adduced court duty to call witnesses where evidence was essential whether omissions and discrepancies were curable whether the case had been proven to the required standards - Evidence Act (Cap 80) section 143, Penal Code (Cap 63) section 296 (2).
Salim Mohammed Oyuga v Republic Criminal Appeal No. 207 of 2009......................................................................................... 48
Charge - defective charge sheet charge sheet failing to state the word unlawfully as part of the particulars of the charge effect of whether the omission prejudiced the accused whether the omission could be cured by the provisions of section 382 of the Criminal Procedure Code (Cap 75) appellant not charged with others - evidence identification identification by recognition appellant being an uncle to the complainant appellant claiming that an identification parade should have been conducted concurrent findings from the lower and superior court whether the appellate court could challenge that.
Mwango Jambo Chilango v Republic Criminal AppealNo.415 of 2009.......................................................................................... 47
Plea bargaining appellants murder charge reduced to manslaughter after plea bargaining-appellant sentenced to 10 years imprisonment-appeal on the ground that appellants constitutional right under section 72 (3) (b) of the repealed Constitution had been breached and his mitigating factors had not been considered while sentencing- where there was no right of appeal against a sentence following a plea bargaining agreement -factors to be considered by the trial court
Bench Bulletin
before sentencing-where the trial court had complied with all the procedures relating to plea agreements -whether the sentence could be reduced- Criminal Procedure Code(Cap 75) sections 137A to E, Section 137L (1) and 329 (c)
David Irungu Muriithi v Republic Criminal Appeal No. 379 Of 2009............................................................................................ 53
Plea bargaining appellants murder charge reduced to manslaughter after plea bargaining-appellant sentenced to 10 years imprisonment-appeal on the ground that appellants mitigating factors had not been considered while sentencingwhere there was no right of appeal against a sentence following a plea bargaining agreement -factors to be considered by the trial court before sentencing-failure by the court to take into consideration the willingness of the appellant to assist the dependants of the victim since he was a family member-whether the sentence could be reduced- Criminal Procedure Code(Cap 75) sections 137A to E, 137L (1) and 329 (c)
Jacob Kirimu Kabiru v Republic Criminal Appeal No. 363 of 2009............................................................................................... 52
ELECTION LAW interlocutory appeal appeal against decision of the High Court dismissing an application for dismissal of an election petition, by holding that the 1st respondent was not in breach of the law in filing the election petition since the election court could not invalidate his National Identity Card and Passport ground; that the speaker of the National Assembly acted on a certificate issued by the election court when the law made provisions for an appeal against the decision of that court - whether such an appeal would be efficacious once the writ had been issued whether the appeal had merit National Assembly and Presidential Elections Act (Cap 7) section 23(4).
Ali hassan Abdirahman v Mahamud Muhumed Sirat & 2 OthersCivil Appeal No 26 of 2010.................................................... 51
JURISDICTION jurisdiction of the Court of Appeal to adjudicate on alleged contravention of ones constitutional rights as enshrined in the Constitution of Kenya.
Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008.............................................................................. 45
SENTENCE death sentence-inconsistency of section 204 of the Penal Code (cap 63) Laws of Kenya vis--vis Constitutional Provision for Protection against Inhuman or Degrading Punishment or Treatment-whether a conviction for murder should necessarily attract death sentence.
Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008.............................................................................. 45
TORT Libel essence and rationale for award of damages in libel
Standard Limited v G.N. Kagia t/a Kagia & Company Advocates Civil Appeal No115 of 2003 49
Libel assessment of damages by the trial court in an action for libel-factors the trial court should consider in assessment of damages in an action for libel.
Standard Limited v G.N. Standard Limited v G.N. Kagia t/a Kagia & Company Advocates Civil Appeal No115 of 2003....... 49
Kenya Law Reports Digest of Cases Featured HIGH COURT
Bench Bulletin
ARBITRATION arbitration award setting aside of arbitration award stay of effect of award grounds of bias arbitration being in regard to several suits involving both parties arbitrator having been agreed upon by both parties test for bias in conduct of arbitration proceedings - grounds of setting aside an arbitrators award - procedure of moving the court in such applications - whether the arbitrator misconducted himself in the manner he presided over the arbitration - Civil Procedure Act (Cap 21) section 3A Arbitration Act (4 of 1995) sections 35, 37 Civil Procedure Rules Order 45 rule 3(1), 15, and 19.
Sobeth Developers Ltd v South Nyanza Sugar Co. Ltd Civil Case No. 85 of 2000............................................................................ 57
CONTRACT contract for transportation of goodswhere transporter (common carrier) inserts an exclusion clause in the contract exempting it from liability arising from damage to the goods transported-whether such an exclusion clause can exempt the transporter from the liability arising from damage occasioned to the goods transported-meaning of common carrier.
Kingsway Motors Limited v Corner Garage Transport Limited Civil Suit No 1390 of 1999........................................................... 61
AGENCY principal and agent relationship between a returning officer and the Electoral body- where one is deemed an agent if he acts for another or by operation of the lawpresumption in law that a statutory body appointed responsible, knowledgeable and honest officers in performance of its Constitutional mandate mandate of the 2nd respondent in carrying out elections in Kirinyaga Central Constituency - duty of the 3rd respondent to be responsible for the negligence, want of care and failure to conduct and conclude free and fair elections of the 2nd respondent unless there was evidence of malpractices for the benefit of the 2nd respondent-whether the 3rd respondent was liable for the acts and omissions of the 2nd respondent Constitution of Kenya, section 41.
Dickson Daniel Karaba v John Ngata Kariuki & 2 others [2010] eKLR Election Petition No. 3 of 2008.................................... 58
ADMIRALTY LAW -Piracy -jurisdiction of the Kenyan Courts over piracy on High Seas-applicants charged with the offence of Piracy on High Seas- jurisdiction of the Courts of Kenya extending to every place within Kenya, including territorial waters under section 5 of the Penal Code -where the laws under which the applicants were charged did not provide for an express definition of what constituted the High Seas -whether High Seas was within the territorial waters of Kenya -whether Kenyan Courts had jurisdiction to try the charges against the applicants in the case whether the High Seas were outside the territorial jurisdiction of the Kenyan Courts-Penal Code (Cap 63), Section 5, 69 (1) and 69 (3)
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc. Application No 434 of 2009......... 76
BANKRUPTCY - stay of execution - application for stay of execution of order of committal to civil jail pending bankruptcy proceedings- application on the ground that the applicant was not in a position to appear before the official receiver to provide information for the composition and setting up of creditors meeting due to her incarceration-where the court had the discretion to issue an order of stay of execution in order to give the official receiver the opportunity to consolidate and administer the estate of the debtor whether the application could be allowed- Bankruptcy Act Sections 9, 11 and 100.
In Re the Matter of Zipporah Wambui Mathara [2010] eKLR Bankruptcy Cause No. 19 of 2010............................................. 69
CIVIL PRACTICE AND PROCEDURE - striking out of pleadings-striking out an election petition for want of service-where striking out of a petition on irregularity amounted to a denial of a fundamental right of equality before the law-where it was a general rule of law founded on public policy that matters before the court had to be determined on substantive merit without undue regard to technicalities or procedure - where striking out of pleadings was drastic and draconian which could only be resorted when the jurisdiction of the court had been properly invoked - whether the failure to serve the petition personally could entitle the petitioner to seek and obtain final or interlocutory judgment.
Dickson Daniel Karaba v John Ngata Gitahi & 2 others [2010] eKLR Election Petition No. 3 of 2008...................................... 58
CONSTITUTIONAL LAW Extradition - right of every citizen to be subjected to due process of the law-application to bring back a suspect to the Kenyan jurisdiction-the suspect having been arrested and removed from the Courts jurisdiction without a warrant for arrest having been issued-where all extradition provisions had been disobeyed whether the suspect had been illegally arrested, detained and removed from Kenya- Constitution of Kenya, 2010 section 81 (3)(f).
Zuhura Suleiman v the Commissioner of Police and 2 others Misc. Criminal Application No. 441 of 2010............................... 71
Fundamental right and freedoms - limitation period-time within which to seek redress for breach of the rights- -limitation provisions under the Public Authorities Limitations Act where there was no limitation under the Constitution -whether the Public Authorities Limitations Act could override the Constitution and be used to curtail rights provided under the Constitution- Constitution of Kenya section 3, Public Authorities Limitations Act.
Harun Thungu Wakaba and 20 others v The Attorney General [2010] Misc.Appl. No. 1411(OS) of 2004 (consolidated)......... 62
Bench Bulletin
Fundamental rights and freedoms - breach of -award of damages-quantum of damages-whether the court could award general damages .
Harun Thungu Wakaba and 20 others v The Attorney General [2010]Misc.Appl. No. 1411(OS) of 2004 (consolidated).......... 62
Fundamental rights and freedoms - locus standi to bring such applications-scope of persons to enforce fundamental rights and freedoms in the Bill of Rights- petition brought through the petitioners advocate-whether such a procedural technicality could cause the petition to be struck out-Constitution of Kenya 2010, Article 22, 159(d)
Kerosi Ondieki v Minister of State for Defence and anotherPetition No.181 of 2010.................................................................... 68
Fundamental rights and freedoms - protection against torture or inhuman treatment -claim that the plaintiffs had been subjected to interrogation and various acts of torture, inhuman and degrading treatments sufficiency of facts- where the pleadings were supported by evidence -whether there was breach of the plaintiffs rights- Constitution of Kenya Sections 70, 72(3 & 5), 74(1), 77, 78(1) and79 (1) - the Universal Declaration of Human Rights, Article 5.
Harun Thungu Wakaba and 20 others v The Attorney General [2010]Misc.Appl. No. 1411(OS) of 2004 (consolidated).......... 62
Habeas Corpus - application for writ of habeas corpus -nature and scope of the order of habeas Corpus - where the subject of the application, a terrorist suspect, was absent from the jurisdiction of the High Court whether the Habeas Corpus application could be declared spent- Criminal Procedure Code, Section 389 (1) - Constitution of Kenya, 2010 section 81 (3)(f).
Zuhura Suleiman v the Commissioner of Police and 2 others Misc. Criminal Application No. 441 of 2010............................... 71
Interpretation of the Constitution - Constitutional duties of the Defence Force- where one of the factors that determined the strength of a Defence Force was the quality of the people serving therein- whether fundamental rights and freedoms were absolute or whether they could be limited by other reasonable and justifiable considerations where the alleged discrimination was in the interest of the health of the recruits -whether the requirements for the recruitment were discriminatory- Constitution of Kenya 2010, Article 241 (3).
Kerosi Ondieki v Minister of State for Defence and another Petition No. 181 of 2010.................................................................. 68
Interpretation of various provisions in the Bill of Rights - recruitment into the military-application for a temporary injunction to restrain the 1st respondent from recruiting service men/women and constabularies into the armed forces in contravention of the Constitution - application on the ground that the conditions set out for recruiting into the armed forces manifestly and grossly contravened or violated the Bill of Rights as contained in Chapter 3 of the Constitution - where it was alleged that there was discrimination in the requirements for recruitment - whether the requirements stipulated by the 1st respondent for recruitment were discriminatory and thus contrary to Article 27of the Constitution-Constitution of Kenya 2010, Articles 19, 20, 21, 22, 23, 27, 28, 36, and 259.
Kerosi Ondieki v Minister of State for Defence and another Petition No.181 of 2010................................................................... 68
Jurisdiction - jurisdiction of the High Court to deal with the issue of violation of constitutional rights-claim that the Truth, Justice and Reconciliation Commission (TJRC) could deal with the issue- where the Act establishing the Commission had come into effect after the plaintiffs had filed their suits- whether the court had the mandate to deal with the plaintiffs claims - Constitution of Kenya Section 84 .
Harun Thungu Wakaba and 20 others v The Attorney General [2010] Misc.Appl.No. 1411(OS) of 2004 (consolidated).......... 62
Rendition - right of every citizen to be subjected to due process of the law-application to stop transfer of a suspect from the Kenyan jurisdiction-whether the court could order the Minister for Internal Security not to surrender the applicant/ suspect to Uganda or any other jurisdiction- Constitution of Kenya, 2010 Articles 19, 20, 21, 22, 23, 27, 28, 36, and 259.
Mohamed Aktar Kana v Attorney General Constitutional Application No. 544 of 2010............................................................... 71
Rights of an accused person bail application for bail pending trial accused person charged with murder-right of an arrested person to be released on bond or bail-a new Constitution having been passed under which all offences were bailable-where one was only entitled to be released on reasonable conditions- principals to be considered by the court before granting an applicant bail where the deceased was a son to the accused -whether the applicant was entitled to bail pending trial- Constitution of Kenya, 2010 Article 49(1) (h).
Republic v Taiko Kitende Muinya Criminal Case No.65 of 2010..................................................................................................... 67
Rights of an accused person bail application for bail pending trial accused person charged with murder-right of an arrested person to be released on bond or bail-a new Constitution having been passed under which all offences were bailable-where one was only entitled to be released on reasonable conditions- principles to be considered by the court
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before granting an applicant bail-whether the applicants were entitled to bail pending trial- Constitution of Kenya, 2010 Article 49(1) (h)
Republic v Danson Mgunya and Another Criminal Case No 26 of 2008......................................................................................... 73
Supremacy of the Constitution - application of international law-where International Treaties, and Conventions ratified by Kenya was listed a source of Kenyan law in the new Constitution- Article 11 of the International Covenant on Civil and Political Rights prohibiting imprisonment merely on the ground of inability to fulfill a contractual obligation-where the applicant was a debtor who had been committed to civil jail-whether the Constitution was above the Civil Procedure Act which made the provisions for recovery of money and execution by way of committal of the judgment debtor to civil jail as one of the means of enforcing a judgment-Constitution of Kenya 2010, Section 2(6) -Article 11 of the International Covenant on Civil and Political Rights.
In Re the Matter of Zipporah Wambui Mathara [2010] eKLR Bankruptcy Cause No. 19 of 2010............................................. 69
Supremacy of the Constitution - where the offence of murder was non-bailable under section 123 of the Criminal Procedure Code -Article 49 of the Constitution 2010 providing all offences were bailable-whether Article 49 of the Constitution 2010 superseded section 123 of the Criminal Procedure Code- Constitution of Kenya, 2010 Article 49- Criminal Procedure Code (Cap 75), section 123
Republic v Danson Mgunya and AnotherCriminal Case No 26 of 2008.......................................................................................... 73
CUSTOMARY LAW burial dispute Keiyo customary law in regard to burial claim that the deceased subjected himself to Keiyo customs whether he was bound by the said customs whether Keiyo customs was repugnant to justice and morality.
Salina Soote Rotich v Caroline Cheptoo & 2 Others Civil Appeal No. 48 of 2010......................................................................... 64
ELECTION PETITION Declaration - application brought by the petitioner seeking to be declared the Member Of Parliament for Starehe Constituency where the petitioner had earlier on filed an election petition that sought to nullify the election of the 1st respondent as a Member of Parliament allegations that the parliamentary and presidential elections were flawed and tainted with illegality whether the election was conducted in accordance with the law whether the petitioner could be declared as the Member of Parliament for Starehe Constituency in place of the 1st respondent Section 44(1)(a)Constitution of Kenya; Section 30(1) National Assembly and Presidential Elections Act; Rule 4(3) & (7) of the National Assembly and Presidential Elections(election Petition) Rules
William Maina Kamanda V Margaret Wanjiru Kariuki & 2 Others Election Petition No 5 of 2008.......................................... 65
Service definition and purpose of service where personal service was the best mode of service whether personal service could have been inferred in the circumstances whether the application was incompetent -National Assembly and Presidential Elections Act (Cap 7) Section 20(1) (a) (iv).
Service service of process application to strike out an election petition on the grounds that it had not been served on the 2nd respondent within twenty eight days after the publication of the results as required by law - affidavit of service of the process server silent on service upon the 2nd respondent application opposed claim that due diligence was exercised in the service of the election petition whether the 2nd respondent was duly served with the election petition in accordance with the law National Assembly and Presidential Elections Act (Cap 7) Section 20(1) (a) (iv) - National Assembly (Election Petition Rules) rule 14 (1).
ELECTION LAW Electoral documents election result manner in which results were recorded Presiding Officer required to record the total number of votes cast in favour of each candidate and to sign the declaration set out in Form 16A certifying the results where the said Form 16A had not been signed by the presiding officer or stamped by an Electoral Commission of Kenya (ECK) stamp and did not bear the names of the presiding officer whether a Form 16A which was not signed by a presiding officer could constitute valid results which could be accepted for tallying by a Returning Officer - need for all the presiding officers to sign and stamp the Form 16As for the same to be considered valid whether the petitioner had established to the required standard of proof that the 2nd respondent had accepted invalid results which he tallied and included in the final results as contained in Form 17A
Dickson Daniel Karaba v John Ngata Kariuki & 2 others Election Petition No. 3 of 2008.......................................................... 74
Election petition invalidation of elections requirement that no election should be invalidated because of minor
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irregularities which do not substantially affect the outcome of the election as reflected in the official result where it was clear from the evidence that the electoral malpractices had affected the credibility of the results that were announced and published by the 2nd and 3rd respondents duty of the 2nd and 3rd respondent to ensure that the election process was transparent free and fair - whether the election process was in accordance with the law.
Election petition parliamentary election petition seeking to nullify and declare void the election of the first respondent as Member of Parliament for Kirinyaga Central Constituency irregularities in elections petitioner citing irregularities in the conduct of elections whether the first respondent was validly elected National Assembly and Presidential Elections Act(Cap 7)
EVIDENCE documentary evidence evidence that all the original election materials required to be produced before court by the Returning Officer under rule 19 of the National Assembly Elections (Election Petition) Rules were all destroyed in a fire that burnt down the offices of the 2nd and 3rd respondent where Photostat copies of the original Form 16, 16As, 17, 17As were obtained from the offices of the African Union whether the Photostat copies which were adduced as secondary evidence were admissible as evidence of the content of the originals Section 68(1) Evidence Act (Cap 80)
ESTOPPEL - equitable estoppel -estoppel by conduct-second respondent having submitted himself to court without filing any documents under protest-notice of instruction and appointment filed o behalf of the 2nd respondent-applicant having entered an unconditional appearance in proceedings in court-whether that waived any irregularities-where there was delay of 40 days in bringing the application-whether that estopped the 2nd respondent from challenging service.
Dickson Daniel Karaba v John Ngata Kariuki & another [2010] eKLR Election Petition No. 3 of 2008.................................... 58
INTERPRETATION OF STATUTES interpretation of section 2 of the Magistrates Court Act - whether the provisions of the said section excluded customary burials from matters that the Magistrates Court had jurisdiction to hear and determine Judicature Act (Cap 8) section 3(2) Magistrates Court Act (Cap 10) sections 2,9.
Salina Soote Rotich v Caroline Cheptoo & 2 Others Civil Appeal No. 48 of 2010......................................................................... 64
JUDICIAL REVIEW - certiorari-application to quash a gazette notice on referendum results-application on the ground they were not published according to the law-prayer to prohibit the promulgation of the proposed Constitution of Kenyawhether the court could grant the orders sought.
Mary Ariviza v Interim Independent Electoral Commission of Kenya & another [2010] eKLR Misc. Civil Application No. 273 of 2010........................................................................................................................................................ 66
JURISDICTION Jurisdiction of the High Court - matters arising from the Constitutional review process original jurisdiction on matters arising out of the Constitutional Review process vested on the Interim Independent Constitutional Dispute Resolution Court (IICDRC) whether the special jurisdiction of the High Court to determine matters of judicial review conferred under the Law Reform Act was limited- where the applicants complaint related to the management of the referendum process after the voting- where Section 46(1) of the Constitution of Kenya Review Act gave jurisdiction to the IICDRC to issue appropriate remedies- whether the matter fell within the conduct of the referendum and could be brought by way of petition before the IICDRC -whether the application was within the mandate of the CourtConstitution of Kenya Review Act Sections 43(1), 46(1), 60 A (1).
Mary Ariviza v Interim Independent Electoral Commission of Kenya & another [2010] eKLR Misc. Civil Application No. 273 of 2010........................................................................................................................................................ 66
Jurisdiction of the High Court - where the High Court enjoyed unrestricted and unlimited powers in all matters of substantive law, concerning the general administration of justice in order to fulfill, properly and effectively its role as a court of law- duty of the High Court to ensure strict compliance with the relevant provisions of the law- where the National Assembly and Presidential Elections Act and the rules there under did not provide for striking out an election petitionwhether the court had the jurisdiction to strike out the petition-Constitution of Kenya, section 60(1).
Dickson Daniel Karaba v John Ngata Gitahi & 2 others [2010] eKLR Election Petition No. 3 of 2008...................................... 58
STATUTES interpretation of statutes-where the rules governing election petitions made no provisions for personal service or non service- section 22 (22(a) (Cap 7) providing that petitions would only be summarily rejected where there was no sufficient grounds to grant reliefs sought-Sufficient grounds not to be curtailed by placing a limited interpretation upon
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its meaning-duty of the court to give an intelligent interpretation to the legislation, and not to construe it, in a manner which would imply to it, a meaning not expressly provided for -whether the repetitive or continuous use of a particular procedure gave the court authority to strike out a petition when the law did not provide for that procedure- National Assembly and Presidential Elections Act (Cap 7) Section 22(a).
STATUTE LAW Interpretation of Statutes -piracy- Section 69 of the Penal Code having been repealed by the Merchant Shipping Actdefinition of piracy in the repealed Section where there was no specific definition given of the offence of piracy jure gentium and therefore the elements of the offence were not given- whether piracy under section 371 of the new Act was the same as piracy jure gentium in the repealed Act- Merchant Shipping Act section 371- Penal Code (Cap 63), 69 (1) and 69 (3)
Interpretation of Statutes courts jurisdiction under the Penal Code- where section 5 of the Penal Code was the defining provision with regard to jurisdiction of the Kenyan Courts in so far as the Code was concerned- jurisdiction of the Courts of Kenya extending to every place within Kenya, including territorial waters- jurisdiction of the courts to try the charge of piracy on High Seas under section 69 (1) of the Penal Code-whether section 69 (1) of the Penal Code was inconsistent with the Section 5 of the Penal Code to the extent that it included the High Seas -whether section 5 overrides Section 69 (1) to the extent of the inconsistency- Penal Code (Cap 63), Section 5, 69 (1) and 69 (3)
Repealing of Statutes - transitional clauses where a statute is repealed- Merchant Shipping Act repealing the Penal Code -where there was no clause providing that the repealed Section would not affect the power of the court to convict and sentence the accused persons in respect of the pending piracy cases and offences committed prior to the commencement of the Merchant Shipping Act-whether the jurisdiction of the courts to try the pending piracy cases could be saved in absence of a transitional clause.
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc Application No 434 of 2009.......... 76
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INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE COURT (IICDRC)

CIVIL PRACTICE AND PROCEDURE Parties to a suit - representative suit-locus standi need for one to have a legal interest either vested or contingent in the subject matter before the Court- whether the petitioner had the locus standi to file the petition on behalf of prisoners.
Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission (2010 eKLR) Constitutional Petition No. 1 of 2010.................................................................................................................................................. 79
Rules of procedure - interpretation of the rules- duty of the Court to interpret the Court Rules in a way that promotes the principle of substantial justice without undue regard to technicalities-where the issues raised were substantial and a decision on the issues raised was imperative-whether the court could strike out the petition for not complying with the Civil Procedure Rules and the (Practice and Procedure) Rules of the IICDRC.
Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission (2010 eKLR) Constitutional Petition No. 1 of 2010.................................................................................................................................................. 79
CONSTITUTIONAL LAW Constitution making - Constitution review process review organs in the process-importance of a Referendum in the process-where the court had not been mentioned as a review organ in the process- whether the court had a role in determining what constituted the provisions of the Proposed Constitution of Kenya whether the court could interfere with the referendum process-Constitution of Kenya Review Act (Act No.9 of 2008) section 5-Constitution of Kenya section 47A (2)(a).
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others Constitutional Petition No. 5 of 2010... 81
Constitution making process - referendum-interpretation of the various provisions of the law on holding of referendumpublication of results- when results of a referendum become final whether the law imposed a duty on the 1st respondent as the statutory body with the duty to publish final results of a referendum to ensure that no challenge to the results had been filed before publishing the same - Constitution of Kenya Review Act Section 43(2) 47 A (6) and (7) -Referendum Regulations, regulation 36(1)(c).
Mary Ariviza and another v Interim Independent Electoral Commission of Kenya & 3 others [2010] eKLR Constitutional Petition No. 7 of 2010.......................................................................................................................................................................................... 88
Constitution review process - registration of voters-whether citizens resident outside the geographical jurisdiction of Kenya were entitled to register and participate at the referendum while abroad or overseas-whether the law envisioned registration and polling only at legally prescribed stations within domestic constituencies-whether the prevailing trends were in favour to voting for those in diaspora-whether a referendum o the constitution was just as good as any other election or whether it was a special activity calling for different rules.
Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR Constitutional Petition No. 3 of 2010........... 83
Constitution review process - where the process had a self propelled mechanisms for execution of the process- duty of the President Under Section 47A (6) and (7) to promulgate the Constitution within 14 days after publication of the final results of the referendum in the Kenya Gazette or the Constitution became law automatically on the expiration of 14 dayswhere the provision of the supreme law was binding on the court whether the court could grant the remedy sought in the face of the coming into force of the said constitutional provision - Constitution of Kenya Review Act Section 47A (6) and (7).
Constitutional Law - constitutional review process-constitutional review organs-Committee of Experts (2nd respondent)whether the 2nd respondent properly executed its mandate when identifying contentious issues-whether the 2nd respondent had any discretion in determining what was contentious-whether the 2nd respondent was bound by the recommendations of the Parliamentary Select Committee (PSC)-whether the content of the draft constitution was to be limited to what existed in prior draft constitutions.
Constitutional making - Constitution review process-review organs- organs of review created to specifically check each other- Committee of Experts (CoE)- CoE granted the power to define contentious issues- whether the CoE had exercised its power and mandate in accordance with the law- Constitution of Kenya Review Act , Section 5.
Bishop Joseph Kimani and 2 Others v the Attorney General and two othersConstitutional Petition No. 4 of 2010................. 96
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Constitutional review process - referendum-participation in a free and fair referendum-referendum question-whether the mandate to craft the referendum question resided with the Interim Independent Electoral Commission (IIEC)-whether there was a specific manner in which the referendum question was to be framed-whether the character of the referendum question for presentation at the referendum was such as to compromise the Petitioners sovereign right to participate in the writing of the Constitution-whether it was in the public interest for the court to interfere with the process and postpone the referendum.
Fundamental rights and freedoms - violation of-constitution review process-petitioners alleging that their rights to replace the constitution were violated by the acts of the various state officers and public bodies for whom the 1st respondent was legally answerable for-whether the proposed constitution was properly published as required by law-whether the publication of the two draft constitutions and denouncing of one version two weeks later infringed on the petitioners sovereign right to participate in the writing of the constitution-whether the alleged alterations in the proposed constitution by the 1st respondent were so fundamental as to alter the character of the draft document by the 2nd respondent-whether such editorial errors were of such a magnitude as to compromise the sovereign right of the petitioners to take participate in the constitution making process.
Referendum - challenges to the referendum results-application to quash a gazette notice on referendum resultsapplication on the ground they were not published according to the law-prayer to prohibit the promulgation of the proposed Constitution of Kenya- argument that the process of promulgating the ratified Constitution ought to have been stopped as per section 43(3) of the CKRA until such petition was finally disposed off according to Section 44 of the CKRA-whether the gazzettement of the referendum results by the 1st respondent on had been improper and illegal- whether the court could grant the orders sought- Constitution of Kenya Review Act (CKRA) sections 43(3) and 44.
Referendum - challenges to the referendum results-when such challenges are to be brought-service of petition on respondent-time within which to effect service- security for costs-time within which to deposit the security for costseffect of a petition where security for costs is not paid- whether the petition had to be dismissed- Interim Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules 2010, rule 9- Constitution of Kenya Review Act Sections 44(3) & (4).
Mary Ariviza and another v Interim Independent Electoral Commission of Kenya & 3 others [2010] eKLRConstitutional Petition No. 7 of 2010.......................................................................................................................................................................................... 88
Referendum - disputes arising out of the referendum process-need for the disputes to be brought at earliest available opportunity because of their potential impact-dispute brought less than a month to the referendum-where the dispute could have been brought earlier-whether instituting the petition at that stage was an abuse of the court process.
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others Constitutional Petition No. 5 of 2010... 81
Supremacy of the constitution - referendum- constituent power of the people - power to make, enact and amend a Constitution - peoples right to vote and determine whether or not the proposals contained in the Proposed Constitution of Kenya (PCK) would become the supreme law whether any other body had the power to alter or attempt to make any changes as to the contents of the PCK except the people themselves in the exercise of their constituent power to vote in a referendum.
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others ConstitutionalPetition No. 5 of 2010.... 81
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Kenya Law Reports Editors Note NOTE FROM THE EDITOR
Bench Bulletin
Michael M. Murungi Editor/C.E.O.
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Kenya Law Reports Judiciary Ict Strategic Policy And Plan INSIDE KENYAS FIRST VIRTUAL COURT SESSION
Bench Bulletin
By Michael M. Murungi
Court of Appeal Judge Mr. Justice M. Ole Keiwua (seated front) flanked by Ms. Jean Muthoni, a court clerk, presides over Kenyas first virtual court session at the Nairobi Law Courts on October 11, 2010. On the screen in front of him are lawyers making submissions from a video-conference terminal at the Mombasa Law Courts, about 400 Kms away from the Judges terminal.
On 11th October, 2010, Justice M. Ole Keiwua, a Judge of the Court of Appeal of Kenya, presided over the hearing of an application for extension of time within which to file a notice of appeal in the case of Yasmin Abdulkarim t/a Y.A. Ali Advocates v. Southern Credit Banking Corporation Ltd, Mombasa Civil Application NAI 161 of 2010. Such applications are routinely heard and disposed by the Court of Appeal. However, the special thing about this particular session was that the presiding judge was sitting at the Nairobi Law Courts while the lawyers for both parties made their submissions from the Mombasa Law Courts, over 400 kilometres away, in what may very well have been East Africas first videoconferenced court session.
This virtual court session was the first in a series of three other sessions that were the run-up to the launch by Chief Justice J.E. Gicheru of the Judiciarys ICT Policy and Strategic Plan 2011-2013 at a public ceremony on October 14, 2010. The policy and plan outlines the Judiciarys policy and strategic approach in incorporating information technology as an aid in the administration of justice. The virtual court was a showcase of some of the ICT initiatives and projects anticipated in the Strategic Plan. During the launch ceremony at the Chief Justices Garden outside the Nairobi Law Courts, invited guests were treated to a virtual court session beamed live through large flat-screen monitors installed at Garden. Video-conferencing technology The Virtual Court is a concept that seeks to build on the positive use of video conferencing technology by firstly interlinking court stations and ultimately linking court stations with prisons and other locations in order to dispense with the need to produce an accused person in court; or for parties, advocates, witnesses and court staff to appear personally before a judicial officer; and for the Judiciary to save administrative costs and time.
The virtual court features a high capacity point-to-point fibre optic link between the Mombasa Law Courts and the Nairobi Law Courts. On both terminals there is a videoconference room with acoustically enhanced room design and state-of-the-art video-conferencing technology - video cameras, large screen video display/monitors, a sound-system and information processing equipment. By prior arrangement, all persons involved in a case that has been designated for hearing through videoconference will have been informed and their consent obtained. On the time when the hearing or proceeding is scheduled, a communication link is established between the two terminals so that a live video of the presiding Judge/Magistrate is displayed to the accused person, litigant or lawyer at one terminal (the remote terminal) and in turn a live video of the accused person, litigant or lawyer and the other persons present will be displayed at the Judges/Magistrates terminal (court terminal). For the purpose of the pilot phase of the virtual court concept, all the parties and their advocates and witnesses will be at the remote terminal and the court terminal will only have the judge or magistrate, a court clerk a designated
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technical co-ordinator and any other court official as the judge or magistrate may direct. The pilot phase will not feature the examination of witnesses, evidence or exhibits by advocates or parties located at different terminals.
Prior informed consent and legal uncertainties However, due to the novelty of this concept and being cautious that there may be certain legal uncertainties surrounding the use of the video-conferencing in the hearing court cases, parties or advocates whose cases have been selected for hearing using the virtual court concept are asked to give their consent to the arrangement. Once the consent has been obtained, the parties indicate that they understand and agree to abide by The Guidelines for Virtual Court Sessions, a set of administrative guidelines which the Judiciary has developed to guide all persons participating in the virtual court. Does the term appearance in person include a virtual appearance The rules that govern the procedure in civil and criminal proceedings in the courts of Kenya are the Civil Procedure Act and Rules, the Appellate Jurisdiction Act, the Court of Appeal Rules and the Criminal Procedure Act. Invariably, the Acts and rules use the terms in person or by advocates in their references to how a litigant or an accused person may appear in court. The uncertainty here would be whether a virtual appearance may be considered to be within the meaning an appearance in person. What is the geographical location of the virtual court? The physical location of a court is a matter that is hard woven into the formal documents and procedural niceties of the courts of Kenya. References to where the court is sitting and where a court order was issued carry important legal-procedural implications. Generally, cases are heard and determined at the physical location where the registry in which they were filed is located. With the first virtual court, the Judge was sitting in Nairobi as he presided over a case filed in the Mombasa Court Registry. When he had finished hearing the application and was in the course of concluding his ruling, Judge Ole Keiwua wondered aloud whether the court order was to be considered as having been issued in Nairobi or in Mombasa. The advocates at the Mombasa terminal looked momentarily at each other and then looked back at the Judge with suppressed laughter obviously as amused by the conundrum as they were unprepared for it. Some of the legal uncertainties became hilariously evident during the first virtual court session.
Examination of witness demeanour and exhibits The (impersonal?) nature of virtual interactions may raise the question whether a judicial officer would be in a position to qualitatively observe the demeanour of witnesses (an important aspect in determining the credibility of a witness) or to effectively inspect a piece of evidentiary material such as a physical exhibit. This was demonstrated when noticing that one of the lawyers appearing on the screen was having trouble finding a provision of law in his copy of the Court of Appeal Rules, Judge Ole Keiwua said, Regrettably in the circumstances I cant hand over my copy to you to the accompaniment of further laughter.
Do the recently enacted provisions on electronic transactions eliminate some of these uncertainties? Section 83G of the Kenya Information & Communications Act, 1998 provides for the recognition of electronic records. It states that where any law provides that information or other matter shall be in writing, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is rendered or made available in an electronic form; and accessible so as to be usable for a subsequent reference. While it would strain the interpretation of this section to argue that it expressly gives legal recognition to virtual court appearances, the argument that the Act in itself does not necessarily outlaw virtual court sessions would be equally if not more compelling. Perhaps proponents of the latter argument would find support from no lesser a law than the newly promulgated Constitution of Kenya 2010.
The Constitution of Kenya 2010 Part 1 of the Constitution establishes the Judiciary and prescribes the manner in which judicial authority shall be exercised. In section 159, it states that Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. One of the principles set out in the Constitution as one which shall guide the courts in the exercise of judicial authority sounds like the opening line of a submission by a lawyer who is opposing an argument by his counterpart challenging the legality of proceedings conducted in a virtual court: Justice shall be administered without undue regard to procedural technicalities. Further, in section 232, the values and principles of public service are stated as including: efficient, effective and economic use of resources responsive, prompt, effective, impartial and equitable provision of services. The savings in time and physical and financial resources and the improvements in the provision of judicial services that would result from the effective application of the virtual court concept would answer directly to the high ideals of public service provided in the Constitution. Once the virtual court concept has been successfully piloted, the Judiciary plans to roll it out along with other initiatives outlined in its ICT Policy & Strategic Plan 2011-2013.
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Kenya Law Reports Editorial Department THE 29

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ANNUAL MEETING OF THE ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS (ARJD) - LAS VEGAS NEVADA, USA
By Monica Achode Editorial Department

The National Council for Law Reporting is a member of the International Association of Reporters of Judicial Decisions, the ARJD. The ARJDs purpose is to improve the accuracy and efficiency of the reporting of judicial decisions. The Association also serves as a forum for communication and cooperation among official Reporters and others in the legal publishing profession. The ARJD holds its annual meeting each August. The meeting offers educational programs for members and others involved in reporting judicial decisions, as well as business sessions limited to Association members.
The Council has been attending the ARJD meetings since 2006 and this year it was held in Las Vegas, Nevada in USA from the 4th to the 9th of August Ms. Monica Achode, Snr. Law Reporter, 2010. Apart from the conference, social events were Team Leader, Editorial Department. scheduled, providing an informal setting for attendees to interact and discuss issues of common interest. The Council was represented by the following officers this year: 1. Mr. Michael M. Murungi, CEO/Editor, National Council for Law Reporting 2. Ms. Esther N. Onchana, Senior Assistant Editor, NCLR 3. Ms. Monica M. Achode, Senior Law Reporter, NCLR
The conference commenced with peer networking and welcoming remarks from Louise Meagher, the ARJD President. The congregation was also welcomed to Las Vegas by the Mayor of Las Vegas, the Honorable Oscar Goodman. This was followed by a narration of the early history of the ARJD by Thomas M. Merrit, a retired reporter of decisions of the Massachusetts Supreme Judicial Court. During the round table discussions the twin issues addressed were; membership participation, specifically current membership, expanding and increasing membership participation, and communication, specifically the current tools utilized and the role of social networks such as facebook, twitter, blogs and others.
The Chief Justice of the Nevada Supreme Court, Hon. Justice Ron D. Parraguirre addressed the conference on the Nevada Court System. He outlined the court hierarchy and system explaining that in Nevada it consisted of the Supreme Court, District Court, Municipal court, and Justices Court and that credit and collection cases were determined by the District Court and the Justices Court. He further explained that the District Court had original jurisdiction on all civil and criminal cases, that the Justices Court had jurisdiction over actions arising on contract where the amount in controversy did not exceed $7,500 exclusive of interest and that Small Claims was a division of the Justices Court and had jurisdiction over money claims in which the amount in controversy did not exceed $3,500. Moreover, the defendant had to reside, be employed or do business in the township in which the action was filed. Sara Beckstrand, the Vice President human resources of Thomson Reuters made a presentation about managing employees of different generations. She defined the four generations as the Silents (born before the 60s), the Baby Boomers (born in the 60s), the Gen X (born in the 70s) and the Millenials (born after the 80s) explaining the trends in each generation and how they interacted with each other. The day was capped by a tour of Lake Mead and a dinner cruise hosted by the Thompson Reuters.
Amongst the keynote presentations was that made by the Editor/CEO of the National Council for Law Reporting, Mr. Michael Murungi on the Kenyan experience of Law Reporting and moving beyond traditional law reporting. He expounded on NCLRs expanded mandate of law revision as well as the other products offered by the NCLR such as the causelist, Kenya Gazette and the Bench Bulletin. He also expounded on the use of ICT in the operations of the office and pointed out that the NCLR has now adopted the use of Alfresco, a leading open source enterprise content management system. After Mr. Murungis presentation, the ARJD asked him to share with it more information about the Alfresco document
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management system in use by the NCLR so that they could share it with the members. NCLR also offered the ARJD assistance in re-designing and updating the ARJD website. At this time it was also proposed that the 2013 ARJD meeting be hosted in Kenya.
A key point of discussion in the conference was the move by the Supreme Court of Arkansas to exclusive online reporting. The discussion on Mr. M. Murungi, the Editor & CEO, NCLR, making his presentation titled: Arkansa Conversion to Online Opinions was Moving Beyond Traditional Law Reporting: the Experience of the National led by Ralph W. Preston, a reporter of decisions Council for Law Reporting during the conference of the Supreme Court of Ohio and Susan P. Williams of the Supreme Court and Court of Appeals of Arkansas. The Supreme Court of Arkansas with effect from July 1, 2009 established the electronic version of the appellate decisions posted on the Arkansas judiciary website as the official reports of those decisions, effectively eliminating the need for the printed reports. The discussion focused around the challenges they have faced up to that point as well as some recommendations for any jurisdiction wishing to undertake the same. In a small ceremony Louise Meagher, the outgoing President of the ARJD was given a farewell speech and a vote of thanks. Mr. Murungi then presented the incoming president of the ARJD, Mr. Ralph W. Preston with a ceremonial Maasai rungu given to the community leaders as a representation of his taking on the new office as leader of the ARJD meeting be hosted in Kenya. Other presenters at the conference included Professor Nancy B. Rapoport, a professor of law at the Gordon Silver University who made a presentation on, lawyers image in modern society.
Other presenters at the conference included Professor Nancy B. Rapoport, a professor of law at the Gordon Silver University who made a presentation on, lawyers image in modern society.
A key point of discussion in the conference was the move by the Supreme Court of Arkansas to exclusive online reporting. The discussion on Arkansa Conversion to Online Opinions was led by Ralph W. Preston, a reporter of decisions of the Supreme Court of Ohio and Susan P. Williams of the Supreme Court and Court of Appeals of Arkansas. The Supreme Court of Arkansas with effect from July 1, 2009 established the electronic version of the appellate decisions posted on the Arkansas judiciary website as the official reports of those decisions, effectively eliminating the need for the printed reports. The discussion focused around the challenges they have faced up to that point as well as some recommendations for any jurisdiction wishing to undertake the same. In a small ceremony Louise Meagher, the outgoing President of the ARJD was given a farewell speech and a vote of thanks. Mr. Murungi then presented the incoming president of the ARJD, Mr. Ralph W. Preston with a ceremonial Maasai rungu given to the community leaders as a representation of his taking on the new office as leader of the ARJD. The concluding session revolved around plans for the preparation of the 2011, 2012 and 2013 sites for the ARJD meeting. The meeting ended on a high note with a majority of the members voting in favour of holding the 2013 meeting in Kenya, hosted by the NCLR. It was proposed that the meeting in Kenya be organized as an international symposium on official law reporting and that donors and partners be approached to supplement the cost of the conference.
Mr. Murungi presenting. Mr. Ralph W. Preston , the incoming ARJD President with a complimentary Maasai leadership baton
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In that regard, a special committee was established to: - Inquire into the projected costs of the conference; - To prepare a tentantive programme with a schedule of proposed speakers and events; - To prepare proposals for funding and forward them to donors and partners; - To approach the vendors who have traditionally partnered with the ARJD with a view to obtaining their support for the 2013 meeting; - To make a report on all the above in the next meeting of the ARJD.
The Committee is comprised of: - Mr Michael Murungi, Editor, Kenya Law Reports (Chairperson) - Mr. C. Clifford Allen, Reporter of Decisions Massachusetts Supreme Judicial Court - Mr. Roger Bilodeau, Q.C., Registrar, Supreme Court of Canada - Ms. Leah Walker, Technical Assistant, US Supreme Court Law Reporting Office The members of NCLR who attended the 2010 ARJD meeting in Las Vegas took away many important lessons which will be applied. The most salient of these lessons were:
1. The Procedure for Online Reporting from the Supreme Court of Arkansas The Supreme Court of Arkansas became the first state in the United States to publish and distribute the official report of its appellate decisions electronically. When the Court launched the new format for its official reports this summer of 2009, the searchable database maintained by the Reporter of Decisions included all opinions issued after February 14, 2009, which was the closing date for the final volumes of the Arkansas Reports and the Arkansas Appellate Reports (375 Ark./104 Ark. App.). Arkansas Supreme Court Rule 5-2 was been rewritten to reflect these changes. Further, the Courts change to Rule 5-2 abandoned the distinction between published and unpublished opinions and made every Supreme Court and Court of Appeals opinion issued after July 1, 2009, precedent. All opinions issued after February 14, 2009, are in the new electronic database of official reports. These opinions must be cited using the new citation form: case name, year of decision, abbreviated court name, and sequential appellate decision number. Parallel cites to a regional reporter, if available, are required. Parallel cites to other unofficial sources, such as electronic databases, are allowed but not required. Pinpoint citations are strongly encouraged in general. The amended rule also prescribes how to do a pinpoint cite to an electronic report (preliminary or final) of an Arkansas case: cite the page of the electronic file where the matter cited appears. The electronic file is secure, with the pages locked in place so that they are the same no matter what computer they are viewed on.
The reasons given by the Court for adopting this new technology was that, printing books had become an increasingly expensive endeavor with the cost of subscriptions increasing, while the number of subscribers declined. In addition, there was a significant lag between the time an appellate decision was issued and its publication in the books. More and more lawyers, litigants, and citizens were getting copies of the appellate decisions from the Courts website on the same day that they were issued and for which there was no cost. The Council faces similar challenges in the publication of the Kenya Law Reports Volumes. It therefore plans to model the Nevada Courts System adopting, with necessary modification, the general principles and guidelines articulated in the per curiam opinion cited as IN RE: ARKANSAS SUPREME COURT AND COURT OF APPEALS RULE 5-2 (delivered on March 28, 2009), particularly: To have the online reports authorized as the official law reports by statute or practice note from the Chief Justice. This will reflect the use of the electronic publication as official law reports. These electronic files shall be authenticated, secured, and maintained by the NCLR on its website. A uniform citation format of decisions included in the Kenya Law Reports to be cited by referring to the volume and page where the decision can be found and the year of the decision. It is hoped that pinpoint citations to specific pages will be adopted as well.
2.E-filing in the Nevada Supreme Court The group on the second day of the meeting had the privilege of touring the Nevada Supreme Court and learning about its use of IT in Court proceedings. The Nevada Supreme Court is the highest court in the Nevada judicial system. With the trial courts of the nine judicial districts (covering seventeen counties), justices courts and municipal courts, the Nevada judicial system constitutes the third branch of government. The Supreme Court is the states highest court and its primary responsibility is to review and rule on appeals from District Court cases. It is funded almost equally from the state general fund and from administrative assessments and has seven justices. The Nevada civil/criminal justice systems comprises of independent courts using different case management systems that interacted daily with multiple justice agencies using a myriad of disparate computer systems which are supported and/or influenced by various information technology departments. The Supreme Court of Nevada has a web-based
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electronic filing (e-filing) system available 24/7 for the filing of criminal and civil cases. The system allows attorneys and district court clerks to file documents; pay for civil filings; view and print electronic versions of documents and docket sheets; and receive electronic notifications when other parties or participants file to your cases. Their main challenge was that while the civil/criminal justice systems had the physical computing networks in place, it lacked the standardized policies and procedures needed for data sharing. Consequently, four critical areas were adversely affected by the States civil/criminal justice system inability to effectively share civil/criminal justice information electronically. These areas were: a) delays in the civil/criminal justice process, b) electronic business, such as public access to reliable and up-to-date case information, c) conducting business on-line, such as e-filing and e-payments, and d) public trust and confidence.
The NCLR is partnering with the judiciary in the formulation of an ICT Policy and Strategy that includes the automation of judicial processes. In that regard, the NCLR will be sharing with the Judiciary the technical knowledge and insight on Nevada Supreme Courts e-filing system, as embodied in the following documents: The next ARJD meeting will be held in Boston, Massachusetts on August 3 8, 2011. The details will be provided at a later date. - Attorney and Settlement Judge Training Manual - District Court Clerk Training Material (Available on http://nevadajudiciary.us/index.php/courtefiling
The NCLR team taking a moment with the Chief Justice of the Nevada Supreme Court, Hon. Justice Ron D. Parraguirre
The NCLRs M. Murungi chats with Chief Justice Ron D. Parraguirre and Ms. Janette Bloom, Reporter of Decisions, Nevada Supreme Court.
The ARJD 2010 conference attendants inside the Nevada Supreme Court during their tour of the Nevada Regional Justice Centre.
Chief Justice, Hon. Justice Ron D. Parraguirre during his presentation.
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Kenya Law Reports
Bench Bulletin
Strategic Planning, Quality Assurance and Performance Evaluation Department THE NATIONAL COUNCIL FOR LAW REPORTING STRATEGIC PLAN 2009-2012
By Esther Nyaiyaki Onchana, Snr Assistant Editor

On July 7, 2010 the Board for the National Council for Law reporting chaired by His Lordship The Hon. Mr. J.E Gicheru, EGH, the Chief Justice resolved to adopt the Council Strategic Plan 2009-2012. This important step concluded the Councils comprehensive strategic planning process that involved broad consultations with stakeholders, departmental briefings and consideration of the working draft at a full-plenary of the Councils staff.
The process resulted in a Strategic Plan for the Council that clearly states its Mission, Vision and strategic priorities required to fulfil them. It is a guide for the Councils future and one that reflects the Councils commitment to improve access to justice by reliably providing access to public legal information. The goals set forth in the Plan were Ms. Esther Nyaiyaki, Snr. Assistant Editor, carefully crafted and some are high-reaching. Some Team Leader of Strategy, Quality Assurance & Performance Department. call upon new attitudes and visions and can be realized within a short amount of time. Others will require a significant infusion of funds and are large in scope but given the considerable commitment of stakeholders, the Councils Board and staff, these goals are attainable. In a foreword note to the Plan, His Lordship The Hon. Mr. J.E Gicheru, EGH, the Chief Justice urges the Councils stakeholders particularly the legal, judicial and law enforcement institutions whose roles and expectations are clearly articulated in the Plan, to strengthen their linkages and inter-agency co-operation with the Councils Secretariat in order to achieve not only the Councils Strategic Plan but also the fulfilment of the stakeholders expectations. Summary of the Plan The Council draws its mandate from section 3 of the National Council for Law Reporting Act and Legal Notice N0. 29 of 2009, to publish the Kenya Law Reports and related publications; to revise, consolidate and publish the Laws of Kenya and to perform such other functions as may be conferred by statute.
The National Council for Law Reporting Strategic Plan 2009-2012 outlines the Councils Vision, Mission, Core Values and Strategic Objectives to be: Vision To be the premier resource institution in Africa providing reliable and accessible legal information to the public. Mission To provide access to public legal information in order to aid the administration of and access to justice, the knowledge and practice of law and the development of jurisprudence. Corporate slogan Kenya Law Reports: Transforming Legal Information into Public Knowledge.
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Kenya Law Reports Strategic Planning, Quality Assurance and Performance Evaluation Department
Official LogoFigure 1 Official Corporate Seal Figure 2
Bench Bulletin
Core values The Councils core values include: Professionalism: To apply the highest levels of knowledge, skills, competencies and ethical values in the various disciplines practiced in executing our mandate. Quality and Excellence in service: To provide goods and services that meets the highest standards of quality and to provide friendly, prompt and excellent customer service. Accessibility: To enhance access to public legal information. Reliability: To provide updated and relevant public legal information. Integrity: To conduct our operations professionally, independently, ethically, honestly and fairly. Innovation and teamwork: To harness and apply creativity, teamwork and continuous improvement in providing access to public legal information Transparency and accountability: To openly report on our activities and account for our use of public resources.
Principles of Service The Council observes the following values and principles in the provision of its services: High standards of professional ethics Efficient, effective and economic use of resources Responsive, prompt, effective, impartial and equitable provision of services Consideration of the public interest in the process of policy making Accountability for administrative acts Transparency and provision to the public of timely, reliable and accurate information Fair competition and merit as the basis of appointments and promotions Representation of Kenyas diverse communities; and Affording adequate and equal opportunities for appointment, training and advancement at all levels without discrimination in gender, origin, creed, colour or political opinion and physical ability.
Strategic Objectives 1. To timeously collect, analyse and provide affordable access to accurate and relevant case law in order to aid the administration of and access to justice, the knowledge and practice of the law and the development of jurisprudence. 2 . To update, revise and publish the Laws of Kenya and to provide Judicial Officers, the legal community and the public with easy affordable, efficient and timely access to the Laws. 3. To promote and undertake continuing legal research on frontier issues in jurisprudence, to adopt contemporary and appropriate standards and best practices in official law reporting and to provide legal research support to judicial officers. 4. To conceptualize and apply creative, innovative, appropriate, reliable, and integrated technological solutions that enable us to efficiently and effectively fulfil our vision and mission. 5. To establish the Council as a benchmark institution in the prudent planning, management, allocation and accounting for financial and capital resources as well as the management of knowledge. 6. To create an organizational framework that ensures the recruitment, selection, management, remuneration, development and rewarding of our human resources and an organizational culture that optimizes productivity and efficiency, encourages innovativeness and creativity and fosters positive inter-personal relations and social responsibility. 7. To develop and implement marketing goals and strategies that foster public knowledge and information about the Councils goods and services establishing the Councils brands as market leaders and providing customer care services that are timely, courteous, and responsive and exceed the needs of our customers. 23
Kenya Law Reports
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Strategic Planning, Quality Assurance and Performance Evaluation Department

8. To acquire adequate, spacious, ergonomic and appropriate premises for the Councils Secretariat. 9. To secure the financial strength and sustainability of the Council by conceptualizing and implementing innovative and sustainable business models for deploying the Councils goods and services. 10. To develop and administer the Strategic Plan for the Council, to continuously monitor, measure and evaluate the implementation of the Plan, and to establish a reference point for departmental activities for quality assurance, knowledge management and continuous improvement.
Activities planned for the Editorial, Laws of Kenya and Research and Development Departments Drawing from the larger organizational plan, each department formulated its own mission, strategies and a plan of activities for 2009-2012. Apart from its flagship publication of the Kenya Law Reports, the Editorial Department plans to introduce new publications such as the KLR Monthly. The KLR Monthly will consist of a summary of all the Court of Appeal and select High Court decisions delivered in a particular month. The summary will incorporates brief head notes, a summary of essential facts, points arising for determination and the holdings by the court. The publication aims to address the need for Judicial Officers and legal practitioners to access for contextually relevant and abstracted content on judicial precedents published on a monthly or even weekly basis. The Laws of Kenya Department intends to establish fully fledged department to be able to sufficiently undertake the comprehensive and continuous revision and updating of the Laws of Kenya. In line with its past pioneering spirit, the department intends to consolidate the experience it has amassed in the recent years to formulate and document guidelines and manuals of law revision in Kenya. The Research Development department has proven vital in tracking and reporting judicial opinions containing pronouncements pertinent to legal and administrative reform. The department proposes to share this knowledge capital among judicial officers, the Legal Education Program. As part of the Councils strategic planning process, the Council formulated a new staff structure involving eight departments:
To read the Strategic Plan in its entirety please go to www.kenyalaw.org
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Kenya Law Reports Laws of Kenya Department
Bench Bulletin
THE CONSTITUTION OF KENYA 2010; PATH TOWARDS THE IMPLEMENTATION OF THE SUPREME LAW
By Ann Asugah, Laws of Kenya Department

Over two months ago, Kenyans overwhelmingly voted in a referendum to have a new Constitution in place. On 27th August 2010, the President led the nation in promulgating the new Constitution at Uhuru Park Grounds. The expectations of the people are high and the implementation process of the new Constitution has started in earnest. The Constitution became effective on the day of its promulgation. However, the implementation process is spread over a period of over 5 years and certain provisions only take effect after the 2012 general elections.
The coming into force of the Constitution 2010 heralds a new beginning for Kenya with regard to matters concerning the administration of justice especially with the introduction of Mrs. Ann Asugah, Assistant Editor and the Supreme Court, entrenchment of alternative methods of Team Leader, Laws of Kenya Department. dispute resolution etc. Several Commissions and institutions have to be put in place to oversee the implementation process. Below is a highlight of the path being taken towards the implementation process to realize the gains envisaged for the whole nation in the new Constitution.
1.Commission for the Implementation of the Constitution Act, 2010 Section 5 of the Sixth Schedule establishes the Commission for the Implementation of the Constitution. According to section 25 of the Sixth Schedule, the Commission ought to be in place within three months (ninety days) after the coming into force of the Constitution. On 29th October 2010, the government published the Commission for the Implementation of the Constitution Act, No. 9 of 2010. The Act seeks to provide for the functions, powers, qualifications of and appointment procedure for members of the Commission and other matters pertinent to the day to day workings of the Commission. The functions of the Commission are to monitor, oversee, and facilitate the development of legislation and overall implementation of the new Constitution. The Commission shall stand dissolved 5 years after its establishment or at the full implementation of the Constitution as determined by Parliament. 2.Vetting of Judges and Magistrates Bill, 2010 The vetting of judges and magistrates is provided for under the Sixth Schedule, section 23(1). The section requires Parliament to enact legislation establishing mechanisms and procedures for vetting the suitability of all judges and magistrates who were in office on the effective date within one year after the Constitution came into force.
The Vetting of Judges and Magistrates Bill, 2010 was published on the 17th of September 2010 and proposes the establishment of an independent tribunal to vet all judges and magistrates within a period of one year but such period may be extended by a further period of one year by Parliament. The tribunals proceedings are to be conducted in camera unless the affected judges or magistrates request for a public hearing.
Among the things to be considered by the tribunal include the track record of the concerned judicial officer, including prior pronouncements, competence, diligence, any pending or concluded cases against the concerned judicial officer and any recommendations for prosecution by the Attorney General or Kenya Anti- Corruption Commission. Once identified and recommended for appointment the judges will have to be approved by Parliament before being appointed by the President in consultation with the Prime Minister. In the event that the tribunal finds a judge or a magistrate unfit to hold office, he or she shall be required to proceed on leave immediately and the tribunal shall inform them in writing on the final determination including the reasons for the decision. According to the Bill, judges who are aggrieved by the decision of the tribunal can have recourse by applying to a review panel within 10 days of the date of determination.
3.The Judicial Service Bill, 2010 Article 171 of the Constitution establishes the Judicial Service Commission with the mandate of; facilitating the independence and accountability of the Judiciary and promoting the efficient, effective and transparent administration of justice. The Judicial Service Bill 2010 published on 24th September 2010 seeks to ensure that the Judicial Service Commission 25
Kenya Law Reports Laws of Kenya Department
Bench Bulletin
is the organ of management of judicial services and, in that behalf, shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law.
The Bill proposes to establish mechanisms and structures for the provision of judicial services and administration of the Judiciary; provide for the structure and appointment of the members of the Judicial Service Commission, to make provision for the operations of the Judiciary Fund which is established by Article 173 of the Constitution; provide for the procedure for appointment, discipline and removal of judges, other judicial officers and staff and to provide for National Council on Administration of Justice.
UPCOMING LEGISLATION
The Fifth Schedule of the Constitution provides a list of legislation that Parliament must enact within stated time frames. For instance, within 1 year, Parliament ought to have enacted legislation relating to citizenship, elections and electoral disputes, laws on Independent Electoral and Boundaries Commission and legislation on political parties. Others include legislation touching on the judiciary, public finance, speaker of county assembly not to mention legislation to guide the operationalization of newly reconstituted bodies such as the Kenya National Human Rights and Equality Commission and the Ethics and Anti-Corruption Commission.
RECENT ENACTMENTS
1.The Prevention of Organized Crimes Act, 2010 Effectively dealing with organized crime has for a long time been hampered owing to inadequacy of legislative framework to tackle such crimes. The peculiar elements of these crimes made it difficult to be comprehensively dealt with under the Penal Code. Some of the organized crime threats include drug trafficking, tax evasion syndicates, cyber crime and counterfeiting. The Act provides for the prevention and punishment of organized crime and the recovery of proceeds of organized criminal group activities or criminal group funds. Dealing with suspects of organized crime will become easier thanks to the passing and subsequent signing into law the Prevention of Organized Crimes Bill. The Act came in to force on the 23rd of September 2010 and provides for stiff penalties for offenders found guilty of organized crimes. An offender under the Act may be jailed for 15 years or a fine of Ksh. 5 Million or to both. The Act moves Kenya closer towards effectively prosecuting the rising cases of syndicated crime and criminalizes administering or taking of oaths purporting to bind a person to belong to an organized criminal group.
2.The Commissions of Inquiry (Amendment) Act, 2010 Section 7 of the Commissions of Inquiry Act (Chapter 102 of the Laws of Kenya) has recently been amended on the passing of the Commissions of Inquiry (Amendment) Bill, 2009 to require a Commissioner to report the results of an inquiry to the National Assembly. In the recent past, reports of such inquires have only been submitted to the president. In a large number of cases, the results of such inquiries have remained unknown to the public despite the fact that inquiries are constituted to interrogate matters that are of a public nature and which directly affect the public. The move is aimed at ensure transparency and accountability in the functioning of the inquiry system. 3.The Alcoholic Drinks Control Act, 2010 The enactment of the controversial Alcoholic Drinks Control Act has changed the licensing regime relating to alcoholic drinks. The Act establishes the Alcoholic Drinks Control Fund from which is to be drawn capital and recurrent expenditure which is to be used research, documentation and dissemination of information on alcoholic drinks, and promoting national cessation, rehabilitation programs and aiding the operations of the District Committees. The Act prohibits the manufacture or production, sale, importation or exportation of any alcoholic drink without a licence.
Section 8 of the Act establishes an Alcoholic Drinks Regulation Committee in every district to issue licenses under the Act. The committee will receive applications for licenses and within 21 days, give notice of the applications to allow for any objections. The committee is to gazette any grant of a licence under the Act.
When the new law comes into force, the Changaa Prohibition Act (Cap. 70) and the Liquor Licensing Act (Cap. 121) will stand repealed. The repeal of the former Act means that the production and consumption of Changaa will now be legal. 4.The Counter Trafficking in Persons Act no. 8 of 2010 The passage of the Counter Trafficking in Persons Act is major step in combating the trafficking in persons in Kenya. Earlier in the year, Kenyans were treated to sordid tales of women and young girls being lured to Saudi Arabia allegedly to be offered jobs and many have been seeking help to return to Kenya.
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Kenya Law Reports Legislative Update
Bench Bulletin
Ms. Petronella Mukaindo, Assistant Law Reporter, Laws of Kenya
SUMMARY OF SELECTED NEW LEGISLATION BETWEEN THE MONTHS OF JULY TO NOVEMBER, 2010
By Ms. Petronella Mukaindo, Assistant Law Reporter DATE OF PUBLICATION IN KENYA GAZETTE KENYA GAZETTE SUPPLEMENT NUMBER
The Counter Trafficking in Persons Act seeks to domesticate the United Nations Convention Against Transnational Organized Crime particularly its Protocol to prevent, suppress and punish trafficking in persons, especially women and children. The Act stipulates stiff penalties for persons who promote trafficking of persons; minimum sentences of 20 years and a fine of not less than Twenty Million shillings. The Act establishes a committee known as the Counter Trafficking in Persons Advisory Committee with representation from the ministries of immigration, foreign affairs, gender and children, labour, Attorney Generals office and others. The function of the Advisory Committee shall be to advise the Minister on inter-agency activities aimed at combating trafficking and the implementation of preventive, protective and rehabilitative programmes for trafficked persons. The Act was published on 24th September 2010 and commences 90 days after publication or on a date to be gazette by the Minister. The Minister had not gazette the commencement of the Act at the time of going to press of this article.
REMARKS
NAME OF LEGISLATION
2nd July, 2010
Supplement No. 41
S u p p l e m e n t The National Hospital Insurance The controversial NHIF rules sought to amend Fund (Standard and Special paragraph 3 of regulation 3 of the National Hospital No. 43
The National Hospital Insurance Fund(Voluntary Contributions) (Amendment) Regulations, 2010 (Legal Notice 108/2010)
The Offices of Minister Act, 2010 This Act was enacted prior to the promulgation of the Constitution and it seeks to limit the number of (No. 3 of 2010) Ministers to not more than twenty four (inclusive of Prime Minister and the two Deputy Prime Ministers), and not less than fifteen. Under the Act, a person cannot be appointed Minister unless such person is a member of Parliament and is a holder of at least a university degree or its equivalent. These provisions are inconsistent with the Article 152 of the new Constitution which provides that a cabinet Secretary (equivalent of Minister) shall not be a Member of Parliament. The Constitution also provides for appointment of not fewer than fourteen and not more than twenty-two Cabinet Secretaries.
Contributions) (Amendment) Insurance Fund (Standard and Special Contributions) Regulations, 2010 (Legal Notice Regulations, 2003 (Legal Notice No. 185/2003) by 107/2010). upgrading contribution rates.
16th July, 2010
Supplement 44 The Tea (Amendment)(No.2) Bill, This Bill seeks to amend the Tea Act, (Chapter 343 of
2010
These regulations amend regulation 5 of the National Hospital Insurance Fund (Voluntary Contributions) Regulations, 2003 (Legal Notice 108/2003) by setting the minimum rate of contribution at three hundred shillings per month.
Supplement 45 The Physical Planning
(Procurement of Physical Planning Services) Regulations, 2010 (Legal Notice 109/2010)
the Laws of Kenya) to introduce necessary reforms in the tea sub-sector. The Bill for instance seeks to repeal section 12A of the Act so as to allow for uprooting of tea without requirement for prior authority from the Tea Board. The Bill also seeks to expand the mandate of the Tea Board of Kenya to include all aspects of tea trade including import, export and local tea trade in addition to reducing the membership of the Board from the current sixteen members to eleven members. Made under section 49 (1) of the Physical Planning Act (Cap. 286), the regulations govern preparation of development plans by the Director of Physical Planning and the procurement of physical planning services.
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Supp. 47
The Government Financial Management (Water Towers Conservation Funds) Regulations, 2010 (Legal Notice No. 115/2010) The Kenya Information and Communications (Electronic Certification and Domain Name Administration) Regulations, 2010
Bench Bulletin
The Regulations establish a Water Towers Conservation Fund whose purpose it to provide funds for the restoration, conservation and sustainable management of the water towers in Kenya.
13th August, 2010
Supp. 49
Retirement Benefits (Amendment) Bill, 2010
The Regulations made under section 83R of the Kenya Information and Communications Act (Cap. 411A) and brought about by legal notice 116 of 2010 provide for the granting of licenses to persons who wish to provide electronic certification services. They set out the responsibilities of certification service providers and the requirements to be met by such applicants. The Bill seeks to amend the Retirement Benefits Act (No. 3 of 1997) by inserting a new section 35B so as to allow employees access to their full contributions upon leaving employment before the mandatory retirement age. On passing of this Bill, a member leaving employment after three years of membership will be entitled to a refund of his or her contribution and payment of up to fifty per cent of the employers contribution((together with investment incomes accrued thereon). Made under section 74C of the Bills of Exchange Act (Cap. 27), the regulations prescribe the particulars of electronic payment information and the particulars of image return documents. The rules also provide for the electronic payment information of cheques. Cheque truncation is a system of cheque clearing and settlement between banks based on electronic data or images or both electronic data and images, without the conventional physical exchange of instruments.
Supp. 50
The Bills of Exchange (Cheque Truncation) Regulations, 2010 (Legal Notice 123/2010)
The Central Bank of Kenya (Currency Handling) Regulations, 2010 (Legal Notice 124/2010)
26th August, 2010
Supp. 52
The Anti-Counterfeit Regulations, 2010 (Legal Notice 126/2010)
These regulate the use of currency notes and coins and their images for publication or promotional purposes. The regulations also address the issue of licensing of cash in transit operators such as cash defacement devices and also the exchange of defaced notes. The regulations revoke the earlier 2008 Regulations (Legal Notice 148 of 2008).
3rd September, 2010
Supp. 53
The Truth, Justice and Reconciliation (Hearing Procedure) Rules, 2010 The Persons with Disabilities (Amendment) Bill, 2010
These regulations made under the Anti-Counterfeit Act (No. 13 of 2008) aid the operationalization of the Act. The rules among other things provide for the various forms to be used in making various applications for example in laying a complaint , applications to seize and detain counterfeit goods, inspection of suspect goods, etc.
Brought about vide legal notice 131 of 2010, these rules detail the procedure to be followed in hearing proceedings before the Truth Justice and Reconciliation Commission. The Bill seeks to amend the Persons with Disabilities Act, 2003 (Act No. 14 of 2003) so as to accord recognition of persons with albinism as amongst the categories of persons identified as being disadvantaged under the Act. This category has not previously been recognized by law as disadvantaged hence not afforded rights that are entitled to the disabled.
Supp. 54
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17th September, 2010 Supp. 65
The Civil Procedure Rules, 2010 (Legal Notice 151/2010)
Bench Bulletin
24th September, 2010
Supp. 69
The Counter-Trafficking in Persons Act, 2010
Made under section 81 of the Civil Procedure Act, these Rules revoke the existing rules. They however come into force ninety (90) after their publication in the Kenya Gazette. Transitional provisions (Order 54 ) under the Rules provide that for all proceedings pending in court at the time of the coming into force of the rules, the provisions of these new rules shall thereafter apply, but without prejudice to the validity of anything previously done. However, where it is impracticable to pick up and apply these rules, then the old procedure continues to apply. The Chief Justice may also issue practice notes or directions as to the procedure to be adopted incase of doubt or any difficulty.
The Counter-Trafficking in Persons Act (Act Number 8 of 2010) is an important legislation in Kenyas efforts to prevent, suppress and punish trafficking of persons especially women and children. The legislation provides stiff penalty for traffickers. A person who for instance trafficks another person for the purpose of exploitation or who finances, controls or abets the offence is liable to imprisonment of not less than thirty years or to a fine of not less than thirty million shillings or to both. The Act also provides guidelines on the trial of offenders and remedies for victims of trafficking in persons. Part IV of the Act establishes a Counter-Trafficking in Persons Advisory Committee responsible for advising on the efforts aimed at combating trafficking and implementation of preventive, protective and rehabilitative programmes for trafficked persons.
Of importance is the Second Schedule to the Act which seeks to amend sections of the Penal Code (Cap. 63), the Sexual Offences Act (Act No. 3 of 2006) and the Children Act (Act No. 8 of 2001). The Act amends sections 260, 264 and 265 of the Penal Code (Cap. 63). A new section 266A of the Penal Code is also introduced in respect to this new legislation. The Act also seeks to repeal sections 13 and 18 of the Sexual Offences Act (Act No. 3 of 2006). *It is to be noted however that at the time of publication of this issue of the Bench Bulletin, the Act had not commenced.
Supp. 70
The Court of Appeal Rules, 2010 Made under section 5 of the Appellate Jurisdiction (Legal Notice 152/2010) Act (Cap. 9), these new Rules revoke and replace the existing rules. They take effect ninety (90) days after their publication in the Kenya Gazette.
Just like the new Civil Procedure Rules, all proceedings pending in the Court at the time of the coming into force of the Rules shall thereafter be guided by the provisions of these Rules, but without prejudice to the validity of anything previously done. However, where its impracticable, then the earlier procedure applies. Part six on Transitional Provisions allow the judge or the Registrar to informally give directions as to the procedure to be adopted in case of any difficulty or doubt.
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1st October, 2010 Supp. 72
Bench Bulletin
Radiation Protection (Safety) The Regulations made under section 18 of the Regulations, 2010 (Legal Notice Radiation Control Act (Chapter 243) of the Laws of 160 of 2010) Kenya provide for regulation on usage of radiation sources and also inspection of building facilities where radiation sources are used, stored or disposed. The Regulations also provide for various radiation signs. It is a requirement under the regulations that design plans of all buildings to be used for radiation-sources installation receive approval by the Board as being safe for the radiation protection of workers and the members of the public. These Regulations revoke the Structural Requirements and Inspection of Buildings Regulations of 1986. The legal Notice sets 23rd of September, 2010 as the date on which the Prevention of Organized Crimes Act (No. 6 of 2010) comes into force.
The Insurance (Amendment) Through this amendment, the Minister for Finance Regulations, 2010 (Legal Notice amended the Fifteenth Schedule to the Insurance Regulations to extend the period to 31st December, 154/2010) 2015 as the time the requirement that every insurer reinsures with the Kenya Reinsurance Corporation eighteen per cent of each of his reinsurance treaties in respect of general business placed in the international reinsurance market, shall cease to apply.
Supp. 73 8th October, 2010 Supp. 74
The Prevention of Organized Crimes Act-Commencement (Legal Notice 162/2010)
The Traffic (Amendment) Bill, 2010
If this Bill is enacted, persons will be able to exercise their freedom to individual taste and styles even in identification plates to their motor vehicles. The Bill seeks to amend Section 12 of the Traffic Act (Cap. 403) to enable the Registrar of Motor Vehicles to issue personalized identification plates to an applicant bearing the applicants name, initials or other prescribed features. An applicant for a personalized registration plate will however be required to pay an additional fee over and above that payable for ordinary registration. The Order establishes the Karatina University College as a constituent college of Moi University and as the successor to Moi University Chepkoilel Campus.
Supp. 75 15th October, 2010 Supp. 76
The Moi University College Order, 2010 (Legal Notice 163/2010)
T h e Re t i re m e n t B e n e f i t s (Occupational Retirement Benefits Schemes) (Amendment) Regulations, 2010 ( Legal Notice 165/2010)
Supp. 76
The Privileges and Immunities (The International Criminal Court) Order, 2010 (Legal Notice 170/2010)
The Amendment Regulations seem to echo the Retirement Benefits (Amendment) Bill which seeks to allow employees access to their full contributions upon leaving employment before the mandatory retirement age. These regulations replaced paragraph 5 of regulation 19 by allowing a member of a defined benefit a retirement scheme who leaves employment after three years of membership but before attaining the specified early retirement age the option of payment of not more than fifty per cent of his accrued benefits, or to his own contribution and fifty per cent of his employers contribution and the investment income accrued in respect of those contributions. To aid in the smooth flow of the operations of the International Criminal Court (ICC) process in Kenya, the Order afforded the ICC and its employees privileges and immunities as set out in Part I and Part III of the Fourth Schedule to the Privileges and Immunities Act
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(Cap. 179). The privileges include immunity from suits and legal processes, inviolability of premises occupied as offices and exemption from rates, taxes, or restrictions on goods directly imported by the ICC for its official use in Kenya.
Supp. 77
The Constitution of Kenya- Through legal Notice 172 of 2010, the Attorney General Public Prosecutions-Delegation delegated all powers vested in him by Article 157(6) of Powers) (a) of the Constitution (powers on institution and undertaking of criminal proceedings) to named State prosecutors. The International Crimes (Procedures for Obtaining Evidence) Rules, 2010 (Legal Notice (177/2010) Made under section 172 (b) of the International Crimes Act (No. 16 of 2008), the rules provide that the International Criminal Court may make a request to the Attorney-General for the taking of evidence or production of documents in relation to an investigation by the Prosecutor, or to any proceedings before the International Criminal Court. The Attorney General may then request the Chief Justice to designate a judge to take the evidence or preside over the production of any document if satisfied that provisions of section 77 of the Act are met. The Rules further provide for the establishment of a court registry, the rules on issuance of witness summons and the taking of evidence.
12th November, Supp. 79 2010
29th October, Supp. 80 2010 & 12th N o v e m b e r, 2010
The Commission for the Implementation of the Constitution Act
12th November, Supp. 81 2010
The HIV and AIDS Prevention and Control ActCommencement (Legal Notice 180/2010)
The Act provides for the operations of the Commission already established under the new Constitution to steer the constitutional implementation process. The Commission is to be composed of a chairperson and eight other members who are to be appointed according to procedure laid down in the Act and the Constitution. The Commission is supposed to amongst other things monitor, facilitate, and oversee the development of legislation and administrative framework required to implement the new Constitution. It is also supposed to liaise with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament relevant legislation. The HIV and AIDS Prevention and Control Act (No. 14 of 2006) though passed in the year 2006 came into force on 30th March, 2009 except for sections 14, 18, 22, 24 and 39 of the Act. Through this legal notice, these sections are set to commence on 1st December, 2010 save for section 39.
Section 14 of the Act provides that a person can only perform an HIV test in respect of another person only with their informed consent or with the consent of the parent or guardian incase of a child or a person incapable of giving consent such as persons with disabilities. Section 18 and 22 provide for confidentiality and disclosure of HIV results. Results of an HIV test can only be released to the tested person, or in the case of a child, to a parent or legal guardian of such child. Under section 22, HIV results can only be released to another person only with the written consent of the tested person or if that person has died, with the written consent of that persons partner, personal
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representative, administrator or executor or incases of a child, with the written consent of a parent or legal guardian of that child.
Supp. 82
The Weights and Measures (Amendment) Rules, 2010
The Rules replaced the eleventh schedule to the Weights and Measures rules, which are rules under the Weights and Measures Act (Cap. 513) by adjusting fees payable in respect of weights, measures and instruments examined, verified and stamped and also in respect to patterns of weighing and adjustment of weights and measures.
Section 24 of the Act places an obligation on a person who knows to be HIV Positive to take all reasonable measures and precautions to prevent the transmission of HIV to others and to disclose their status before sharing needles or having sexual contact. Failure to observe the provisions attracts a maximum sentence of seven years and/or a fine of five hundred thousand shillings.
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Kenya Law Reports The Law Society Of Kenya Justice Cup, 2010
Bench Bulletin
FOOTBALL MATTERS; TALENTED KENYA LAW REPORTS TEAM DOES IT AGAIN!
1 above: The National Council for Law Reportings football team (NCLR), 2 and 3 the Councils team in action. 4 The NCLR football team in celebration after a win.
The 2010 edition of the Law Society of Kenya Justice Cup which was held on the 17th of July at the Parklands Sports Club attracted a far bigger entry from various quarters than the previous similar events. A total of 36 teams took part in the tournament making it the most competitive of the tournaments so far held amongst members of the legal fraternity.
The Kenya Law Reports team, which was still riding high on the sterling performance it had exhibited at the inaugural Uwazi Football Tournament that had been held just two months earlier, having reached the semi-finals, went into the tournament in high spirits. The team, which was pooled alongside some of the perennial tournaments favourites, felled many a team, including this years pre-tournament favourites Rachier & Amollo Adavocates. At the group stage, the team whipped Amolo Gachoka Advocates and Rachier & Amolo Advocates 1 goal to nil each before walloping Mboya & Wangondu Advocates 5 goals to 2. It however drew nil-nil with Kairu & McCourt Advocate, John Mburu & Co Advocates, Raffman Dhanji & Virdee Advocates as well as Committee of Experts. Special recognition goes to our lead lady striker Miss. Siphira Gatimu who was a thorn in flesh of many teams defences. Her scoring skills confounded even professional referees who officiated the matches.
The team soldiered on, determined to lift the main cup until it was narrowly bundled out, albeit on inferior goal difference from other teams in the pool. It however emerged as the best losers in the group, earning itself a place in the plate category where it went up to the semi-finals. The Kenya Law Reports team is already making preparations for an even more successful participation in the 2011 edition of the tournament. Cornelius W. Lupao, Senior Law Reporter and KLR Football Team Coach
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Kenya Law Reports Feature Case Violation of Suspects Constitutional Right Not A Reason For Acquittal
Julius Kamau Mbugua v Republic [2010] KLR (www.kenyalaw.org) Court of Appeal at Nairobi EM Githinji, PN Waki & A Visram JJ A October 8, 2010 Reported by Michael Murungi
Bench Bulletin
In October, the Court of Appeal delivered a landmark judicial opinion on a question of great public importance over which there has been a divergence of interpretation in both the High Court and the Court of Appeal: whether a criminal suspect whose constitutional rights have been violated by a prolonged and unreasonable period of incarceration before his first arraignment in court would be entitled to an acquittal or a discharge regardless of the evidence against him.
The repealed Constitution provided in section 72(3) that a person who is arrested upon reasonable suspicion of having committed a criminal offence was to be brought to court as soon as it was reasonably possible to do so. Where the accused person was not brought to court within 24 hrs or within 14 days if his arrest related to an offence punishable by death (such as murder and robbery with violence) he was to be brought to court within fourteen days. Where a suspect is detained for a longer period, the section placed the burden on the prosecution to prove that he had been so detained for a reasonable and justifiable purpose. In a fifty-page judgment in which it has analyzed previous Kenyan case law and made a comparative analysis of international jurisprudence, the Court of Appeal has now stated that the breach of a right to personal liberty of a suspect by police before trial is merely a breach of a civil right, though constitutional in nature, which is beyond the statutory duty of a criminal court and which was by section 72(6) of the repealed Constitution expressly compensatable by damages . The breach of the right to personal liberty is not trial-related and it did not render the subsequent trial a nullity. If police breached the right, the suspect had the right to apply to the High Court for a writ of habeas corpus to secure his release . In contrast, the right to a trial within a reasonable time guaranteed by section 77 (2) was trialrelated. It was not the duty of a trial court or an appellate court dealing with an appeal from a trial court to go beyond the scope of the criminal trial and adjudicate on the violations of the right to personal liberty which happened before the criminal court assumed jurisdiction over the accused. The right protected by section 72 (3) (b) was the right to be taken to court as soon as reasonably practicable and not a right not to be taken to court after unreasonable delay.
Back in 2006 when in Albanus Mwasia Mutua vs. Republic [2006] KLR the Court of Appeal held that an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of the evidence which may be adduced in support of the charge, that decision had immediate ramifications on the criminal justice system the Court has how noted. The majority of appellants invariably raised the issue of unlawful detention. Initially many appellants had some measure of success and many appeals were allowed and appellants released on the ground that their constitutional rights had been violated. It was not before long that a sharp divergence of opinion arose on the interpretation of the law amongst the judges of the Court of Appeal and the High Court. The case at hand involved one Julius Mbugua who was arrested on November 7 2005 on the suspicion that he had murdered his wife, Milcah Wamanji. The offence was said to have been committed in September 2005 in Gatunyu Village of Thika District. On February 8 2006, which was about 107 days after his arrest, he was arraigned before the High Court for trial. At a stage during his trial, Mbugua filed a petition under section 84 of the now repealed Constitution seeking a declaration that his detention for the period of 107 days and his subsequent arraignment on the criminal charge was a gross violation of his constitutional rights and that on that basis, he should be discharged and the state forever restrained from arresting or prosecuting him. Ultimately, the petition was dismissed on the main ground that it was a mere afterthought and it had been brought too late in the trial to afford the prosecution adequate time to rebut it. Mbugua had filed an appeal against the dismissal of his petition.
From its consideration of Commonwealth and international jurisprudence on the right to be tried within a reasonable time, the Court of Appeal made several general observations. First, although the right to a trial within a reasonable time is part of international human rights law, the right is not absolute as it must be balanced with equally fundamental societal interest in trying suspected criminals. The general approach to the determination whether the right has been violated is a judicial determination whereby the court is obliged to consider all the relevant factors within the context of the whole proceedings. What amounts to unreasonable incarceration depends on the particular circumstances of each case and in the context of domestic legal system and the prevailing economic, social and cultural conditions. Although an applicant has the ultimate legal burden throughout to prove a violation, the evidentiary burden may shift depending on the circumstances of the case. The standard of proof of an unconstitutional delay is a high one and a relatively high threshold has to be crossed before the delay can be categorized as unreasonable. The violation of the right should be
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Kenya Law Reports Feature Case
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raised at the earliest possible stage in the proceedings to enable the court to give an effective remedy otherwise the right may be defeated by the doctrine of waiver where applicable. The right is to trial without undue delay. It is not a right not to be tried after undue delay (except in Scotland) and it is not designed to avoid trials on the merits. The remedy for the violation of the right varies from jurisdiction to jurisdiction but in most of the Commonwealth countries with Bill of Rights and a Constitution based on the Westminster model, courts can grant any relief they consider appropriate in the circumstances of the case. In some jurisdictions, where the applicant is already convicted the quashing of a conviction is not considered a normal remedy and the court could take into account the fact that the applicant has been proved guilty of a crime, the seriousness and prevalence of the crime and design an appropriate remedy without unleashing a dangerous criminal to the society. The Court further noted that even if unlawful pre-arraingment incarceration is shown to have a direct bearing on the subsequent trial, nevertheless, to acquit or discharge the accused person would be a disproportionate, inappropriate and draconian remedy seeing that the public security would be compromised. If by the time an accused person makes an application to the court the right has already been breached, the only appropriate remedy under Section 84(1) of the repealed Constituition was an order for compensation for such breach. The Court agreed with Justice A. Emukule in Republic v David Geoffrey Gitonga that a breach of section 72(3)(b) entitled the aggrieved person to monetary compensation only. Regarding the procedure applied in the hearing of Mbuguas constitutional petition in the High Court, the Court of Appeal observed that it had been unprocedural for the Court to hear the petition firstly as part of the trial proceedings and secondly in the presence of assessors who had no power to give opinions in an application of that nature. The appeal was dismissed with no order as to costs.
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Kenya Law Reports From the Courts Court of Appeal Jurisdiction of the Court of Appeal over appeals from election courts
Mwakwere Chirau Ali v Ayub Juma Mwakesi and Another Civil Appeal No. 38 of 2010 Bosire, Okubasu & Visram, JJ.A. Court of Appeal at Nairobi June 4, 2010
Bench Bulletin
Reported by Njeri Githanga Case History (Appeal from the judgment and certificate of the High Court of Kenya at Mombasa (Ibrahim Mohamed, J.) dated 5th February, 2010 in Election Petition No. 1 of 2008)
Court structure - Court of Appeal-jurisdiction-appeals from the election court-jurisdiction of the Court of Appeal to hear appeals from an Election Court- preliminary objection to the effect that the Court had no jurisdiction to hear appeals arising from the High Court on the question of validity of an election of a Member of Parliament- establishment of the Court of Appeal by the Constitution under Section 64(1)- procedure to be adopted by the election court with regard to appeals-whether the National Assembly and Presidential Elections Act donated the power to hear appeals from an Election Court to the Court of Appeal- Constitution of Kenya Section 64(1)- National Assembly and Presidential Elections Act (Cap. 7) section 2 and 23. The appeal arose from the election court where the appellants election as a Member of Parliament had been declared to be null and void. Before the hearing of the appeal commenced, the respondent raised a preliminary objection to the effect that the Court had no jurisdiction to hear appeals arising from the High Court on the question of validity of an election of a Member of Parliament.
The Hon. Mr. Justice A. Visram
In his submission, the respondent maintained that the decision of the High Court was final as there was no decree from the High Court but a certificate. He went on to argue that election petitions were proceedings of a special nature and that the right of appeal could only emanate from section 44 of the Constitution.
On the other hand, in his submission the appellant stated that the right of appeal to the Court of Appeal was statutory and hence the appeal lay to the Court by virtue of the National Assembly and Presidential Elections Act (Cap. 7). It was further submitted that as that Act had never been declared to be ultra vires the Constitution then, it followed that the Court had jurisdiction to hear appeals from the Election Petition Courts. Held: 1. Section 64(1) of the Constitution provided that There shall be a Court of Appeal which shall be a superior court of record and which shall have such jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law. In view of the foregoing, the right of appeal to the Court emanated from the Constitution. 2. The relevant legislation governing the hearing and determination of election petitions was National Assembly and Presidential Elections Act (Cap. 7). Section 2 of that Act defined election Court as the High Court in the exercise of the jurisdiction conferred upon it by section 44(1) of the Constitution. 3. Section 23 of the Act set out the procedure to be adopted by the election court to the effect that that an appeal lay to the Court of Appeal from any decision of an election court, whether the decision was interlocutory or final. It was immaterial whether the decision gave rise to an order, decree, or certificate. The law had donated the power to hear appeals from an election Court. Preliminary objection dismissed.
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Kenya Law Reports From the Courts Court of Appeal
Bench Bulletin
Jurisdiction of the Court of Appeal over appeals from the High Court in certain succession matters
Francis Gachoki Murage v Juliana Wainoi Kinyua and another Civil Appeal (Application) No. 139 of 2009 Omolo, D.K.S. Aganyanya & Visram, JJ.A Court of Appeal at Nyeri June 24, 2010 Reported By Njeri Githanga
Case History (Being an Appeal from the Judgment of the High Court of Kenya at Embu (Khaminwa, J) Dated 16th January, 2008 in H.C. C. A. No. 46 of 2005) Civil Practice and Procedure - succession - second appeal against a decree passed by a subordinate court- jurisdiction of the court- whether the court had the jurisdiction to determine a second appeal on a succession matter- Constitution of Kenya, section 64 (1) - Appellate Jurisdiction Act (Cap 9), Section 3 (1). Statutes - interpretation of statutes - appeal in succession matters-section 50 of the Law of Succession Act vis a vis section 66 of the Civil Procedure Act section 66 providing for appeals to the Court of Appeal-where section 50 provided that an appeal to the High Court from the orders or decrees of a magistrates court was final- whether section 66 of the Civil Procedure Act (Cap 21) could over-ride the specific provisions of section 50 (1) of Cap (160)-Law of Succession Act (Cap 160) section 50- Civil Procedure Act (Cap 21) section 66.
The Hon. Mr. Justice D. K. S. Aganyanya
The 2nd respondent lodged a notice of motion under Rule 80 of the Court of Appeal Rules praying for the appeal to be struck out on the ground that under section 50 (1) of the Law of Succession Act, no appeal could lie against the decree of High Court in its appellate jurisdiction in succession matters emanating from the lower court. The appellant opposed the motion to strike out the appeal on the ground that the High Courts order was a decree and therefore the appellant was entitled to appeal against it under section 66 of the Civil Procedure Act. Held: 1. The matter dealt with by the two courts below was determined under and in accordance with the Law of Succession Act. Section 50 (1) of that Act specifically provided, that an appeal to the High Court from the orders or decrees of a magistrates court was final. 2. There was no valid legal basis for the contention that section 66 of the Civil Procedure Act was superior to and had to over-ride the Law of Succession Act. Under section 64 (1) of the Constitution, the Court of Appeal had such jurisdiction and powers in relation to appeals from the High Court as was conferred on it by law. Section 50 (1) of the Law of Succession Act specifically deprived the Court jurisdiction to hear appeals under that section. 3. Section 3 (1) of the Appellate Jurisdiction Act, (Cap 9) provided that The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court in cases in which an appeal lies to the Court of Appeal under any law. Accordingly, no appeal lay to the Court under section 50 (1) of the Law of Succession Act and the section 66 of the Civil Procedure Act could not over-ride the specific provisions of section 50 (1) of the Law of Succession Act. Application allowed, appeal struck out
The appellant sought to challenge a judgment dismissing an appeal which he had been lodged in the High Court from a decree passed by a Principal Magistrate Court. The dispute subject of the appeal fell within the Law of Succession Act, (Cap 160).
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Reported by Nelson Tunoi Case History (Appeal from the ruling and order of the High Court of Kenya at Nairobi (Ransley, J.) dated 26th September, 2005 in H.C.C.C. No. 565 of 2004)
Joseph Nathaniel Kipruto arap Ngok v Attorney General & another [2010] eKLR Civil Appeal No. 326 of 2005 Court of Appeal at Nairobi S. E. O. Bosire, E. M. Githinji & J. G. Nyamu, JJA July 2, 2010
Attorney-Generals discretion to appear on behalf of a public body or officer
Civil Practice and Procedure setting aside - appeal against exercise of judicial discretion to set aside judgment entered in default of appearance and defence - principles governing the exercise of the courts discretion to set aside a judgment obtained exparte - principles on which an appellate court can interfere with the exercise of judicial discretion by a Judge. Civil Practice and Procedure legal representation where the Attorney General had entered appearance and filed defence on behalf of the second respondent duty of parties to a suit to file a record of change of advocates whether the Attorney General had unquestionable right to represent the second respondent in civil proceedings - Government Proceedings Act (cap 40) section 34; Civil Procedure Rules (cap 21 Sub Leg) Orders III rule 9A, VI. The appellant lodged an appeal against the exercise of judicial discretion to set aside judgment entered in default of appearance and defence and also against the consequential order giving IPC leave to enter appearance and file a defence.
The appellant had filed a suit against the respondents on the basis that the two had wrongfully and fraudulently terminated his contract of employment as Executive Chairman of Investment Promotion Centre (IPC), a State Corporation established under the Investment Promotion Centre (Repealed) Act (Cap 485, Laws of Kenya). The AG was sued on behalf of the Permanent Secretary (PS), Ministry of Trade & Industry as he was the one who allegedly terminated the appellants services. The appellant thus filed a suit seeking a declaration that the PSs purported termination of his services was unlawful, illegal and unprocedural and sought both special and general damages. Upon service of the summons to enter appearance together with plaint on IPC, the Managing Director of IPC requested the AG to represent it vide a letter dated June 30, 2004. Thereafter, the AG prepared a joint defence and counter-claim of himself as first respondent and also IPC (second respondent). These were verified by the affidavit of the Managing Director of IPC. The AG then entered appearance on behalf of the two respondents and also filed a joint defence and counter-claim on behalf of the 1st and 2nd respondents.
The Hon. Mr. Justice S. E. O. Bosire
The appellant subsequently filed an application for orders that the defence and counter-claim be struck out and for leave to enter judgment for non appearance and default in filling defence by the IPC. The application was mainly based on the ground that the memorandum of appearance and the defence filed by the AG on behalf of IPC was an abuse of the process of the court as the AG had no locus standi to file pleadings on behalf of IPC since IPC was a body corporate with power to sue and be sued in its name. The AG opposed the application contending, among other things, that IPC was legally and properly being represented by the AG. In allowing the application, the High Court (Ojwang J.) held that the AG had no legal standing to enter appearance and file a defence and counter-claim on behalf of IPC and that the appearance and defence and counter-claim were thus a nullity with the result that IPC must be taken as not having filed a defence and counter-claim. The High court thereupon struck out the appearance and the defence and counter-claim and gave leave for entry of judgment against IPC for non-appearance and for default of defence and as a result entered judgment against IPC.
IPC then instructed a firm of advocates to enter appearance on behalf of it and the firm filed an application seeking to set aside the exparte judgment entered against IPC under the Civil Procedures Rules (cap 21 sub leg). The application was ultimately heard and allowed by the High Court (Ransley J.) in September, 2005 thereby precipitating the instant appeal. During the hearing of the appeal, counsel for the appellant contended that the judge lacked jurisdiction to set aside the judgment as the judgment was not an exparte judgment in the first place. He further argued that the judge had
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misdirected himself in both law and in fact in failing to appreciate that there was inordinate delay from the time IPC was served with summons to enter appearance and the time it applied for setting aside of the judgment and that the Judge had erred in law in allowing the firm of advocates to represent IPC when the firm was not properly on record as it had not sought leave of the court to appear for IPC.
Held: 1. Under the Order III rule 9A of the Civil Procedure Rules, a change of advocate after the judgment has been passed should not be effected without an order of the court upon an application with notice to the advocate already on record. However this only applied to a situation where a party who had previously engaged an advocate in a suit intended either to act in person or had engaged another advocate after the court has passed judgment, which was different from the present case as IPC had not engaged AG as counsel but had merely requested the AG to represent it. Therefore there was in essence no change of advocates and hence no leave of court was required. 2. The superior courts ruling (Ojwang J.) that the AGs documents were a nullity as the AG had no locus standi to represent IPC meant that IPC had not been represented by AG ab initio hence, no advocate had been on record. Therefore there was in essence no change of advocates and hence no leave of court was required. 3. The decision of the superior court that the AG had no locus standi to represent IPC was solely based on the narrow ground that IPC was a body corporate with its own power to sue and be sued in its own name. There was however no restriction on the right of representation. The superior court had thus confused the power of the Attorney General to institute civil proceedings and the discretion of the Attorney General to appear as a counsel for a party in civil proceeding. 4. The Attorney General has discretion to appear as counsel for any public officer (even though the officer is sued in a private capacity) or for any public body. The appellant had been appointed and retired by the Government (through the relevant Permanent Secretaries) and the role of IPC was thus peripheral. The court below had erred in law in excluding the Attorney General from representing IPC and in striking out the appearance, defence and counter-claim filed on its behalf by AG. 5. The superior court (Ransley J.) had exercised its discretion judicially, in view of the fact that had the superior court declined to set aside the judgment, IPC would have suffered great injustice as it would have been condemned unheard for no fault of its own. Appeal dismissed.
Overriding objective Hearing appeals on merit versus striking out on a technicality

Joseph Kiangoi v Wachira Waruru and 2 others Civil Appeal (Application) No. 130 of 2008 Onyango Otieno, Aganyanya & Nyamu, JJ.A. Court of Appeal at Nairobi July 9, 2010
Reported by Njeri Githanga Case History (An application to strike out the Notice of Appeal and record of Appeal being an appeal from the judgment and decree of the high Court of Kenya at Nairobi (Osiemo, J.) dated 21st September, 2007 in H.C.C.C. No. 701 of 2001)
Civil Practice and Procedure - striking out-striking out record of appeal for lack of serviceapplication on the ground that the appellants/respondents had failed to serve the notice of appeal on the 3rd defendant in the High Court; a person directly affected by the appeal-test to be applied to determine a directly affected party-where the 3rd defendant was out of courts jurisdiction and attempts to serve her had been futile- overriding objective- interpretation of the overriding objective by the court where in the circumstances, justice was to be found in sustaining the appeal instead of striking it out on a technicality-whether the application could be allowed- Court of Appeal Rules, rule 76(1).
The application was brought under Rules 80 and 42(1) of the Court of Appeal Rules and sought to strike out the 1st and 2nd respondents notice and the record of appeal. The ground of the The Hon. Mr. Justice J. G. Nyamu application was that the respondents/applicants were in breach of rule 76(1) of the Court of Appeal Rules which required an intended appellant to serve the notice of appeal to all persons directly affected by the appeal. It was alleged that the respondents had failed to serve the notice of appeal on the 3rd
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defendant in the High Court being a person directly affected by the appeal.
Bench Bulletin
The superior court had delivered a judgment in favour of the applicant in a defamation suit. Aggrieved by the said judgment, the respondent filed a notice of appeal which it failed to serve on the 3rd defendant in the suit in the superior court. It was submitted that, because the respondents had not served the hearing notice as required under rule 76 and had also not brought themselves under the proviso to the rule by seeking dispensation as stipulated, the Court had no jurisdiction and that the omission was fatal to both the Notice and the Record of Appeal.
Held: 1. The phrase directly affected by the appeal under Rule 76(1) of the Court of Appeal Rules did not have a technical meaning. It was a question of fact whether a party would or would not be affected by the outcome of an appeal. The test had to be whether if the appeal was to succeed, the result would adversely affect that party. 2. Applying the test to the facts in the application in view of the fact that the 3rd defendant did not have any representation at the time the judgment was obtained and did not also give evidence meant that she would not be directly affected by the outcome of the appeal. The 3rd defendant had migrated from Kenya and the respondents had, though unsuccessfully tried to bring themselves within the proviso to rule 76 of the Courts rules. 3. The unsuccessful attempt by the respondents to bring themselves within the proviso to rule 76(1) could be cured by taking a broad view of justice as mandated by the overriding objective principle. In the circumstances, justice was to be found in sustaining the appeal for it to be heard on merit instead of striking it out on a technicality. 4. The Courts had to lean more towards sustaining appeals rather than striking them out as far as was practicable and fair. As a tool of justice, the overriding objective principle was both procedural and substantive. In the case, the substantive aspect of sustaining the appeal had to, in the interest of justice; override the procedural rule requiring the striking out of the notice of appeal and the record just because the respondents failed to seek restoration of the application for dispensation in circumstances which indicated that the 3rd defendant was outside the Courts jurisdiction. Allowing the application would in the special circumstances of the case, act unjustly and the Court would fail to give effect to the overriding objective. Application dismissed
Kenya Anti-Corruption Commission v First Mercantile Securities Corporation Civil Appeal No. 194 of 2008 R S C Omolo,S E O Bosire & P N Waki JJ A. Court of Appeal, at Nairobi July 16, 2010. Kenya Anti Corruption Commission - legitimacy of powers conferred upon the Kenya Anti Corruption Commission to seek assistance from foreign authorities in foreign jurisdictions in execution of its mandate- Anti-Corruption and Economic Crimes Act, 2003, section 12(3). This was an appeal against the judgement of the superior court (Lesiit J) barring the appellant from carrying out investigations into Anglo-Leasing related scandals in foreign jurisdictions. The respondent had moved to court to seek to bar the appellant from carrying out such investigations after the appellant had allegedly sought Mutual Legal Assistance from the Swiss authorities to carry out investigations into transactions related to the Anglo Leasing Contracts. After an application by the respondent, the superior court had ruled that the appellant, the Kenya Anti Corruption Commission, in the letter of Request for the Mutual Legal Assistance had breached the Municipal Law; that it was requesting a foreign country to carry out functions and exercise powers which were not donated to it under the AntiCorruption and Economic Crimes Act, 2003; that it was in breach of the Act in that it purported it had power and duty to perform functions which either it could not do under the Act and or which it could only perform in a stipulated laid down procedure without or with judicial enforcement; that the Commission was seeking seizure of documentary evidence and of Reported by C W Lupao.
Power of KACC to seek mutual legal assistance from foreign states
The Hon. Mr. Justice R.S.C. Omolo
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equipment and freezing of accounts, through means that were unlawful in Kenya, which, according to the court was not permitted. Upon the superior courts ruling, the appellant filed this appeal contending among other things; that the learned Judge of the Superior Court erred in law in failing to appreciate the powers conferred on the Appellant by the Anti-Corruption and Economic Crimes Act, 2003; that the Judge misdirected herself in the interpretation of the powers conferred by section 12 (3) and 23 (1) of the Act ; that the Judge erred in law in failing to find that the appellant was empowered to conduct its investigations with the co-operation of agencies outside Kenya and to make such request for Mutual Legal Assistance as it had in the circumstances made and lastly, that the learned Judge erred in law in restraining the appellant from performing its statutory mandate.
Held: 1. It was the sovereign Parliament of Kenya which gave to the appellant power to work in co-operation with any foreign government. So, in section 12 (3) of the Act, the Parliament of Kenya had conferred upon the appellant the power to work or act together or assist and be assisted by other foreign governments and if the appellant was carrying out an investigation into corruption or economic crime, it was at liberty to work or act together and to be assisted by any foreign government, international or regional organization. It logically followed that if the appellant wished to call upon the assistance of a foreign government, it had to ask for that assistance. Whether such assistance was to be called Mutual Legal Assistance or whatever name one could give it the truth of the matter was that the Parliament of Kenya gave the appellant authority to seek such assistance. 2. The mere making of the request did not mean that the request would be automatically given; it could well be refused. But that the appellant had the right to make such request was specifically provided for under section 12 (3) of the Act which created it. 3. The request was, if accepted, to be carried out in accordance with the Swiss Law. If that law allowed Swiss Authorities to seize documents and equipment, to freeze bank accounts etc, without any need to seek court orders there would be nothing wrong with that. If the Swiss law required them to obtain court orders before doing any of those things, it would be the duty of the Swiss Authorities to do so. The appellant could not have told the Swiss Authorities to provide their assistance and in doing so, require the Swiss Authorities comply with the Law of Kenya. That would be insulting to a foreign government. 4. The appellant was a statutory body under Kenyan Law and it could only do that which its creating statute empowered it to do. Appeal allowed.
Rules of natural justice and employment contracts

Kenya Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 R S C Omolo,P N Waki & J G Nyamu JJ A. Court of Appeal, at Nairobi July 16, 2010.
Reported by C W Lupao. Case History (Being an appeal from the judgment and decree of the High Court Kenya at Nairobi (Ojwang, J.) dated 22nd September, 2008 in H.C.C.C. No. 1139 of 2002)
Contract - terms of contract of service-where terms of contract of service prescribe how disciplinary action against an employee under the terms should be disciplined-employee alleging that his fundamental rights were breached during a disciplinary action-whether a court can import and consider rules of natural justice in adjudicating on a dispute involving a contract whose terms did not contain matters on rules of natural justice. Contract - termination of contract-termination of contract of service where terms of the contract do not specify duration of notice before the contract should be terminated-need for a reasonable notice to be given-what constitutes reasonable notice. Contract - termination of contract of service-whether a party to a contact of service need necessarily give any reason for termination of the contract as against the other party. Tort - tort of misfeasance- tort of misfeasance only capable of being committed by a public officer 41
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and not a public body as an entity. Damages - exemplary damages- circumstances under which exemplary damages are awarded in tort as against a public servant. Civil Practice and Procedure - damages-calculation of damages-calculation of damages being a judicial functions as opposed to being a ministerial act -whether a court can delegate calculation of damages to a different person such as the Deputy Registrar. This was an appeal arising from the judgment and decree of the superior court (Ojwang J) in which the learned judge found for the respondent in an action for damages for alleged breach of contract of service by the respondent. The respondent, who had been engaged by the appellant as Senior Research Officer, apparently on permanent and pensionable terms, had been dismissed from employment for alleged negligence of duty that led to evasion of duty on some goods by third parties. Following the said dismissal, the respondent successfully moved the superior court for damages on account that the appellant had terminated his employment yet the contract of employment was regulated by the appellants Code of Conduct and was not to be terminated save in accordance with the said Code. The Code allegedly had an implied term of employment that specified that unless the respondent was dismissed for misconduct or gross misconduct or compulsorily retired under the Code of Conduct, he would continue until he attained the age of 55 years. In the alternative, the respondent pleaded that it was a further express term of the contract of employment that his employment would continue until determined by a six month notice in writing on either side or in lieu thereof, a payment of six months salary and alternatively, it was an implied term that the respondents employment would be determined only on service of a reasonable notice which in the circumstances meant six months or three months. On this account, the superior court awarded exemplary damages in the sum of Kshs.1million but gave directions that the Deputy Registrar of the High Court calculates the other heads of damages resulting in to the respondent being awarded of Kshs.28,883,712.00 as damages hence the appeal.
The main grounds of appeal were; that the Judge erred in directing that the quantum of damages be assessed by the Deputy Registrar of the superior court yet he did not have the powers; that the Judge erred in directing the appellant to pay to the respondent salary and leave allowance for a period of seven years and six months which period was not reasonable and was infact manifestly excessive in the circumstances; that the Judge erred in directing the appellant to pay to the respondent salary and leave allowance for a period of seven years and six months which period was not reasonable and was infact manifestly excessive in the circumstances ; that the Judge made a fundamental error of law in holding that the applicant committed an actionable wrong known as misfeasance in public office when the respondent did not prove or establish the ingredients of that tort to the degree required by law.
The central issues for determination were; whether a contract whose terms were an permanent and pensionable could be terminated by the giving of a reasonable notice, whether in the circumstances, the contract was properly terminated and if so, the legal consequences of such termination; if the contract had been wrongly terminated, what were the legal consequences of such termination; whether the superior court was justified in law in awarding general damages in respect of a contract of employment in lieu of the award of salary for the period of notice; whether the superior court was justified in law in awarding exemplary damages; whether the superior court was correct in law in awarding only one head of damages, namely exemplary damages in the sum of kshs.1 million and directing the calculation of the other heads to be done by the Deputy Registrar and the effect of the courts directions; and lastly whether the superior court was justified in holding that in the circumstances, the appellant had committed actionable wrong known as misfeasance in public office? Held: 1. It was a serious misdirection or misapprehension of the applicable law and of the factual position on the part of the Court to import into the contract both the rules of natural justice as it understood them including incorporating into the contract of employment the provisions of section 77 of the Constitution. It was not the business or function of a court of law to rewrite a contract for the parties by prescribing how the organs entrusted with disciplinary matters in a contract were to operate or to introduce terms and conditions extraneous to the contract. It was for the parties to provide in the contract how such organs should operate and how the hearings, if any, were to be conducted. A court of law could not import into a written contract of service rules of natural justice and the Constitutional provisions relating to the right of hearing unless parties themselves specifically stated so in their contract. 2. Either party was allowed to terminate the contract by giving the stipulated notice or a reasonable notice if not specifically stipulated in the contract or alternatively, tender equivalent salary in lieu of notice. This applied whether or not the contract was permanent or pensionable and the right was vested in both the employee and the employer. 3. A contracting party did not have to rely on misconduct in order to terminate a contract of service and a party could
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terminate such a contract without giving any reason! If the reasons for dismissal were wrongful the measure of damages should have been in respect of the period of notice specified in the contract, and if not specified a reasonable notice. 4. Application of the tort of misfeasance in public office just because the appellant was a parastatal had no basis in fact or law because whatever powers the appellant was exercising in dismissing the respondent stemmed from a contract of service between it and its employee and did not spring from the statutory power conferred on the appellant by the statute creating it, the Kenya Revenue Authority Act. For the purposes of entering into contract of employment a parastatal was just like any other employer and there could not be any legal basis for creating a distinction between contracts of service entered into by private companies with their employees and those entered into between parastatals and their employees. 5. Even if the tort of misfeasance in public office was established on the basis of the facts in the matter, it would not lie against the appellant as a public body. It would only lie against a public officer of the appellant, whereas, in this matter the suit had been filed against the appellant. For the tort of misfeasance in public office to be proved it had to be shown at least that a public officer had done in bad faith or possibly, without reasonable cause, an act in the exercise or purported exercise of some power or authority with which he was clothed by virtue of the office he held. 6.The superior courts findings that the appellant was exercising statutory power was a serious misdirection in law which in turn led to the courts erroneous findings that in the circumstances, the tort of misfeasance in public office had been committed by the appellant. The appellant as an employer in finally making the decision to dismiss the respondent was not exercising its statutory power under the Act creating it but rather exercising disciplinary power under a contract of service 7. The termination was based on the contract between the parties and its invocation by the appellant to terminate or dismiss the respondent could not constitute an actionable tort just because the appellant happened to be a creature of statute. 8. On the basis of the evidence, the appellants conduct could not be said to be oppressive, arbitrary or unconstitutional, hence, the superior courts award of exemplary damages was erroneous. The two categories when exemplary damages are usually awarded are in the case of oppressive, arbitrary or unconstitutional action by the servants of the government and in the case where the defendants conduct had been calculated to make a profit for himself which might well exceed the compensation payable to the plaintiff. 9. The superior courts delegation for calculation of some heads of damages was erroneous since this act amounted to converting a judicial function into a ministerial function. Both the award and the level or quantum of damages was a judicial function which the superior court could not rightfully delegate to a Deputy Registrar. There is no provision in law for delegating any judicial functions to the Deputy Registrar. Any such delegation would be a nullity. A judgment must be complete and conclusive when pronounced and therefore it could not be left to the Deputy Registrar to perfect it. Assessment of damages was not a ministerial act as envisaged by Order 48 of the Civil Procedure Rules. Appeal Allowed. Extension of time: Inordinate delay
Attorney General v Hon Prof George Saitoti Civil Application No. Nai 75 of 2007 Alnashir Visram JA Court of Appeal at Nairobi Reported by C W Lupao. Case History (Application for extension of time to file a record of appeal in an intended appeal from the judgment of the High Court of Kenya at Nairobi (Nyamu, Wendoh & Emukule, JJ.) dated 31st July, 2006 in Misc. Civil Application No. 102 of 2006. July 29, 2010
Civil Practice and Procedure- application-application for extension of time to file an intended appeal-applicant making the application 4 years after the decision being appealed against was delivered-effect of the inordinate delay on the application-factors considered by court before grant of application for stay pending appeal-Court of Appeal Rules, rule4. This was an application for extension of time to file an appeal from the judgment and order of the superior. The judgment in the case before the superior court was delivered on 31st July, 2006 and a notice of appeal filed within time on 10th August, 2006. The applicant was subsequently provided with a copy of the typed record of proceedings on 9th February, 2007, the last day for filing the record of appeal being 10th April, 2007. However, on 5th April, 2007 the applicant filed an application for extension of time seeking 43
The Hon. Mr. Justice A. Visram
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Held: 1.The order sought by the applicant, given the manner in which it was drafted, and based on submissions made before the court, appeared to be for an indefinite period of time. 2.The courts discretion as given by rule 4 of the Court of Appeal Rules to extend time had to be exercised judiciously. 3.The decision whether or not to extend the time for appealing was essentially discretionary. The matters which the court took into account in deciding whether to grant an extension of time were first the length of the delay. Secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application was granted and fourthly the degree of prejudice to the respondent if the application were granted. 4. Any further delay in this litigation was highly and unfairly prejudicial to the respondent who had once had to step down from his ministerial duties, and who continued to face the prospect of further embarrassment, inconvenience, loss and injury to his character and reputation, unless the matter came to an end. He had waited four years from the date of judgment in the superior court and was entitled to bring the matter to a closure. 5.The delay to seek extension to file appeal after 4 years was inordinate and unacceptable. Application dismissed. Procurement: Stay of a High Court decision on a Judicial Review of a decision of the Appeals Review Board R v Public Procurement Administrative Review Board & 3 Others Civil Application No Nai 63 of 2010 (UR 43/2010) Court of Appeal at Nairobi Githinji,Aganyanya &Visram JJ A July 30, 2010 Reported by Emma Kinya
an order that his time to lodge the Record of Appeal against the superior courts judgment and decision be extended by such period and upon such terms as the Court would deem appropriate. Counsel for the respondent submitted that it would be unjust to grant the applicant an indefinite extension of time, that the delay therein was inordinate and inexcusable, and that the same was highly prejudicial of the respondent who had to step down as Minister in the Government of Kenya, and who faced similar prospect, had the matter been allowed to drag on indefinitely.
Case History An appeal from the judgment of the High Court of Kenya at Nairobi (Wendoh, J.) dated 18th March, 2010 in H C C C No.53 of 2010
Civil practice and Procedure stay application for orders of certiorari and mandamus made by High Court to be stayed pending the determination of intended appeal allegation that High Court only had jurisdiction to grant orders of certiorari, prohibition and mandamus and not a nullification contract application defective where the application sought for stay of order rather than stay of execution overriding objective of the Appellate jurisdiction Act whether the court could treat the application as an application for stay of execution whether the High Court had jurisdiction to declare the contract null and void Rule 5 (2) (b) Court of Appeal Rules and sections 3A, 3B of the Appellate Jurisdiction Act and section 9 (5) Law Reform Act The applicants applied for orders of certiorari and mandamus made by the High Court to be stayed pending the determination of the intended appeal and further, that the Public Procurement Administrative Review Board be barred from hearing a request for review pending the hearing and determination of the intended appeal.
The Hon. Mr. Justice D. K. S. Aganyanya
Zhongman Petroleum & Natural Gas Limited was aggrieved by the applicants decision and subsequently presented a
The application was based on a dispute between the applicant, Kenya Electricity Generating Company Limited, who was a procuring entity and the 1st interested party, Zhongman Petroleum 7 Natural Gas Group Limited, who was the unsuccessful tenderer. The applicant had invited tenders for the supply of Electrical Land Rigs and associated equipment for drilling wells for geothermal power generation. The tender was awarded to Shengli oil Fields Highland Petroleum Equipment Limited.
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request for review to the respondent alleging breaches of various provisions of the Public Procurement and Disposal Act and the Regulations. However, the applicant filed a Notice of Preliminary Objection to the hearing of the review on the ground that the Review Board had no jurisdiction to entertain the request for review since the request was allegedly made after the stipulated period of 14 days of notification to the unsuccessful tenderer. The Review Board upheld the Preliminary Objection and dismissed the request for review. Zhongman Limited aggrieved by the decision of the Review Board, filed a Judicial Review application seeking an order of certiorari to quash the decision of the Review Board and an order of Mandamus to compel the Review Board to hear the Request for Review. The High Court allowed the Judicial Review application and not only granted the orders of certiorari and mandamus but also held that the contract between the applicant and the 2nd Interested Party was illegal and a nullity ab initio. Subsequently, the appellant appealed against the order that sought the order of certiorari and mandamus to be stayed and further filed an application seeking an order that the orders of certiorari and mandamus be stayed. The issues before court questioned the legality of the Judicial Review proceedings which had resulted in the nullification of the contract and in the grant of the order of mandamus, whether High Court had jurisdiction to nullify the contract and to grant the order of mandamus and whether the Review Board had jurisdiction to hear the request for Review.
Held: 1.The application was defective for two reasons: Firstly, Rule 5 (2)(b) of the Court of Appeal Rules did not give court jurisdiction to grant a general stay order as sought in the application, rather, it gave the court jurisdiction to grant three specific orders, namely, to order a stay of execution, grant an injunction or a stay of any further proceedings. The applicant should have sought a stay of execution. 2.An order of certiorari by its nature could not be stayed pending appeal by interlocutory proceedings. It could only be set aside in the appeal itself and therefore, the quashing of the decision of the High Court by an order of certiorari could not be suspended pending appeal and the application was incompetent to that extent. 3.The defect in the application which sought a stay of order of mandamus rather than a stay of execution of the order of mandamus was minor and in accordance with the overriding objective of the Appellate Jurisdiction Act, court treated the application as an application for stay of execution of the order of mandamus. 4.The High Court construed section 100(4) of the Public Procurement and Disposal Act (Cap 3) which prescribed a limitation period of 30 days as not being a fetter to the unlimited jurisdiction of the High Court conferred by section 60 of the Constitution of Kenya and ruled that it was seized of the matter until it had rendered a decision. 5.The High Court declared the contract illegal, null and void on the ground that it was entered into before Zhongman Limited had exhausted its right to challenge the decision of the Review Board. 6.An appeal lay to the Court of Appeal as of right from the impugned decision of the High Court. The issue could be raised at the hearing of the appeal for final determination. 7.The appeal would be rendered nugatory as the substratum of the appeal would not have been subsisting unless the Review proceedings before the Review Board were stayed. In addition, the appeal had raised important jurisdictional issues in the procurement process. The procurement jurisprudence was evolving and it was in the public interest that the issues raised in the appeal should have been determined by the court of the last resort. 8.The 1st Interested Party, Zhongman would not have suffered prejudice if the application was allowed because the effect of the order of stay was not to reverse the order of certiorari or mandamus. It was not correct that the contract would be performed if the order of stay was not granted. The order of stay would only relate to the proceedings before the Review Board. Application allowed. Legality of imposing a mandatory death sentence for murder Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008 Court of Appeal at Mombasa R. S. C. Omolo, P. N. Waki & J. W. Onyango Otieno, JJA July 30, 2010 Reported by Emma Kinya
Case History: (An appeal from a judgment of the High Court of Kenya at Mombasa (Sergon, J.) dated 29th February, 2008 in H C CR C No 55 of 2004) 45
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Constitutional Law -constitutional right-right to life-enjoyment of right to life-where a sentencing regime imposes a mandatory sentence of death on all proven murder cases-whether an accused person sentenced under such a regime should be given a chance for mitigation on the basis of his criminal culpability. Sentence-death sentence -inconsistency of section 204 of the Penal Code (cap 63) Laws of Kenya vis--vis Constitutional Provision for Protection against Inhuman or Degrading Punishment or Treatment-whether a conviction for murder should necessarily attract death sentence. Jurisdiction -jurisdiction of the Court of Appeal to adjudicate on alleged contravention of ones constitutional rights as enshrined in the Constitution of Kenya. The appellant had been convicted of the offence of murder by the High Court and subsequently sentenced to death. He was aggrieved by his conviction and sentence and therefore appealed on the ground that the imposition of a mandatory death sentence upon him was arbitrary and unconstitutional and that the execution of the same would amount to an inhuman and degrading punishment in breach of section 74(1) of the Constitution of Kenya; an arbitrary deprivation of life in breach of section 71(1) and 70 (a) of the Constitution and a denial of his right to fair trial in breach of section 77 of the Constitution of Kenya. The Hon. Mr. Justice R.S.C. Omolo
During the hearing, the appellant submitted that the imposition of the mandatory death penalty for particular offences was neither authorized nor prohibited in the current Constitution and therefore, it was upon the courts to give a valid constitutional interpretation on the mandatory nature of the sentence. He further stated that the mandatory death sentence was antithetical to fundamental human rights and that there was no constitutional justification for it. He further stated that an accused person ought to be given an opportunity to show why the death sentence should not have been passed against him. The appellant found the imposition of a mandatory death sentence to have been arbitrary because the offence of murder covered a broad spectrum. He submitted that section 204of the Penal Code which was to the effect that any person convicted of murder shall be sentenced to death was unconstitutional and should be declared a nullity.
However, before the hearing, the president had issued a blanket commutation of all the death sentences imposed against all the death row convicts in the country including the appellant. The commutation was on advice of the Advisory Committee on Prerogative of Mercy and the Powers were exercised under the Constitution.
The issue before court was whether it was inhuman to impose a sentence of death without considering mitigating circumstances of the commission of the offence and the offender; whether the dignity of humanity is ignored if this final and irrevocable sentence is imposed without the individual having any chance to mitigate; whether the lawful punishment of death should only be imposed after there was a judicial consideration of the mitigating factors relative to the offence itself and the offender. Held: 1.Section 84 of the Constitution of Kenya provided for the enforcement of the protective provisions under Chapter V and did not provide for exclusive jurisdiction of the High Court. Further, subsection 7 provided for appeal to the Court of Appeal as of right on matters determined by the High Court and therefore, it had jurisdiction to explore and adjudicate on the constitutional issues raised in the appeal. 2.Section 204 of the Penal Code which provided for a mandatory death sentence was antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial. The Constitution recognized the death penalty as being lawful but it had not mentioned anywhere that when a conviction for murder was recorded, only the death sentence should be imposed. 3.Section 204 of the Penal Code was inconsistent with the letter and spirit of the Constitution to the extent that it provided that the death penalty was the only sentence in respect of the crime of murder. 4.The High Court erred by imposing the death penalty upon convicting the appellant. According to section 329 of the Criminal Procedure Code, he was entitled to receive such evidence as he would have thought fit before passing sentence in order to have informed himself as to the proper sentence to pass. The appellant was therefore entitled to have his antecedents and other mitigating factors recorded for purposes of assisting the President in exercise of mercy but no information was recorded. 5.Courts would continue to impose the death penalty but that would only be done after the court had heard submissions relevant to the circumstances of each particular case. Appeal allowed. Case remitted to High Court to record both the prosecution and appellants submission before deciding on the appropriate sentence.
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Kenya Law Reports From the Courts Court of Appeal Framing of a charge of rape and defilement
Mwango Jambo Chilango v Republic Criminal Appeal No. 415 of 2009 Court of Appeal at Mombasa P.K. Tunoi, P. N. Waki, J.G. Nyamu JJ.A July 30, 2010 Reported by Monica Achode
Bench Bulletin
Case History Appeal from a judgment of the High Court of Kenya at Malindi (OMbija, J) dated 29th July, 2009 in H.C.CR.A. No. 31 of 2006
The appellant brought a second and final appeal against a conviction of 15 years on a charge of defilement of a girl. Amongst his grounds of appeal were that the charge sheet was defective for failing to include the word unlawful in the framing of the charge and that he should have been charged jointly with the other accomplices. It was his contention that these omissions occasioned him an injustice. He further claimed that he had not been properly identified by the witnesses and that an identification parade should have been conducted. During the trial it emerged that the appellant was an uncle to the complainant and had therefore been identified by means of recognition. The prosecution on its part stated that failure to use the word unlawful in the charge sheet was not fatal because there could not be consensual defilement and, further that the defect, was curable under Section 382 of the Criminal Procedure Code.
The Hon. Mr. Justice P. K. Tunoi
Criminal Practice and Procedure appeal second appeal appeal against conviction and 15 year sentence on a charge of defilement of a child - definition of the word defilement whether the appeal had merit Penal Code section 145(1) (Cap 63). Criminal Practice and Procedure charge - defective charge sheet charge sheet failing to state the word unlawfully as part of the particulars of the charge effect of whether the omission prejudiced the accused whether the omission could be cured by the provisions of section 382 of the Criminal Procedure Code (Cap 75) appellant not charged with others evidence identification identification by recognition appellant being an uncle to the complainant appellant claiming that an identification parade should have been conducted concurrent findings from the lower and superior court whether the appellate court could challenge that.
Held: 1. The Court has consistently applied the provisions of Section 382 of the Criminal Procedure Act to cure the omission of the word unlawfully in a charge sheet. The omission of the word unlawful from both the main and alternative counts did not in any way whatsoever prejudice the appellant in putting forward his defence. The major purpose of a charge was to inform the accused of what he was charged with. 2. In a charge of rape there could be no question of two or more people jointly raping a victim. 3. From the definition of the offence of the defilement in Section 145 of the Penal Code the main ingredients were the act of defilement and the age of the girl. It therefore followed that the offence of defilement as defined in the section was complete without the addition of the word unlawful. The word only became relevant when the defence in the proviso to the section was invoked. 4. The appellant was identified by the complainant and his two relatives who separately and consistently described the appellant as their uncle. There was no reason to interfere with the concurrent findings of the lower and superior courts holdings on identification. Under those circumstances an identification parade was not necessary. Appeal against conviction and sentence dismissed Advocate: Mr. Ondari, Assistant Director of Public Prosecution
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Kenya Law Reports From the Courts Court of Appeal Duty to call necessary witnesses
Bench Bulletin
Salim Mohammed Oyuga v Republic Criminal Appeal No. 207 of 2009 E.O. Okubasu, E.M. Githinji, J.W. Onyango Otieno Court of Appeal at Kisumu September 23rd 2010 Case History Appeal from a judgment of the High Court of Kenya at Kisumu (Mwera & Karanja, JJ) dated 21st July, 2009 in H.C. Cr. A. No. 103 of 2006 Criminal Practice and Procedure appeal second appeal appeal against a conviction on a charge of robbery with violence appellant convicted on the doctrine of recent possession appellant convicted on the evidence of a single witness whether that doctrine had been applicable failure by prosecution to call some witnesses claims of discrepancies in the dates adduced court duty to call witnesses where evidence was essential whether omissions and discrepancies were curable whether the case had been proven to the required standards - Evidence Act (Cap 80) section 143, Penal Code (Cap 63) section 296 (2). Reported by Monica Achode
The appellant came to court seeking to appeal against a decision of the superior court convicting him on a charge of robbery with violence. The appellants advocate contended that had not been The Hon. Mr. Justice properly identified as there was no connection between the appellant and the robbers. She E. M. Githinji further contended that the date given in the charge sheet contradicted the evidence given by the witnesses on that issue. It was also her contention that as the complainant alleged that she was attacked, but produced no P3 form to prove the same, the offence of robbery with violence under section 296 (2) of the Penal Code was not proved. Lastly, the appellants advocate maintained that the doctrine of recent possession was not applicable in this case as the investigating officer did not give evidence in this case and thus the case was not proved within the standards required by law.
On its part the respondent submitted that the conviction was properly entered against the appellant as it was based on possession of recently stolen property and as the robbers were more than one, it did not matter whether personal violence against the complainant was proved or not. On the discrepancy on the date of the arrest, the respondent submitted that it resulted from a typographical error and was thus curable under section 382 of Criminal Procedure Code. Lastly, state counsel submitted that even though the investigating officer was not called as a witness, nonetheless, the evidence though of a single witness that was adduced in court was adequate and there was no need for any other evidence in respect of the entire case. The main issue in contention was whether the doctrine of recent possession was applicable in the case. Held: 1. Matters such as whether the failure by the prosecution to call the investigating officer to testify was fatal or whether the discrepancy in the date of arrest as given in evidence had any serious bearing in the case, were matters that could not be of serious consequences. Under section 143 of the Evidence Act, no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. 2. The court could on its own as a matter of a right and a duty call witnesses where evidence appeared essential to the just determination of the case. Nonetheless this was only where the evidence called was so inadequate that the court could infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution. This was not such a case. 3. On the issue of the discrepancy between the date of arrest as in the charge sheet and as given in evidence, again we say nothing turns on that as the appellant himself agrees that he was arrested on 10th August, 2005 and not on 16th August as appears in the charge sheet. The error in the charge sheet was clearly curable by the provisions of section 382 of the Criminal Procedure Code. 4. The superior court, in analyzing and evaluating the same evidence afresh also accepted the evidence of the prosecution witnesses that the mobile phone had been received from the appellant. In law, the appellate court would be reluctant to interfere with such a finding on second appeal. 5. The two courts were plainly right that the appellant was shown by the single witness, whose evidence was believed by the two courts to have been in possession of the stolen mobile phone only a few hours after robbery. He gave no
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explanation whatsoever for that possession. The law was clear that under the circumstances he was proved to be one of the robbers. As the robbers were more than one, it did not matter that the complainant had not proven violence by producing P3 form. Even if that ingredient was ignored, the other ingredient of the complainant and others being attacked and robbed off their properties by more than one person was enough to prove the offence under section 296(2) of the Penal Code. Failing to produce a P3 form did not disprove the offence as charged. Appeal lacks merit. Advocates: Mrs. Odoyo for the appellant; Miss Oundo Principal Sate Counsel
Standard Limited v G.N. Kagia t/a Kagia & Company Advocates Civil Appeal No115 of 2003 Court of Appeal, at Nairobi P K Tunoi, Moijo Ole Keiwua & J G Nyamu JJ A September 24, 2010 Civil Practice and Procedure -damages-award of damages- mandate and latitude of the Court of Appeal and the principles it applies to interfere with a trial courts award of damages in libel- Rock-vs- Fairrie [1941] I All ER 297; Tanganyika Transport Company Ltd. vs- Ebrahim Nooray [1961] E.A. 55.0 Tort - libel-assessment of damages by the trial court in an action for libel-factors the trial court should consider in assessment of damages in an action for libel. Tort - libel- essence and rationale for award of damages in libel. This was an appeal against the quantum of damages awarded to the respondent following the publication of an alleged defamatory story by the appellant. It had been alleged that on or about the 6th of December 1999, the appellant wrote, printed and published or caused to be written certain falsehoods concerning the respondent. The said publication had allegedly implied that the respondent was one of the advocates who had made false insurance compensation claims. Aggrieved, the respondent filed a suit against the appellant in the superior court, to which Rimita, J. found for the respondent and awarded him general damages in the sum of Kshs.5, 000,000 The Hon. Mr. Justice The Hon. Mr. Justice and exemplary damages in the sum of Kshs.1, 000,000. As a result, the appellant appealed to the D. K. S. Aganyanya J. G. Nyamu Court of Appeal restricting itself to the quantum of damages awarded. Counsel for the appellant argued that the damages awarded were inordinately high and out of line with awards in some four comparable cases. He further argued that the respondent had failed to mitigate his loss because an offer of amends had been made by the appellant and finally, that a Kshs.2, 000,000.00 award in respect of general damages would have been sufficient. On his part, counsel for the respondent argued that the award was neither excessively high nor inordinately high; that in all the authorities relied on by the appellant on quantum, damages awarded were in the range of 1 (one) to 2 (two) million and that they were distinguishable because in some, the libel was restricted to either one institution or it was contained in a book and publication which was restricted to the book readers as opposed to the libel the subject matter of this case where the publication was to all readers and their associates; and that an advocate of 30 years standing in terms of injury to his reputation was in the same position as other prominent advocates and other prominent people awarded damages in the range of (6) six to (30) thirty million in the past and finally that, there was proof that his client had lost business as a direct consequences of the libel. Reported by Cornelius W Lupao.
Defamation: Award of damages
Held: 1.The latitude in awarding damages in an action for libel is very wide, that is, a Court of Appeal is to avoid substituting its own opinion as to what it would have awarded for the sum which had been awarded by a Judge below. 2.An appellate court would not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that, the Judge proceeded on wrong principles or that he/she misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. 3.In an action for libel, the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time the verdict was given. It could consider where his conduct had been before action, after action and in court during the trial. 49
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4.A man defamed does not get compensation for his damaged reputation but rather he gets damages because he is injured in his reputation, that is, simply because he is publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. 5.In situations where the author or publisher of a libel could have with due diligence verified the libelous story, for instance, where the author or publisher was reckless or negligent, then this factors should be considered. 6.The level of damages awarded should be such as to act as deterrence and to instill a sense of responsibility on the part of the authors and publishers of libel such that personal rights, freedoms and values should never be sacrificed at the altar of profiteering by authors and publishers. Appeal allowed in part, award of Kshs.6, 000,000 (six million) substituted with an award of Kshs. 3,000,000 (three million). Advocates: Mr. Billings for the Appellant Mr. Mugi for the Respondent.
By Monica Achode Case History Appeal from the judgment and decree of the High Court of Kenya at Kisumu (Warsame, J.) dated 3rd May, 2004 in H.C.C.C. No. 78 of 2003
Wellington Nganga Muthiora v Akamba Public Road Services Limited & Another Civil Appeal No. 260 of 2004 M. Ole Keiwua, J.W. Onyango Otieno, A. Visram JJ.A Court of Appeal at Kisumu September 24, 2010
Proof of ownership of accident vehicle by police abstract
Civil Practice and Procedure appeal second appeal against a decision of the lower and superior court dismissing suit for damages in a road traffic accident appellant having produced a police abstract as proof ownership of the motor vehicle evidentiary and probative value of a police abstract - whether a police abstract produced in proof of ownership of the subject vehicle was enough evidence appellate court jurisdiction to hear the appeal.
The appellant brought a second and final appeal against the lower and superior courts decision to dismiss his suit. It had been a claim for damages against the respondent for negligently causing the appellant injuries in a road traffic accident. Neither the trial nor the high court believed the appellants story as regards his being in the subject vehicle as his name was not in the manifest and he failed to produce ticket showing he was a fare paying passenger. In dismissing his suit the The Hon. Mr. Justice high court had stated that the police abstract had little evidentiary and probative value capable A. Visram of ascertaining the legal ownership of the motor vehicle which was alleged to have caused the accident. The issue of the appellate courts jurisdiction to hear the appeal was also raised. Held: 1. Where police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases. However, where it was challenged by evidence or in cross-examination, the plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary. 2. Where a right of appeal was confined to question of law, an appellate court had loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law. It was not to interfere with the decision of the trial or first appellate court unless it was apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision was bad in law. As the appellants evidence was not believed and as it was a matter of fact, the appellate court could not interfere with that finding which was a concurrent finding of the two courts below. Appeal lacks merit and is dismissed with costs to the respondents. Advocates: Mr. Otieno h/b for Mr. Gathua for the appellant; Mr. Odhiambo for the respondent
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Election petition: Interlocutory appeal overtaken by events
Bench Bulletin
Ali hassan Abdirahman v Mahamud Muhumed Sirat & 2 others Civil Appeal No 26 of 2010 Court of Appeal at Nairobi Githinji, Waki & Viram JJ A October 12, 2010 Reported by Emma kinya
Case History (An appeal from the ruling and order made by the superior court at Nairobi (Kimaru,J.)dated 22nd January, 2010 in H C ELECTION PETITIION No. 15 of 2008 Election law interlocutory appeal appeal against decision of the High Court dismissing an application for dismissal of an election petition, by holding that the 1st respondent was not in breach of the law in filing the election petition since the election court could not invalidate his National Identity Card and Passport ground; that the speaker of the National Assembly acted on a certificate issued by the election court when the law made provisions for an appeal against the decision of that court - whether such an appeal would be efficacious once the writ had been issued whether the appeal had merit National Assembly and Presidential Elections Act (Cap 7) section 23(4).
This was an interlocutory appeal arising from the High Court ruling which had dismissed an interlocutory application seeking the dismissal of an election petition filed in relation to Wajir South constituency. The applicant had made an application seeking to have the election petition dismissed on the grounds that the respondent was not a Kenyan citizen as he had acquired Australian citizenship and therefore did not qualify to participate in an election. The High Court dismissed the application by holding that the 1st respondent was not in breach of the law in filing the election petition since the High Court sitting as an election court could not validate his National Identity Card and Passport.
The appellant preferred an appeal challenging the High Courts decision on the grounds that the speaker of the National Assembly had acted on a certificate issued by the election court when the law had made provisions for an appeal against the decision of that court. He submitted that the law presupposed that as long as the parliamentary seat remained vacant, the process could be reversed by a successful appeal and that since the parliamentary seat was still vacant, the Court of Appeal was not precluded from granting the prayer sought in the memorandum of appeal. Held: 1.The interlocutory appeal had been overtaken by events and any orders issued would be made in vain which was an eventuality that any court would not countenance. 2.The interlocutory application made before the High Court, sitting as an election court, was predicated on an election petition and as long as that petition remained undetermined, the Court of Appeal could make orders which would bind the High Court in the main petition. However, this position had ceased. 3.The Court of Appeal recognized that High Court had declared the elections held in Wajir South Constituency as null and void and had proceeded to issue a certificate to that effect in accordance with the law. Further, that the speaker had also issued a writ and that nominations were completed and a by-election imminent. 4.Section 23(4) of the National Assembly and Presidential Elections Act (Cap 7) allowed for an appeal against the decision of the election court but it was not clear whether such an appeal would still be efficacious once the writ had been issued by the speaker. However, the Court of Appeal noted that the matter was not an issue it was called to adjudicate upon. 5.The interlocutory appeal served no purpose as it hung in the air after the conclusion of the Election Petition on which it was predicated. Appeal dismissed. The issue before the court was whether the appeal would be efficacious once the writ had issued.
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Plea bargaining - consideration of the victim impact statement befor sentencing Plea bargaining - restricted right of appeal against sentence Jacob Kirimu Kabiru v Republic Criminal Appeal No. 363 of 2009 Bosire, Githinji & Nyamu, JJ A Court of Appeal at Nyeri November, 2010 By Njeri Githanga
Bench Bulletin
Case History (Appeal from a conviction and decree of the High Court of Kenya at Nyeri (Makhandia, J.) dated 16th December, 2009 in H C CR C No. 63 of 2008)
Criminal Practice and Procedure - plea bargaining appellants murder charge reduced to manslaughter after plea bargaining-appellant sentenced to 10 years imprisonment-appeal on the ground that appellants mitigating factors had not been considered while sentencing- where there was no right of appeal against a sentence following a plea bargaining agreement -factors to be considered by the trial court before sentencing-failure by the court to take into consideration the willingness of the appellant to assist the dependants of the victim since he was a family memberwhether the sentence could be reduced- Criminal Procedure Code(Cap 75) sections 137A to E, 137L (1) and 329 (c)
The appellant had been charged with murder but pursuant to a plea bargaining agreement, the charge of murder was reduced to manslaughter. The trial court consequently convicted him on his own plea of guilt and sentenced him to ten years imprisonment. The appellant was aggrieved by the sentence and sought to appeal against it. The appeal was brought on the ground that having pleaded guilty to the lesser charge of manslaughter and having saved the courts time and resources, the appellant should have been given a non custodial sentence or the sentence of ten years be reduced to match the mitigating factors. The State submitted that the sentence was well merited taking into account that the appellant hit the appellant with an unidentified object in the head causing fatal injuries.
The Hon. Mr. Justice S. E. O. Bosire
Held; 1.An appeal arising from a plea bargaining agreement had to be considered in the light of sections 137A to E of the Criminal Procedure Code. Section 137L (1) provided that the sentence passed by a court under this part shall be final and no appeal shall lie therefrom except as to the extent or legality of sentence imposed The effect of the provision was that no appeal lay to the Court from the sentencing court which in the case was the superior court except on severity or legality of the sentence. 2.The restricted right of appeal where a bargain had been struck was to assist in speeding up the process and to attain finality at the earliest time possible. However, the superior court even after realizing that the plea was based on a plea bargaining agreement did not consider the mandatory provisions of section 137 I (2) of the Criminal Procedure Code and in particular, the need to take into account a victim impact statement. In our view, such a victim impact statement would have been necessary because the appellant had alluded to the possibility of assisting the dependants of the victim since he was a family member. The appellant had stated that the victim was his brother in law and it was therefore possible that that factor could have resulted in a reduced sentence so as to avail the appellant an opportunity to assist the victims of the crime. 3.Section 137 I and section 329 (c) of the Criminal Procedure Code respectively provided for the factors the Court was to consider while passing a sentence. However the superior court was not on record as having addressed both sections 137A to N and 329 (c) of the Criminal Procedure Code. Although section 329 (c) gave the court discretion to consider the appropriateness of a victims impact statement, that factor which had a bearing on the severity of the sentence ought to have been considered. Appeal allowed sentence reduced to nine years
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Plea bargaining - restricted right of appeal against sentence David Irungu Muriithi v Republic Criminal Appeal No. 379 of 2009 Tunoi, Githinji & Onyango Otieno, JJ A Court of Appeal at Nyeri November, 2010 By Njeri Githanga
Bench Bulletin
Case History (Appeal from a conviction and sentence of the High Court of Kenya at Nyeri (Makhandia, J.) dated 29th September, 2009 in H.C.CR.C. No. 2 of 2008) Criminal Practice and Procedure - plea bargaining appellants murder charge reduced to manslaughter after plea bargaining-appellant sentenced to 10 years imprisonment-appeal on the ground that appellants constitutional right under section 72 (3) (b) of the repealed Constitution had been breached and his mitigating factors had not been considered while sentencing- where there was no right of appeal against a sentence following a plea bargaining agreement -factors to be considered by the trial court before sentencing-where the trial court had complied with all the procedures relating to plea agreements -whether the sentence could be reduced- Criminal Procedure Code(Cap 75) sections 137A to E, Section 137L (1) and 329 (c)
The appellant had been charged with murder contrary to section 203 as read with section 204 of the Penal Code. He however entered into a plea agreement pursuant to section 137A (1) of the Criminal Procedure Code whereby the State agreed to reduce the charge to manslaughter and the appellant on his part agreed to plead guilty to the manslaughter. The trial court accepted the plea agreement pursuant to section 137H of the Criminal Procedure Code and the court entered the factual basis of the plea on record and proceeded to convict the appellant in compliance with section 137 L (1) of the Criminal Procedure Code. The court invited the parties to address it on the issue of sentencing in accordance with section 216 of the Criminal Procedure Code and upon considering the respective submissions, sentenced the appellant to 10 years imprisonment.
The Hon. Mr. Justice E. M. Githinji
The appellant appealed against the sentence on the ground that; his mitigation that he was a father of two children who solely depend on him was not considered and further that the court erred in law in convicting and sentencing him without considering that his rights under section 72 (3) (b) of the 1963 Constitution had been violated. Principal State Counsel submitted that the sentence was well merited and the trial Judge had taken into account all factors; that life was lost over a minor dispute and that the sentence was very lenient. Held; 1.The ground relating to the breach of constitutional right under section 72 (3) (b) of the repealed Constitution had no merit because the appellant raised that ground as preliminary objection to the charge and the trial court made a finding that the constitutional rights of the appellant had not been violated and hence dismissed the preliminary objection. 2.An appeal against conviction was incompetent upon the court convicting and sentencing an appellant pursuant to a plea agreement under section 137L of the Criminal Procedure Code. The section prohibited any appeal except as to the extent or legality of the sentence imposed. The trial Judge strictly and cautiously complied with the procedure relating to plea agreements contained in section 137A 137 L of the Criminal Procedure Code including taking into account the stipulated factors before passing the sentence. Appeal dismissed Aneriko M. Simiyu v Redempta Simati Civil Appeal No. 227 of 2004 R. S. C. Omolo, D. K. S. Aganyanya, J. G. Nyamu JJA Court of Appeal at Kisumu September 24th 2010 By Monica Achode
High Courts power of review under Order 44
Case History Appeal from the ruling of the High Court of Kenya at Bungoma (Sergon, J.) dated 23rd July, 2004 in H.C.C.C. No. 94 of 1999 53
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Civil Practice and Procedure appeal appeal against a decision review claims that the court had erred in hearing a second application for review contrary to the rules of procedure dispute involving land - manner in which applications for review ought to be dealt with whether the review was within the ambit of the review jurisdiction whether the appeal had merit - Civil Procedure Rules Order 44. This was an appeal from the ruling of the superior court whose subject matter was an application for review under Order 44 of the Civil Procedure Rules. In that application the applicant had sought to restrain the appellant from alienating the suit property known as East Bukusu/South Kanduyi/8051, an order of review to set aside the superior courts order of 13th December, 2001; an order restoring 0.97 Hectares to East Bukusu/South Kanduyi/15 to be excised from East Bukusu/South Kanduyi/8051 and an order of rectification of the register to reflect the changes. The application for review resulted in the superior court setting aside the court order and an order the 0.97 hectares of land excised be restored. The respondent in a civil suit had sought an eviction order against the appellant from East Bukusu/South Kanduyi/7029. The presiding magistrate referred the dispute to the Land Disputes Tribunal, Kanduyi. The tribunal made an award in favour of the deceaseds legal representative against which the appellant filed an appeal in the superior court which in turn quashed the award. The appellant then subdivided the suit property into three. The un-subdivided parcel namely bordered parcel No. East Bukusu/South Kanduyi/15 which was registered in the name of the deceased and was not the subject matter of the case in the magistrates court or the land tribunal.
However, through proceedings conducted ex parte, a vesting order in favour of the appellant was made in respect of East Bukusu/South Kanduyi/15 but the vesting order was subsequently raised or lifted on 24th November, 2000 when the respondent moved to court. The Deputy Registrar of the superior court signed the vesting order and the Executive Officer of the superior court signed mutation forms excising from East Bukusu/South Kanduyi/15 parcel of land measuring 0.97 hectares and adding to East Bukusu/South Kanduyi/7029 thereby increasing its acreage to 1.41 hectares. In the appeal the appellant submitted that the learned Judge, erred in hearing a second application for review contrary to the provisions of Order 44 of the Civil Procedure Rules and that the effect of the second review amounted in the court sitting on appeal of a judge of cognate jurisdiction. The appellant further submitted that the delay in bringing the application for review was inordinate and for this reason the court should not have allowed it.
Held: 1. What emerged from the combination of the two parcels above was that there was an error on the face of the record in that the ruling which purported to bring the proceedings of parcel East Bukusu/Kanduyi/15 into the proceedings of the tribunal and in the magistrates court had errors apparent on the face of the record. These errors entitled the court to exercise its powers of review under Order 44 of the Civil Procedure Rules and the learned Judge could not in the circumstances be said to have sat on appeal in respect of the ruling of a judge of cognate jurisdiction. 2. The superior court handled the situation admirably in terms of putting to an end what appeared to have been a suspicious mutation and subdivision which unfortunately involved some court officials when it was clear that such transactions were ordinarily handled by the Lands office and the survey office. Consequently, the review was within the ambit of the review jurisdiction. 3. The challenge that the learned Judge could only have acted on the basis of oral evidence instead of relying on affidavit evidence had no basis in law. Review applications were invariably dealt with by the courts on the basis of affidavit evidence. In this regard, it was incorrect to state that the court relied on extraneous evidence whereas it was clear from the record that, the court in reviewing its past decisions relied solely on the record. Again, it could not be correct that a court of law would be said to be functus officio when moved to correct a mistake or mistakes apparent on the face of the record because the ultimate result would be injustice. Appeal dismissed with costs to the respondent. Advocates: Mr. Sichangi for the appellant; Mr. Kibera for the represented
The respondent on her part submitted that the application which had resulted in the ex parte order being made had not been served on her but all the same the court proceeded to issue the orders. She claimed that it was the un-served application which introduced into the dispute parcel East Bukusu/South Kanduyi/8051 although it was not part of the tribunals proceedings and therefore this was also a reviewable error which was apparent on the face of the record.
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Kenya Law Reports From the Courts Court of Appeal Negligence: the Rule in Rylands v Fletcher
Bench Bulletin
Reported by Monica Achode Case History Appeal from the judgment and decree of the High Court of Kenya at Kisii (Wambilyangah, J.) dated 25th September, 2003 in H.C.C.C. No. 369 of 1997
Kenya Shell Limited v Milkah Kerubo Onkoba Civil Appeal No. 298 of 2004 S. E.O. Bosire, P. N. Waki, J. D. Nyamu JJ.A Court of Appeal at Kisumu September 24, 2010
Civil Practice and Procedure appeal appeal against a decision of the court awarding the respondent damages in a suit for negligence where a diesel tank belonging to the appellant leaked into the respondents well principles established in a claim for damages defence of Act of God duty of the injured party to mitigate the damage - principle of environmental law that the polluter must pay whether failure to disclose the specific tort committed was fatal to the claim rule in Rylands v Fletcher whether the facts established the appellants liability.
The appellant came to Court of Appeal seeking to appeal the decision of the superior court holding it liable for contamination of the respondents borehole and awarded her a global sum of Kshs. 600,000/= as general damages. This was after a full hearing where the respondent testified and the appellant had failed to offer any evidence in rebuttal. The respondents case against the The Hon. Mr. appellant had been that a diesel tank belonging to the appellant leaked into the respondents well. Justice She claimed general and special damages occasioned by the escape of diesel from the appellants S. E. O. Bosire tank. The appellant company made efforts to clean her borehole but their effort was unsuccessful and the water in the well remained unclean for a long time after the leakage. As a result, the appellant made an effort to supply her with water for two weeks only and thereafter stopped, forcing her to seek an alternative supply at the rate of Kshs. 800/= per day. She had claimed special damages of Shs. 800/= per day until the date the respondent would successfully clean the borehole or the appellant would be in a position to sink an alternative borehole for the respondent. The appellant had denied liability stating that it had been occasioned by an Act of God. The superior court awarded in favour of the respondent prompting the appeal against the decision.
It was argued by the appellants advocate that neither the plaint nor the proceedings disclosed the specific tort which had been committed by the appellant and consequently the award of general damages was wrongful. Further, it was stated that the respondent had not proved special damages and the court should not have used the special damages allegedly incurred per day as a benchmark or the basis for awarding general damages. The advocate further contended that no evidence was adduced on the inconvenience suffered and that the superior court did shift the burden of proof to the appellant and that there was no nexus between the alleged damage and the appellant and if there was any such leakage, it must have been an act of God for which the appellant was not responsible. Finally, the appellants counsel submitted that the respondent had a duty to mitigate any loss and had not done so yet this factor was not taken into account by the court when awarding damages. The respondents advocate on his part urged the Court to note that the superior court made a finding on the issue of liability, on the basis of the evidence adduced by the respondent and two of her witnesses since the appellant had declined to do so. He also argued that, the fact that the appellant had tried to clear the borehole after the event was an admission of liability. He further submitted, that the water from the respondents borehole was analyzed by experts from the Kenya Bureau of Standards and it was confirmed that an underground oil tank had leaked and oil had seeped into the plaintiffs borehole
Held: 1. Although there was no dispute on the cost of sinking a new borehole the respondents abortive efforts to clean the borehole confirmed the continuing pollution of the respondents land and for this reason, it would not have been reasonable to expect the respondent to mitigate her loss by sinking a new borehole at that cost until such time that the appellant would either repair the leak or remove the underground tank. 2. The leak had an environmental dimension in that it was a cardinal principle of environmental law that the polluter must pay. Viewed from this standpoint, the global amount awarded cushioned the respondent against loss the full extent of which was not as at the time of hearing ascertainable due to its continuing nature. The respondent had discharged 55
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her duty to mitigate. 3. On the issue of damages, the averments in the plaint were sufficiently clear to have indicated to the court that the tort perpetrated was that under the rule in Rylands vs- Fletcher [1868] LR 3H.L.330. This rule stated that the occupier of land who brought and kept upon it anything likely to do damage if it escaped was bound at his peril to prevent its escape, and was liable for all the direct consequences of its escape, even if he had been guilty of no negligence. Therefore failure by the respondent to specify the actual tort was not fatal to the claim since the particulars given in the plaint pointed to the tort. 4. Lability had been admitted by the appellant by its conduct and in particular the supply of water for two weeks; and the unfruitful effort to clean the respondents borehole. Appeal dismissed with costs to the appellant Advocates: Mr. Lungaho Siganga for the appellant; Mr. G. J. M. Masese for the respondent
56
Kenya Law Reports From the Courts High Court Procedure for setting aside arbitration award on grounds of bias
Sobeth Developers Ltd v South Nyanza Sugar Co. Ltd Civil Case No. 85 of 2000 High Court at Kisii A. MAkhandia, J May 14, 2010 Reporetd by Monica Achode
Bench Bulletin
Arbitration arbitration award setting aside of arbitration award stay of effect of award grounds of bias arbitration being in regard to several suits involving both parties arbitrator having been agreed upon by both parties test for bias in conduct of arbitration proceedings - grounds of setting aside an arbitrators award - procedure of moving the court in such applications - whether the arbitrator misconducted himself in the manner he presided over the arbitration - Civil Procedure Act (Cap 21) section 3A Arbitration Act (4 of 1995) sections 35, 37 Civil Procedure Rules Order 45 rule 3(1), 15, and 19. The applicant came to court seeking orders that the arbitration award by the arbitrator be set aside and that any other consequential orders arising there from be stayed. It was the applicants contention that the arbitrator fraudulently concealed the fact that he was a client and family friend of the defence counsel, a fact which was material to the result of the arbitration proceedings on the basis of bias. Further, it was contended for the applicant that the arbitrator misconducted himself by not reading the award and insisting that his full fees be paid upfront before he could deliver the same. The respondents denied the claims of bias stating that the arbitrator had been agreed upon by both parties. It was their contention that the test for bias had not been met. The respondent also contended that the application had not been brought properly before the court. The arbitration proceedings had been in regard to several suits involving both parties. The issue for determination was whether the arbitrator misconducted himself in the manner he presided over the arbitration proceedings.
Held: 1. There were two essential grounds of setting aside an arbitrators award; corruption and misconduct of the arbitrator and secondly, either party fraudulently concealing any matter which he ought to have disclosed, or willfully misleading and deceiving the arbitrator. 2. Sections 35 of the Arbitration Act provided for the application for setting aside of the arbitral award and section 37 thereof dealt with grounds for refusal of recognition or enforcement of the award. Considering those provisions of the application was properly before court. 3. From the time of his appointment up to the end of the arbitration proceedings, the arbitrator was required without delay to disclose any such circumstances to parties unless the parties already had the information. Failure of disclosure amounted to misconduct. 4. The question of bias was really a matter of perception. The test for bias as established in Locabail(UK) Ltd V. Bayfield Properties Ltd & another(200) IALL E.R.65 was that where it was alleged that there was a real danger or possibility of bias on the part of a judicial decision-maker, that danger would be eliminated and the possibility dispelled if it is shown that the judge was unaware of the matter relied upon as appearing to undermine his impartiality. In contrast, a real danger of a bias would be thought to arise if there was personal friendship or animosity between the judge and any member of the public involved in the case or if the judge was closely acquainted with any member of the public involved in the case. Application allowed. Advocates: Mr. Oduk for the applicant; Mr. Makori for the respondent
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Kenya Law Reports From the Courts High Court
Bench Bulletin
Service of Election Petitions. Liability of election body for the acts of a Returning Officer Dickson Daniel Karaba v John Ngata Kariuki & another [2010] eKLR Election Petition No. 3 of 2008 High Court at Nairobi M Warsame J May 21, 2010 Reported By Njeri Githanga
Election Petition service service of process application to strike out an election petition on the grounds that it had not been served on the 2nd respondent within twenty eight days after the publication of the results as required by law - affidavit of service of the process server silent on service upon the 2nd respondent application opposed claim that due diligence was exercised in the service of the election petition whether the 2nd respondent was duly served with the election petition in accordance with the law National Assembly and Presidential Elections Act (Cap 7) Section 20(1) (a) (iv) - National Assembly (Election Petition Rules) rule 14 (1). Election Petition service- definition and purpose of service where personal service was the best mode of service whether personal service could have been inferred in the circumstances whether the application was incompetent -National Assembly and Presidential Elections Act (Cap 7) Section 20(1) (a) (iv). Agency principal and agent relationship between a returning officer and the Electoral body- where one is deemed an agent if he acts for another or by operation of the lawpresumption in law that a statutory body appointed responsible, knowledgeable and honest officers in performance of its Constitutional mandate mandate of the 2nd respondent in carrying out elections in Kirinyaga Central Constituency - duty of the 3rd respondent to be responsible for the negligence, want of care and failure to conduct and conclude free and fair elections of the 2nd respondent unless there was evidence of malpractices for the benefit of the 2nd respondent-whether the 3rd respondent was liable for the acts and omissions of the 2nd respondent Constitution of Kenya, section 41. Estoppel - equitable estoppel -estoppel by conduct-second respondent having submitted himself to court without filing any documents under protest-notice of instruction and appointment filed o behalf of the 2nd respondent-applicant having entered an unconditional appearance in proceedings in court-whether that waived any irregularities-where there was delay of 40 days in bringing the application-whether that estopped the 2nd respondent from challenging service. Civil Practice and Procedure - striking out of pleadings-striking out an election petition for want of service-where striking out of a petition on irregularity amounted to a denial of a fundamental right of equality before the law-where it was a general rule of law founded on public policy that matters before the court had to be determined on substantive merit without undue regard to technicalities or procedure - where striking out of pleadings was drastic and draconian which could only be resorted when the jurisdiction of the court had been properly invoked - whether the failure to serve the petition personally could entitle the petitioner to seek and obtain final or interlocutory judgment. Statutes interpretation of statutes-where the rules governing election petitions made no provisions for personal service or non service- section 22 (22(a) (Cap 7) providing that petitions would only be summarily rejected where there was no sufficient grounds to grant reliefs sought-Sufficient grounds not to be curtailed by placing a limited interpretation upon its meaning-duty of the court to give an intelligent interpretation to the legislation, and not to construe it, in a manner which would imply to it, a meaning not expressly provided for -whether the repetitive or continuous use of a particular procedure gave the court authority to strike out a petition when the law did not provide for that procedure- National Assembly and Presidential Elections Act (Cap 7) Section 22(a). Jurisdiction - jurisdiction of the High Court-where the High Court enjoyed unrestricted and unlimited powers in all matters of substantive law, concerning the general administration of justice in order to fulfill, properly and effectively its role as a court of law- duty of the High Court to ensure strict compliance with the relevant provisions of the law- where the National Assembly and Presidential Elections Act and the rules there under did not provide for striking out an election petitionwhether the court had the jurisdiction to strike out the petition-Constitution of Kenya, section 60(1). The applicant, the returning officer in the Kirinyaga Central Constituency in the 2007 parliamentary elections, sought to strike out an election petition on the ground that he had not been served with the petition within the period prescribed by law. It was the applicants case that no personal service was effected on him as prescribed by section 20 (1) (a) of the National Assembly and Presidential Elections Act and Rule 14 (1) of the National Assembly (Election Petition Rules).
The petitioner opposed the application and relied on an affidavit of service sworn by the process server. The process server had narrated the chain of events that led him to affix the copy of the petition on the house at Kihuyo village. He explained that because the applicant had not given his physical address, he made inquiries from Nyeri the Interim Independent Electoral Commission (IIEC) office and later from the locals about the location of the second respondents house. He chose to affix the petition after several futile attempts to locate and serve the second respondent. It was hence contended that although no personal service was effected, it could be inferred from the circumstances in the case.
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Held: 1. The purpose of service was to bring to the knowledge or attention of a litigant that there was a cause of action or proceedings in which he was concerned and in the same breadth, he was warned of some step or action which could be taken in the event he did not appear before court to defend or inform court his side of the story. It was a step required by the rules of the court to bring documents filed in court to an individuals attention. 2. Personal service remained the best form of service in all areas of litigation however, where it was not possible, other forms could be resorted to. The law required the petitioner to demonstrate to the courts satisfaction that he made efforts to effect service but the effort did not bear fruits. 3. The 2nd respondent discharged his duties in consultation, coordination and under the direction of the Electoral Commission of Kenya (ECK). The court was capable of looking at the allegations against the 2nd respondent not in respect of any willful misconduct that could attract personal liabilities or retribution but which could amount to possible impropriety into the way the election process took place in the constituency and whether the defunct ECK carried out its functions and duties competently, fairly and freely and on the same breadth determine the extent of any allegations and whether it was true or credible. In determining that task the court had to ensure the right parties were before court and the parties were rightly served. 4. The primary duty of an agent was to carry out, the business he had undertaken and the rights of an agent flow from the principal as representative and acting on his behalf and is therefore entitled to be indemnified for such liabilities incurred and losses suffered as were in contemplation when the agency was undertaken. As a general rule, a principal was responsible for all the acts of his agents within the authority of the agent. 5. An employer was vicariously liable or responsible for the negligence of his employee in the course of his employment. In certain circumstances, he could incur responsibilities by reason of their acts or omissions. The Returning officer in an election was given definite instructions as to the manner in which the election had to be conducted. He had to follow the instructions given clearly and strictly, provided they were lawful. He had no discretion to disregard the instructions given and in that regard he had to exercise care, skill and diligence. In essence he was not required to go beyond his reasonable and expected duty. 6. Applying the principles of vicarious liabilities and principal/agent meant that the 3rd respondent was likely to be responsible for the negligence, want of care and failure to conduct and conclude free and fair elections of the 2nd respondent unless there was evidence that the malpractices alleged by the petitioner was for the benefit of the returning officer. 7. The 3rd respondent could not escape liability for the conduct of the election officials; hence the absence or the inclusion of the 2nd respondent in the petition was immaterial. There existed a relationship of master and servant between the 2nd and the 3rd respondents and the absence of the returning officer as a party was not fatal to a petition filed by an aggrieved party. 8. An election petition was not about the returning officer but the wholesome process of the electoral process conducted by the election authority. If the election body felt that the presence or the omission of the returning officer was fundamental to its case, then it could make the relevant application before court for that party to be enjoined in the proceedings. A returning officer was not a party who was necessary in the effectual and complete determination of a petition filed by aggrieved party. 9. Rule 10 of the Election Petition Rules did not compel a Returning Officer to supply his personal or physical address to the ECK offices, it was hence practically impossible in the circumstances to trace the Returning Officers residence since he was not a man who can be said was a prominent individual within Kirinyaga or Nyeri Districts. 10 The application by the 2nd respondent was incompetent and an abuse of the court process as the basis of the application was whether the petition was properly served or not. The only way to know whether a particular document was served personally or otherwise was possession of evidence or facts alleging that the said person was served. The application was based on a different affidavit of service while the 2nd respondent was complaining that he was not personally or otherwise served. 11. Admittedly, the 2nd respondent had not been personally served but he filed notice of appointment on January 23, 2008 and he submitted himself before the court. A party who submitted himself before court and who had not filed, any documents under protest could not seek the striking out of a matter in which he submitted himself without any protestation. 12. It was a general rule of law founded on public policy and recognized by parliament that litigation or matters filed before court had to be determined on substantive merit without undue regard to technicalities or procedure. Section 23 (1) (d) of Cap 7 was a clear manifestation in that regard. It was unduly oppressive and disproportionate to strike out a cause of action on allegation of personal service. In that regard, disposal of proceedings without trial had to achieve the ends of justice. 13. Where a party entered an unconditional appearance to an action, it was regarded as an act which waived any irregularities. There was no specific provision in the Act and the Rules for conditional appearance. However it had been the practice where appropriate to enter a conditional appearance. 14. The 2nd respondent acknowledged service by instructing his advocates to file notice of appointment on January 23, 2008. An acknowledgement of service could only be amended or withdrawn with the leave and permission of the court. The 2nd respondent had not sought leave of the court to file the application, after filing an unconditional 59
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appearance and participating in the proceedings before court. 15. A further aspect of the 2nd respondents conduct as constituting evidence of waiver was the great delay in bringing the application in question. It had been brought 40 days after the filing of an unconditional notice of appointment on behalf of the 2nd and 3rd respondents. Although no time limit was prescribed for the bringing of such an application, it was inherent in the obligation attaching to a party seeking a relief of that nature to ensure that there was prompt and quick resolve in pursuing what he felt was a defence or a point of attack. 16. The statute and the rules governing the election petitions made no provision or gave no step to be taken by the failure of the petitioner to serve personally or in cases where the respondent raised an issue of personal service or non service. In essence there was no step that could be taken against the respondent other than setting the petition for hearing. Where a party filed an unconditional notice of appointment and there being no evidence that he had suffered any prejudice, injury or damage, he could not be heard to question the mode of service that was used by the petitioner in serving the petition. 17. The failure to serve the petition personally or otherwise, could not entitle the petitioner to seek and obtain final or interlocutory judgment. The entry of an unconditional appearance waived any irregularities in the service against the 2nd respondent. Matters of procedures (service) were not normally of a fundamental nature to defeat the case of a party seeking justice for disclosed grievances. 18. The notice of instruction and notice of appointment filed on behalf of the 2nd and 3rd respondents created the unqualified presumption in favour of the petitioner that the petition was properly served by use of the correct means and mode. The 2nd respondent could not contradict his principal and the advocate on record by stating that he was not personally served and that the petition came to his knowledge on February 4, 2008. A party could not be allowed to benefit from his own wrong or from his own contradiction. 19. The only time a respondent could challenge service was when it was served outside the mandatory 28 days. An individual was entitled to fundamental justice in the adjudication of his/her case on merit. That was a right not a privilege accorded by courts. Striking of a petition on an irregularity amounted to a denial of a fundamental right of equality before the law. In any case there was no direct link or connection between personal service and striking out of a petition where a party seeking the orders was before court having suffered no injury or was unlikely to suffer any damage. 20. Allowing an application for striking out a petition on personal service was reverse or narrow focus or reactionary and/or retrogressive jurisprudence developed by the courts. Its principles and underlying premises were not so firmly entrenched in the statute and it was not so fundamentally sound to acquire precedence status. 21. The defect of which the 2nd respondent complained in regard to the service of the petition constituted an irregularity capable of being waived. 22. According to section 22(a) a petition could only be rejected summarily if the court considered that there was no sufficient grounds for granting the relief claimed as disclosed in the petition. Sufficient grounds were not to be curtailed by placing a limited interpretation upon its meaning or by reading into it, the requirement of striking out the whole petition. No limitation could be prescribed to say what particular set of circumstances would constitute sufficient grounds. If the court was to give an intelligent interpretation to the legislation, and not to construe it, in a manner which would imply to it, a meaning not expressly provided for. The words no sufficient ground had be considered separately and independently from the issue of personal service or non-service at all. 23. Section 22(a) of Cap 7 was equivalent to Order 6 Rule 13 which clearly spelt out when a cause of action could be struck out. Where a statute confered a jurisdiction upon a court, unless the exercise of such jurisdiction was made conditional upon rules of the court first being made, the fact that no rules had been made regulating the procedure did not prevent the jurisdiction from being exercised. Habitual, repetitive or continuous use of a particular procedure did not give the court authority to strike out a petition when the law did not provide for that procedure. 24. It was the responsibility of the High Court to ensure strict compliance with the relevant provisions of the law. It could be easily demonstrated that the court exercised powers donated by a particular statute in addressing and answering a question put to it or placed before it for answers. In answering questions put before court, the court had to be clothed with proper jurisdiction. 25. The High court enjoyed unrestricted and unlimited powers in all matters of substantive law, concerning the general administration of justice in order to fulfill, properly and effectively its role as a court of law. However, the overriding features of justice were that it must not only be done but it must be seen to be done. In all the circumstances before the High court where petitions had been struck out, the parties seeking the intervention of High Court were before court but alleged procedural issues of personal service or non-service at all. Where a statute conferred a jurisdiction upon a court, then unless the exercise of such jurisdiction was made conditional upon the rules of the court first being met, the fact no rules had been made regulating the procedure did not prevent the court from addressing its mind to the issue of substantive justice. 26. The court has no jurisdiction to strike out a petition because of personal service or non-service at all. The court also had no jurisdiction to strike out a petition on the grounds that it was served outside the mandatory 28 provided there were sufficient reasons for doing so. In civil proceedings, the summons could be extended or enlarged even after 1 year and up to 2 years depending on the circumstances. The provision limiting the time of service to 28 days was discriminatory and did not support the principle of equality before the law.
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27. The courts mandate was to determine what was the proper construction of sections 20(1) (a), 22(a), 23(1) (d) of Cap 7 was and it was no concern to the court whether a particular mode of service was the best or not. Legislative would have expanded the scope and application of section 20(1) (a), thereby enlarging the courts jurisdiction to grant the relief of striking out a petition for non service or personal service. The absence did not necessarily connote impediment, disability, void or vacuum preventing a petition from proceeding to full hearing if no personal service existed. Any statement to the contrary was an incorrect statement of law and could not be followed. 28. Striking out of pleadings was drastic and draconian which could only be resorted to when the jurisdiction of the court had been properly invoked. Where the statute and rules granting the court jurisdiction, did not permit such a route, the court had no powers to do so. 29. Under section 82(1) of the Constitution, provided that no law would make any provision that was discriminatory either itself or in its effect. The law did not allow affording different treatment to different persons attributable wholly or mainly to their positions. The striking out of a petition mainly on issue of personal service or non-service when the party alleging such defect was before court, was in violation of the Constitution. Where the law did not impose a duty or an obligation upon a party it could not be inferred or imported that it was intended. The law never implied and the court never presumed unless there was an absolute necessity to do so. 30. A cursory reading of section 20(1) (a) and rule 14 (1) and (2) together with Rule 10 showed that it did not impose a duty on the petitioner to personally serve the respondent. The failure by the petitioner to personally serve the 2nd respondent would not and could not render the whole petition invalid so long as the respondent was made aware and was properly before court having suffered no prejudice. 31. The National Assembly and Presidential Elections Act Cap 7 and the rules made thereunder, did not provide for striking out an election petition, and in the absence of an express power to strike out a pleading, the court could only invoke its inherent power prescribed under section 60(1) of the Constitution. 32. The court could not exercise its inherent jurisdiction, when the exercise would lead to an injustice. The inherent jurisdiction of the court enabled it to exercise control over process by regulating its proceedings by preventing the abuse of the process. It was not intended to displace a party of his matured right which was likely to result in an injustice. 33. Striking out of a petition was outside the inherent jurisdiction of the High Court and it could not be exercised to aid a party who had not suffered any prejudice or injustice due to the acts or omission of another party. Application dismissed Advocates: Mr. Wamae for the Petitioner Mr. Arusei for the 2nd Respondent
Kingsway Motors Limited v Corner Garage Transport Limited Civil Suit No 1390 of 1999 High Court, at Nairobi. Justice P. Kihara Kariuki June 3, 2010 Contract-contract for transportation of goods-where transporter (common carrier ) inserts an exclusion clause in the contract exempting it from liability arising from damage to the goods transported-whether such an exclusion clause can exempt the transporter from the liability arising from damage occasioned to the goods transported-meaning of common carrier. The plaintiff, Kingsway Motors Ltd, alleged that it had consigned five units of cars to the defendant to transport to Nairobi by road. The said cars were allegedly damaged while being transported by the defendants. Consequently, the plaintiff argued, the transporter was under a duty to deliver the goods to Nairobi undamaged or in the condition in which they were handed over to them (defendant) at the Port of Mombasa. In its defence, the transporter, argued that the goods were carried at the owners risk, and therefore as a transporter, it was exempt from liability as far as the damage to the goods was concerned.While making his submissions, counsel for the plaintiff submitted that although on the face of the Delivery Note it was stated that the goods were to be transported at owners risk and that the vehicles were to be transported subject to the transporters conditions of carriage, that alone could not absolve the transporter from liability in the event of loss of or damage to the goods. This, Kingsway further argued, was because, in law, as a bailee for reward or a common carrier, the transporter was under a duty to safely and securely deliver the goods entrusted to it to the designated destination. Moreover, Kingsway submitted that the declaration that the goods were carried at the risk of the owner and on the transporters terms and conditions of carriage could not exempt the transporter from liability where loss or damage was caused by negligence on the part of the transporter or its servants. Kingsway was of the opinion that the fact that it had successfully made a claim for compensation for the damage from its insurers did 61 Reported by Cornelius W. Lupao
Carriage by road - carries duty of care
Bench Bulletin
not prevent it from recovering damages against the transporter in what in insurance law is known as a subrogatory suit. Kingsway also pointed out that apart from relying on the exemption printed on the Delivery Note, the transporter had made no attempt to place before the court evidence to show that the accident which had resulted in the damage to the goods was not caused by negligence on its part or on the part of its employee for which , it would be vicariously liable.
On its part, the transporter submitted that it was fully exempted from any liability by virtue of the notice that the goods were to be carried at the owners risk and the express stipulation that they were to be transported subject to the transporters terms and conditions of carriage regardless of whether the loss or damage was caused by negligence on its part or not. Indeed, one of the terms in the conditions of carriage stated that the company was not to be liable for loss, damage, deviation, mis-delivery, delay or detention of or to a consignment or any part thereof or to any goods whether or not such loss, damage, deviation, mis-delivery, delay or detention was caused by or through or due to the negligence of the Company or its servants or otherwise. It was also submitted that since the transporter was a common carrier, it could exempt itself from liability even in a case where negligence was alleged or even proved. Held: 1.The exemption clause in the transporters terms and condictions of carriage was an unfair term as it virtually gave it an open license to steal or damage its clients goods with impunity and without right of recourse. 2.Whether as a common carrier or bailee for reward, the transpoter was under a duty to transport the goods in a secure condition and to deliver them to the Plaintiff at the agreed destination. Advocates: Mr. Mansur Satchu for the Defendant Mr. Satchu and Mr. Luseno for the Third Party.
State liability for torture and inhuman and degrading treatment
Harun Thungu Wakaba and 20 others v The Attorney General [2010] Misc.Appl. No. 1411(OS) of 2004 (consolidated) High Court of Kenya at Nairobi H. M. Okwengu J. July 21, 2010 Reported by Njeri Githanga
Constitutional Law - fundamental rights and freedoms-protection against torture or inhuman treatment -claim that the plaintiffs had been subjected to interrogation and various acts of torture, inhuman and degrading treatments sufficiency of facts- where the pleadings were supported by evidence -whether there was breach of the plaintiffs rights- Constitution of Kenya Sections 70, 72(3 & 5), 74(1), 77, 78(1) and79 (1) - the Universal Declaration of Human Rights, Article 5. Constitutional Law - fundamental right and freedoms-limitation period-time within which to seek redress for breach of the rights- -limitation provisions under the Public Authorities Limitations Act where there was no limitation under the Constitution -whether the Public Authorities Limitations Act could override the Constitution and be used to curtail rights provided under the ConstitutionConstitution of Kenya section 3, Public Authorities Limitations Act. Constitutional Law - jurisdiction-jurisdiction of the High Court to deal with the issue of violation The Hon. Lady. Justice of constitutional rights-claim that the Truth, Justice and Reconciliation Commission (TJRC) could deal with the issue- where the Act establishing the Commission had come into effect after the M Okwengu J plaintiffs had filed their suits- whether the court had the mandate to deal with the plaintiffs claims - Constitution of Kenya Section 84 . Constitutional Law - fundamental rights and freedoms- breach of -award of damages-quantum of damages-whether the court could award general damages . The plaintiffs who had been victims of the Nyayo House Torture Chambers, had each filed suits against the Attorney General seeking for compensation for breach of their fundamental rights and freedoms under sections 70, 72(3 & 5), 74(1), 77, 78(1), 79(1) & 80(1), 82(3) of the Constitution of Kenya.
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In objecting to the claim, the State submitted that the facts sworn to by the plaintiffs in their affidavits did not disclose the full facts and therefore the matter was not properly before the Court. It was further submitted that the matter complained of, could be adequately adjudicated upon by the Truth, Justice, and Reconciliation Commission (TJRC). The State reiterated that in enacting the TJRC 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. It was also argued that the plaintiffs had filed their suits out of time. It was further argued that the claims filed by the plaintiffs offended Section 3 of the Public Authorities Limitation Act, as the same ought to have been brought within one year. Finally, the State submitted that fundamental rights or human rights, were not absolute, but were subject to the rights of others and the society.
The complaints were that each plaintiff was arrested individually on a particular date, taken to a police station and thereafter to the Nyayo House Basement where each was held incommunicado in a completely dark cell. Each of the plaintiffs was subjected to interrogation and various acts of torture, inhuman and degrading treatments at the Nyayo House. After being held for a number of days, most of the plaintiffs were charged in court, several with treason offences and others with some minor offences. The plaintiffs complained of having suffered physical and psychological torture, and also having suffered loss and damage as a result of the incarceration.
Held: 1. The plaintiffs had given sufficient particulars of their arrest and confinement, and where applicable arraignment in court. The particulars given were hence sufficient to enable the defendant to know the nature hence the plaintiffs claims were properly before the court. 2. Although it was important to bring proceedings to court as early as possible in order that reliable evidence be brought to court for proper adjudication, there was no limitation period for seeking redress for violation of the fundamental rights and freedoms of the individual under the Constitution of Kenya. 3. Section 74(1) of the Constitution was identical to Article 5 of the Universal Declaration of Human Rights which had also been ratified by Kenya on its definition of torture. 4. The facts of the case showed that there was actual infliction of severe physical pain, caused by physical assault thus all the ingredients of the definition of torture were present. 5. The actions described in the affidavits constituted infringement of the right to protection against inhuman treatment as provided under Section 74(1) of the Constitution. 6. The Truth, Justice and Reconciliation Commission (TJRC), had come into effect after the plaintiffs had filed their suits. The Act did not make any provision for dealing with matters which were already before the court. Secondly, the plaintiffs had come to the court seeking declaratory relief and monetary redress for violation of their fundamental rights and freedoms under the Constitution. The mandate of the court to deal with the plaintiffs claims was provided under Section 84 of the Constitution which was the supreme law of the country. 7. The court had the powers to award damages to an individual whose fundamental rights and freedoms had been violated in exercise of its jurisdiction under Section 84 of the Constitution. However, it was not be possible to value or measure in monetary terms what an individual had undergone through violation of his fundamental rights. In the circumstances of the case, it was appropriate to make a global award in respect of the violations, taking into account the element of punitive damages and in doing so, the rights violated and the period of violations was relevant. 8. Offences such as treason and being members of an unlawful society were serious offences which the government through its law enforcement agencies had the responsibility to investigate, carry out arrests and where appropriate, arraign the perpetrators of the offences in court. Nonetheless, the exercise of these responsibilities, particularly by law enforcement agencies, had to be carried out within the confines of the law. Petition allowed, a total sum of Kshs. 39.2million awarded to all the plaintiffs the highest being KShs. 3 million and the least being Kshs.1 million.
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Customary law Burial customs of the Keiyo
Bench Bulletin
Reported by Andrew Halonyere Customary Law burial dispute Keiyo customary law in regard to burial claim that the deceased subjected himself to Keiyo customs whether he was bound by the said customs whether Keiyo customs was repugnant to justice and morality. Interpretation of Statutes interpretation of section 2 of the Magistrates Court Act - whether the provisions of the said section excluded customary burials from matters that the Magistrates Court had jurisdiction to hear and determine Judicature Act (Cap 8) section 3(2) Magistrates Court Act (Cap 10) sections 2,9. The appellant brought a suit against the respondents before the Chief Magistrates Court in Eldoret seeking an order to inter the remains of her deceased son, simultaneously with filing the suit she filed an application pursuant to section 3(2) of the Judicature Act (Cap 8) , section 9 of the Magistrates Act (Cap 10) and sections 3, 3A of the Civil Procedure Act (Cap 21) and order 39 rules 1,2 and 3 of the Civil Procedure Rules, seeking orders for exhumation of the body and preservation until determination of the suit. The Magistrates Court granted the orders pending determination of an appeal. The Magistrates Court having heard the suit ordered that the remains of the deceased be released to the deceased father and the first respondent (deceased daughter) for burial and that the appellant (mother to the deceased) and other family members were to be involved in the burial arrangements if they so wished. The appellant was dissatisfied with the decision hence the appeal.
Salina Soote Rotich v Caroline Cheptoo & 2 Others Civil Appeal No. 48 of 2010 High Court at Eldoret P.M Mwilu. J July 28,2010
The issues for determination before the High Court were whether Keiyo customary law with regard to burial was pleaded and proved and whether the deceased was subject to such custom.
The High Court suo motu raised the issue of whether the provisions of section 3(2) of the judicature Act (Cap 8) as read with section 2 of the Magistrates Court Act (Cap 10) donated to the Magistrates Court jurisdiction to determine customary law burial disputes.
Held: 1. The deceased was a Keiyo who had subjected himself to the customs of his father and forefathers and who became incapable of divesting himself from the customs of his people. He was for all practical purposes bound by those customs. Keiyo customs with regard to burial were not repugnant to justice and morality and they were not inconsistent with any written law, therefore a Keiyo man had to be buried by his people and could not be buried at his in-laws as that was a taboo for the Keiyo community. 2. Section 2 of the Magistrates Court Act (Cap 10) provided that unless the context otherwise required, a claim under customary law meant a claim concerning any of the following matters under African customary law, Land held under customary tenure, marriage, divorce, maintenance or dowry, seduction or pregnancy of an unmarried woman or girl, enticement of or adultery with a married woman, matters affecting status, and in particular the status of women widows and children, including guardianship, custody, adoption and legitimacy and Intestate succession and administration of intestate estates so far as not governed by any written law . Those provisions clearly excluded customary burials from matters that the Magistrates Court had jurisdiction to hear and determine. The word means appearing at the definition part of section 2 of the Magistrates Act (Cap 10) was inclusive and excluded all matters not mentioned therein, therefore the Magistrates Court had no jurisdiction to hear and determine the case, such jurisdiction rested with the High Court which had unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as would be conferred on it by the constitution or any other law. 3. Obiter Whilst appreciating the role Christianity has played in affecting customs to the extent that some customs have indeed been disregarded, some modified and others changed, Christianity has not totally eradicated customs and it is unlikely to do that any time soon, if ever. There are good customs and there is always a purpose for the practice of a custom. 4. Obiter It is now urgent and opportune, in my humble view, that parliament does consider it a matter of priority to legislate a law governing burials in this country, a law applicable to all the people of Kenya. This, once done, will bring uniformity in burials amongst the people of Kenya and ease the work of the courts. May that time come soon. Appeal succeeds, the remains of the deceased was to be released to the appellant for burial in accordance with Keiyo Customary Law. Application allowed. Advocates Mr. Nabasenge Advocate for Appellant Mr. Omusundi - Advocate for Respondent.
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Election petition - Jurisdiction of election court
Bench Bulletin
William Maina Kamanda v Maragaret Wanjiru Kariuki & 2 others Election Petition No 5 of 2008 High Court at Nairobi P.Kihara Kariuki J July 30, 2010 Election Petition declaration - application brought by the petitioner seeking to be declared the member of parliament for Starehe Constituency where the petitioner had earlier on filed an election petition that sought to nullify the election of the 1st respondent as a Member of Parliament allegations that the parliamentary and presidential elections were flawed and tainted with illegality whether the election was conducted in accordance with the law whether the petitioner could be declared as the Member of Parliament for starehe Constituency in place of the 1st respondent Section 44(1)(a)Constitution of Kenya; Section 30(1) National Assembly and Presidential Elections Act; Rule 4(3) & (7) of the National Assembly and Presidential Elections(election Petition) Rules The petitioner filed an election petition where he raised several complaints against the respondents among them, that he garnered the highest number of valid votes cast yet the Returning Officer had declared the 1st respondent who had received fewer votes as the winner; that the Returning Officer had not announced all the results of the parliamentary candidates; that the statutory forms had not been duly signed by the presiding Officers or their deputies to authenticate the accuracy of the results and that they were also not signed by the agents of the candidates as required by law. Reported By Emma Kinya
The petitioner averred that there had been non compliance with the Constitution, National Assembly and Presidential Elections Act (NAPE) and the Election Offences Act and further, that the difference between the total votes cast for the Parliamentary elections and the Presidential elections was prima facie evidence of a flawed Parliamentary election. He relied on that ground to apply for scrutiny and recount of the votes cast which was allowed by High Court. The petitioner also alleged that the results that he received from his agents indicated that he had won Parliamentary elections in the constituency against the 1st respondent. He further stated that the 1st respondent was captured on camera two days after the election complaining that the Parliamentary elections had been rigged. According to him, the tallying process of the votes cast in starehe constituency was flawed and tainted with illegality and therefore had to be declared null and void. It is for these reasons that the petitioner brought the above application seeking to be declared the Member of Parliament for Starehe Constituency in place of the 1st respondent.
Held: 1.The jurisdiction of the petition court was limited to determining only the question whether the person had been validly elected as a member of the National Assembly and that could only have related to a sitting member who was declared by a Returning Officer at an election as having been elected. There was no other question contemplated by Section 44(1) (a) of the Constitution of Kenya. 2.The 1st respondent had not been validly elected as the Member of Parliament for the Starehe Constituency and therefore, her election was declared null and void. 3.No credible evidence was produced to support the allegations of electoral offences alleged to take place during the voting and tallying process. Petition allowed
However, the 1st respondent denied the allegations made against her. The issues before court were whether the 1st respondent was validly elected as the Member of Parliament for Starehe Constituency and whether the court had the jurisdiction to declare the petitioner as the Member of Parliament for Starehe Constituency in place of the 1st respondent.
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High Courts jurisdiction over cases relating to the constitution review process
Bench Bulletin
Mary Ariviza v Interim Independent Electoral Commission of Kenya & another [2010] eKLR Misc. Civil Application No. 273 of 2010 High Court at Nairobi Okwengu J August 24, 2010 Judicial Review - certiorari-application to quash a gazette notice on referendum results-application on the ground they were not published according to the law-prayer to prohibit the promulgation of the proposed Constitution of Kenyawhether the court could grant the orders sought. Jurisdiction - Jurisdiction of the High Court- matters arising from the Constitutional review process original jurisdiction on matters arising out of the Constitutional Review process vested on the Interim Independent Constitutional Dispute Resolution Court (IICDRC) whether the special jurisdiction of the High Court to determine matters of judicial review conferred under the Law Reform Act was limited- where the applicants complaint related to the management of the referendum process after the voting- where Section 46(1) of the Constitution of Kenya Review Act gave jurisdiction to the IICDRC to issue appropriate remedies- whether the matter fell within the conduct of the referendum and could be brought by way of petition before the IICDRC -whether the application was within the mandate of the CourtConstitution of Kenya Review Act Sections 43(1), 46(1), 60 A (1). The applicant brought a judicial review application seeking to quash a Gazette Notice in the Kenya Gazette which published a notice of the certificate of results of the referendum held on August 4th 2010. The applicant argued that the results were not published according to the law. The applicant further made an application for leave to apply for orders to prohibit the promulgation of the proposed Constitution of Kenya by operation of the law and the publication of its text in the Kenya Gazette which leave was to operate as a stay of the promulgation of the new law. Reported By Njeri Githanga
It was the applicants case that regulation 36(1) (d) of the Constitution of Kenya Review (Referendum) Regulation 2010, which provided for the publication of the referendum results, in the format set out in schedule 2 of the Constitution of Kenya Review (Referendum) Regulations 2010, was ultra vires section 43(1) of the Constitution of Kenya Review Act 2008. Secondly, she argued that the Gazette Notice which purported to be a certificate of the results of the referendum did not conform to the format set out in schedule 2 of the Constitution of Kenya (Referendum) Regulations 2010 and finally, that there had been some contradictory reports regarding the publication of a valid notice of the final results of the referendum. The 1st respondent and 2nd respondent raised a preliminary objection to the hearing of the application on the issue of jurisdiction. It was their argument that the High Court had no jurisdiction to hear the application filed before it. They based their argument on section 60A (1) of the Constitution which established the Interim Independent Constitutional Dispute Resolution Court (IICDRC) with the exclusive original jurisdiction to hear and determine all and only matters arising from the Constitutional review process. They argued that in so far as matters arising from the Constitutional Review Process were concerned, Section 60A(1) of the Constitution, explicitly ousted the unlimited original jurisdiction granted to the High Court by Section 60 of the Constitution.
It was further submitted that Judicial Review was a special jurisdiction in which the High Court exercised supervisory jurisdiction over acts of the executive. In the application in question, both the law and the constitution were express on the authority and jurisdiction of the High Court and the act complained of was not a normal executive act which could be subject of judicial review.
The applicant on the other hand submitted that Section 60 of the Constitution set out the High Court of Kenya as a Superior Court of record, as opposed to the IICDRC. She argued that the only jurisdiction of the High Court which was limited by Section 60A of the Constitution was the civil and criminal jurisdiction, to the extent that it touched on the Constitutional Review Process. She maintained that the special jurisdiction of the High Court to determine matters of judicial review conferred under the Law Reform Act was not limited. The applicant further contended that that under Section 46(1) of the Constitution of Kenya Review Act, the only relief which could be granted by the IICDRC, was in relation to a petition challenging the conduct or result of the Referendum. These powers, according to the applicant, did not include powers to quash the Gazette Notice or the promulgation of the Constitution.
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Held: 1. Section 60A (1) of the Constitution expressly suspended the jurisdiction of the High Court to deal with matters relating to the Constitutional Review process. 2. It was evident that there was a deliberate action on the part of the legislature through Section 60A of the Constitution, to create a special court other than the High Court, with a specific mandate, of hearing disputes concerning Constitutional Review Process for a given period. In order to achieve that purpose, the Legislature deliberately temporarily suspended the powers of the High Court with regard to the Constitutional Review Process and gave the powers to the IICDRC. 3. The powers of the High Court which were suspended during the lifetime of the IICDRC, were not just original jurisdiction of the High Court in regard to criminal and civil matters relating to the Constitutional Review Process, but also included all other powers specified in Section 60 as relates to the Constitutional Review Process. Such powers included the powers of the High Court of Judicial Review which were donated through the Law Reform Act Cap 26 in so far as such power related to the Constitutional Review Process. 4. The applicants cause of action could not fall under Section 44 of the Constitution of Kenya Review Act 2008 as she was only questioning the Gazette Notice publishing the results of the Referendum. The section did not limit the petitions challenging the referendum to merely the results of the referendum. It included the conduct or results of the referendum. 5. The court defined conduct as the manner in which a person behaves and the directing or managing of something. That meant the conduct of the referendum by IIEC included the management of the process until conclusion when the results of the referendum became final and were declared in accordance with Section 43 of the Constitution of Kenya Review Act. Since the applicants complaint related to the management of the referendum process after the voting, it fell within the conduct of the referendum and could be brought by way of petition before the IICDRC, in accordance with Section 44 of the Constitution of Kenya Review Act 2008. 6. Section 46(1) of the Constitution of Kenya Review Act 2008 gave jurisdiction to the IICDRC to issue any appropriate remedies. Application dismissed. Right to bail for capital offence suspects under the new Constitution Republic v Taiko Kitende Muinya Criminal Case No.65 of 2010 High Court of Kenya at Nairobi F.A.Ochieng J. September 2, 2010 Reported by Njeri Githanga
Constitutional Law - rights of an accused person bail application for bail pending trial accused person charged with murder-right of an arrested person to be released on bond or bail-a new Constitution having been passed under which all offences were bailable-where one was only entitled to be released on reasonable conditions- principals to be considered by the court before granting an applicant bail where the deceased was a son to the accused -whether the applicant was entitled to bail pending trial- Constitution of Kenya, 2010 Article 49(1) (h). The accused person had been charged with murder to which he pleaded not guilty He consequently sought to be released on bail under the Constitution of Kenya 2010 on the ground that there was no reason to warrant any conclusion that he could abscond if he was granted bail. The state conceded that indeed the Republic of Kenya had earlier ushered in a new Constitution under which there was no category of offences which had been classified as being non-bailable. However, the State contended that there were compelling reasons to warrant the deprivation of bail to the accused person.
Held: 1. Under Article 49(1) (h) of the Constitution of Kenya, 2010 an arrested person had the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there were compelling reasons not to be released. An arrested person was hence entitled to be released pending either his being charged or his being tried. Therefore, even before a person who was under arrest was charged, he was entitled to ask that he be released on bond or bail. 2. Although an arrested person was entitled to be released on bond or bail, the court could decline to release him in appropriate cases as one was only entitled to be released on reasonable conditions. What was reasonable would be determinable by references to the facts and circumstances prevailing in each case. The appropriateness or otherwise was no longer pre-determined by statute, as was the case prior to August 27, 2010 when all persons charged with offences carrying death sentences could not be granted bail or bond pending trial. The question as to whether or not any particular case disclosed compelling reasons to deny an arrested person his right was to be determined by the court. 67
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3. Although the Constitution did not cite the seriousness of the offence with which an accused was charged as a factor, it was undoubtedly a relevant factor. The sentence which the offence attracted was also a factor to be taken into account and lastly, the relationship, if any, between the accused person and the potential witnesses was another factor. 4. An accused person would be more inclined to abscond if the charge against them was serious, and if the sentence was heavy. Where the accused was a person who was either related to the witnesses or a person who stood in a position of influence vis--vis the potential witnesses, there could arise a legitimate anxiety about the impact he might have on the witnesses, if he was released pending trial. 5. In the application in question, the deceased was a son to the accused and it had been alleged that the accused had absconded from home for about 2 months. Furthermore, the offence of murder was so serious that it still attracted the death sentence, upon conviction. Application dismissed
Kerosi Ondieki v Minister of State for Defence and another Petition No. 181 of 2010 In The High Court of Kenya at Kisii D. Musinga J. September 20, 2010 Constitutional Law - interpretation of various provisions in the Bill of Rights-recruitment into the military-application for a temporary injunction to restrain the 1st respondent from recruiting service men/women and constabularies into the armed forces in contravention of the Constitution - application on the ground that the conditions set out for recruiting into the armed forces manifestly and grossly contravened or violated the Bill of Rights as contained in Chapter 3 of the Constitution - where it was alleged that there was discrimination in the requirements for recruitment - whether the requirements stipulated by the 1st respondent for recruitment were discriminatory and thus contrary to Article 27of the Constitution-Constitution of Kenya 2010, Articles 19, 20, 21, 22, 23, 27, 28, 36, and 259. Constitutional Law - interpretation of the Constitution-Constitutional duties of the Defence Force- where one of the factors that determined the strength of a Defence Force was the quality of the people serving therein- whether fundamental rights and freedoms were absolute or whether they could be limited by other reasonable and justifiable considerations where the alleged discrimination was in the interest of the health of the recruits -whether the requirements for the recruitment were discriminatory- Constitution of Kenya 2010, Article 241 (3). Constitutional Law - fundamental rights and freedoms-locus standi to bring such applications-scope of persons to enforce fundamental rights and freedoms in the Bill of Rights- petition brought through the petitioners advocate-whether such a procedural technicality could cause the petition to be struck out-Constitution of Kenya 2010, Article 22, 159(d) The petition was filed following an advertisement for recruitment of service men/women and constabularies into the armed forces on September 14, 2010 in the The Standard newspaper. The petitioner sought to have the court issue a temporary injunction to restrain the 1st respondent from recruiting service men/women and constabularies into the armed force s in contravention of the Constitution of Kenya. The application was made on the grounds that the advertisement in its entirety was unconstitutional. It was submitted that the conditions set out for recruiting into the armed forces manifestly and grossly contravened and violated the Bill of Rights as contained in Chapter 3 of the Constitution of Kenya. In the advertisement the conditions for recruitment were stated as: Conditions for Recruits (1) (2) (3) (4) (5) (6) (7) Reported by Njeri Githanga
Constitutionality of military recruitment exercise
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Must be Kenyan Citizens. Membership in boy scouts and girl guides will be an added advantage. Age Between 18 and 26 years old. Education a minimum of mean grade D (Plain) in KCSE. Be medically fit. Have no criminal record. Minimum Height 5 ft 3 in (5 3). Minimum Weight:

(a) (b) (8) (9) Men 54.55 Kg(120 lb) Women 50.00 Kg (110 lb). Women candidates must NOT be pregnant. Potential candidates must turn up in appropriate running gear.
Bench Bulletin
It was the petitioners view that vulnerable Members of society referred to in conditions 2, 4, 6, 7, and 8 of the advertisement had been denied their constitutional rights. The petition was opposed on the ground that the petitioner lacked legal standing to bring the petition and further that the petition ought to have been by the petitioner and not by his advocates. It was further submitted that the petitioner had not shown that he had any personal interest in the intended recruitment and neither did he fall within the category of the persons referred to in clause (2) of Article 22 of the Constitution. It was also contended that the conditions set by the Armed Forces in the aforesaid advertisement had not violated any constitution provision and in particular Articles 19 and 27 as fundamental rights were not absolute and in construing rights of an individual other peoples rights had to be also taken into account.
Held: 1. Article 22 stretched to the fullest the scope of persons who had the right to come to court to enforce any right or fundamental freedom in the Bill of Rights. As long as a person could demonstrate to a court that right or fundamental freedom in the Bill of Rights had been denied, violated or infringed or was threatened then he met the minimum threshold required under the law and therefore had locus standi. It was preferable to have citizens who were zealous in protecting their Constitution Rights and freedom than a situation where the courts restricted enforcement of such rights. 2. Though the petition ought to have been by the petitioner and not by his advocates, Article 159 (d) of the Constitution provided that Justice had to be administered without undue regard to procedural technicalities. The defects pointed out by the respondents could not cause the court to strike out the petition. 3. In considering whether the requirements for the recruitment were discriminatory and thus contrary to Article 27 of the Constitution, the court had to take into account the constitutional duties of the Defence Force as outlined under Article 241 (3). 4. Defence Forces had to be enabled in every respect to fulfill their role which included defence and protection of the sovereignty and territorial integrity of the Republic. One of the factors that determined the strength of a Defence Force was the quality of the people serving therein and such service started with recruitment. The defence Forces had to be in a position to recruit Kenyans whom it believed were capable to competently undertake the duties expected of personnel in the force. 5. Selection of recruits was preceded by vigorous physical examination. Medical examination was also a mandatory requirement. Potential candidates were also required to compete in running as part of the selection criteria. A candidate who was physically or medically unfit would not only fall such a test but could also endanger his/her life in trying to pass the selection process. Thus such rights had to be protected. 6. Article 24 and 27 did not show that the conditions which had to be met by recruits were discriminatory as the alleged discrimination was in the interest of the health of the recruits and in the case of pregnant women the rights of the unborn child Article 26 recognized that the life of a person began at conception. No right or fundamental freedom was absolute as the right could be limited by other reasonable and justifiable considerations. 7. Though the conditions that required to be met by recruits would of necessity cause several young men and women to be ineligible, it had to be borne in mind the work of the Armed Forces was not ordinary civil employment. The Armed Forces had to be given the liberty to recruit only those Kenyans who were fit for the job. The preamble of the Constitution recognized the Almighty God as the God of all creation. There was need to acknowledge that the Almighty God granted different gifts, qualities and capabilities to different people so that they could excel in different jobs and/or occupations. Application dismissed; intended recruitment ordered to go on as scheduled. Constitutionality of committal to civil jail
In Re the Matter of Zipporah Wambui Mathara [2010] eKLR Bankruptcy Cause No. 19 of 2010 High court at Nairobi M. K. Koome J. September 24, 2010 Bankruptcy - stay of execution - application for stay of execution of order of committal to civil jail pending bankruptcy proceedings- application on the ground that the applicant was not in a position to appear before the official receiver to Reported by Njeri Githanga
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provide information for the composition and setting up of creditors meeting due to her incarceration-where the court had the discretion to issue an order of stay of execution in order to give the official receiver the opportunity to consolidate and administer the estate of the debtor whether the application could be allowed- Bankruptcy Act Sections 9, 11 and 100. Constitutional Law - supremacy of the Constitution- application of international law-where International Treaties, and Conventions ratified by Kenya was listed a source of Kenyan law in the new Constitution- Article 11 of the International Covenant on Civil and Political Rights prohibiting imprisonment merely on the ground of inability to fulfill a contractual obligation-where the applicant was a debtor who had been committed to civil jail-whether the Constitution was above the Civil Procedure Act which made the provisions for recovery of money and execution by way of committal of the judgment debtor to civil jail as one of the means of enforcing a judgment-Constitution of Kenya 2010, Section 2(6) -Article 11 of the International Covenant on Civil and Political Rights. The applicant/debtor had been committed to serve a jail term due to her failure to satisfy a decretal sum of Kshs.339, 855.00 owed to the respondent pursuant to a judgment against her. She later filed Bankruptcy proceedings where a receiving order was issued in respect of her estate. She hence brought an application for stay of execution of order of committal to civil jail pending the bankruptcy proceedings.
It was the applicants case that since a receiving order had been issued against her in the matter, her estate vested upon the official receiver and therefore she had no capacity to pay the decretal amount. Secondly, she submitted that she required to appear before the official receiver in person to provide information on her estate for the proper administration of her estate by the official receiver but she was not in a position to due to her incarceration. It was the applicants case that under Article 2(6) of the Constitution of Kenya 2010, any Treaty or Convention ratified by Kenya formed part of the Laws of Kenya under the Constitution. It was contended that that provision imported the Treaties and Conventions that Kenya ratified, especially the United Nations International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972. According to Article 11 of that Convention, no one could be imprisoned merely on the ground of the inability to fulfill a contractual obligation. It was further submitted that due to the hierarchy of the laws, the Constitution was supreme therefore the Civil Procedure Act that provided for committal to civil jail as a means of forcing a debtor to satisfy a contractual obligation was against the spirit of the Constitution and, International Human Rights Law that protected and promoted basic freedoms. Lastly it was argued that under Section 9 of the Bankruptcy Act after the receiving order was made, the Official Receiver was supposed to take over the property of the debtor which could not be attached except with the leave of the Court.
On the other hand, the application was opposed by the respondent who alleged that the debtor was deliberately refusing to pay the debt as she had promised to pay the debt by installments of Kshs. 50,000/ and due to her failure to pay execution was issued by way of committal to civil jail which was provided for under the Civil Procedure Act. On the application of the International law, the respondent urged the Court to consider the Civil Procedure Act which made the provisions for recovery of money and execution by way of committal of the judgment debtor to civil jail as one of the means of enforcing a judgment.
Held: 1. The court had the discretion to issue an order of stay of execution in order to give the official receiver the opportunity to consolidate and administer the estate of the debtor. The argument by counsel for the respondent that the debtor was refusing to pay the debt did not hold because the application in question was not an application to set aside the receiving order. 2. By virtue of Section 2(6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya had ratified, were imported as part of the sources of the Kenyan Law. Thus the provision of Article 11 of the International Covenant on Civil and Political Rights which Kenya had ratified was part of the Kenyan law. That covenant made provisions for the promotion and protection of human rights and recognized that individuals were entitled to basic freedoms to seek ways and means of bettering themselves. It therefore meant that a party, who was deprived of their basic freedom by way of enforcement of a civil debt through imprisonment, was also denied their ability to move and even seek ways and means of repaying the debt. 3. There were several methods of enforcing a civil debt such as attachment of property. An order of imprisonment in civil jail was meant to punish, humiliate and subject the debtor to shame and indignity due to failure to pay a civil debt. That went against the International Covenant on civil and political rights that guaranteed parties basic freedoms of movement and of pursuing economic social and cultural development. Application allowed
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Due process and rendition of suspects to foreign jurisdiction Mohamed Aktar Kana v Attorney General Constitutional Application No. 544 of 2010 High Court at Nairobi (Nairobi Law Courts) M. Warsame J. September 28, 2010 Reported by Njeri Githanga
Bench Bulletin
Constitutional Law - rendition-right of every citizen to be subjected to due process of the law-application to stop transfer of a suspect from the Kenyan jurisdiction-whether the court could order the Minister for Internal Security not to surrender the applicant/suspect to Uganda or any other jurisdiction- Constitution of Kenya, 2010 Articles 19, 20, 21, 22, 23, 27, 28, 36, and 259. The applicant, a Kenyan citizen, was suspected to have participated in a terrorist attack in the Republic of Uganda. The applicant sought to be subjected to the due process of the law on the ground that that every citizen was entitled to be subjected to due process no matter the gravity and seriousness of the offence he was facing or was likely to face. It was the applicants case that there was a likelihood that he would be transferred from the courts jurisdiction by the government of Kenya as it had been the tenacity of the government of Kenya through its agents to justify such an action by saying that there was an agreement to transfer suspects within East Africa provided there was a request by one member country.
Held: 1. The new constitution had enshrined the Bill of Rights of all citizens and to say one group could not enjoy the right enshrined under bill or rights was to perpetuate a fundamental breach of the constitution and to legalize impunity at very young age of the constitution. That kind of behaviour, act or omission was likely to have far and serious ramification on the citizens of the country and the rulers. 2. The application raised the basic issue of whether a President who had just sworn and agreed to be guided by the provisions of the constitution could allow his agents to breach it. All those were issues which required sober and attentive judicial mind in order to address the rights and obligations of all parties involved. 3. The application was a clear indication that the security arms of the country had not tried to understand and appreciate the provision of the new Bill of Rights. It also showed earlier years of impunity were still thriving in the executive arm of the government. Application allowed, applicant ordered not to be transferred from the courts jurisdiction
Zuhura Suleiman v the Commissioner of Police and 2 others Misc. Criminal Application No. 441 of 2010 High Court of Kenya at Nairobi A. O. Muchelule J. September 30, 2010 Constitutional Law - Habeas Corpus - application for writ of habeas corpus -nature and scope of the order of habeas Corpus - where the subject of the application, a terrorist suspect, was absent from the jurisdiction of the High Court whether the Habeas Corpus application could be declared spent- Criminal Procedure Code, Section 389 (1) - Constitution of Kenya, 2010 section 81 (3)(f). Constitutional Law - extradition-right of every citizen to be subjected to due process of the law-application to bring back a suspect to the Kenyan jurisdiction-the suspect having been arrested and removed from the Courts jurisdiction without a warrant for arrest having been issued-where all extradition provisions had been disobeyed whether the suspect had been illegally arrested, detained and removed from Kenya- Constitution of Kenya, 2010 section 81 (3)(f). The applicants husband (the subject) had been arrested by a squad of Police Officers from Anti-Terrorism Police Unit (ATPU) under the suspicion of being a terrorist. The next day after the subject was arrested; the applicant found out that the subject had already been taken to an unknown destination. The applicant through her advocate hence came to 71 Reported by Njeri Githanga
Due process and extradition of suspects
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court under Section 389 of the Criminal Procedure Code and Rule 2 of the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules seeking summons to be issued against the Commissioner of Police and the Commandant of the ATPU to appear before the court in person or through their advocates together with the original of any warrant or order for the detention of the subject and show cause why the subject could not be released forthwith.
It was the applicants case that whatever the offence the subject was suspected to have committed, he was entitled to be treated in accordance with the laws and Constitution of Kenya which provided for being charged within 24 hours, not being held incommunicado and not being taken out of jurisdiction without the conduct of extradition proceedings. It was submitted that no basis had been provided to link the subject with the bombings and that the removal of the subject from Kenya to Uganda had not accorded with the provisions of section 81 (3)(f) of the Constitution and the extradition requirements under Police Standing Orders (Cap 58) and the Extradition (Commonwealth Countries) Act (Cap 77). On the other hand, it was the respondents case that after the twin bombing that took place in Kampala in Uganda on July 11, 2010 both the ATPU and the Ugandan Authorities had commenced investigations and in the course of the investigations, they had gathered credible evidence that linked the subject with the bombings. The ATPU hence arrested the subject and on the following day took him to Uganda where they handed him over to the Senior Commissioner of Police Deputy Director CID/Crime Intelligence at CID Headquarter Kibuli. It was contended that since the subject was no longer in the custody of the respondents and was outside the jurisdiction of the court the application was misconceived and had to be dismissed as the order of habeas corpus could not issue.
Held: 1. Even where it was impossible for the respondents to produce the body of the subject because he had already been removed to Uganda they were still under a duty to make a return setting out the facts unequivocally and distinctly and showing the reasons why they were unable to obey the order. 2. In the case in question, the respondents removed the subject to Uganda before the service of order. It was hence incumbent upon the respondents to state the reasons why in the first place they had arrested the subject and to show they had lawfully handed him over to Uganda authorities. 3. The respondents did not disclose the nature of evidence the police held regarding the subjects connection in the bombings to be able to hand him over. The subject was transferred in less than 12 hours of his arrest there was hence no opportunity afforded for him to apply to the Kenyan Courts for release neither was there any formal communication with his family or information that he was being taken out of jurisdiction. As a Kenyan citizen who had immunity against expulsion there should have been a formal request by the Ugandan authorities for him but there was none. There was no warrant issued by a court in Uganda seeking his arrest. All extradition provisions were hence disobeyed in his connection indicating that he was illegally arrested, detained and removed from Kenya. 4. Whether one was a terror suspect or an ordinary suspect, he was not exempted from the ordinary protection of the law. Whatever the security considerations that the Police had in the case, the recognition and preservation of the liberties of the subject was the only way to reinforce the countrys commitment to the rule of law and human rights. Police had to have the capacity to battle terrorism and enforce human rights at the same time as the two were not, and could not, be incompatible. 5. There was no justification for the treatment handed down to the subject by the respondents. The return made was not sufficient and the arrest, detention and removal of the subject from Kenya to Uganda was illegal and it transgressed his fundamental rights and liberties. These rights and liberties could not be given up for expediences sake. 6. Terrorism had been both a challenge and a nightmare to law enforcement agencies in Kenya and the entire World and it was a complex and ever-changing phenomenon that had left vicious consequences both to lives and to property. Application allowed in part as the applicant was out of the courts jurisdiction
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Application for bail on a capital charge
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Reported by Njeri Githanga Constitutional law-rights of an accused person bail application for bail pending trial accused person charged with murder-right of an arrested person to be released on bond or bail-a new Constitution having been passed under which all offences were bailable-where one was only entitled to be released on reasonable conditions- principles to be considered by the court before granting an applicant bail-whether the applicants were entitled to bail pending trial- Constitution of Kenya, 2010 Article 49(1) (h) Constitutional law-supremacy of the Constitution-where the offence of murder was non-bailable under section 123 of the Criminal Procedure Code -Article 49 of the Constitution 2010 providing all offences were bailable-whether Article 49 of the Constitution 2010 superseded section 123 of the Criminal Procedure Code- Constitution of Kenya, 2010 Article 49Criminal Procedure Code (Cap 75), section 123 The applicants had been charged on October 13, 2008 with the offence of murder contrary to Section 203 as read with Section 204 of the Penal code. During that time under Section 123 of the Criminal Procedure Code, the offence of murder was non-bailable and they were therefore remanded. However, with the promulgation of the new Constitution on August 27, 2010, the law changed and under Article 49 of the Constitution, it was possible for an accused on a murder charge to apply for and be released on bail/bond. Consequently in the light of the New Constitution and the said provision, the applicants exercised their right to apply for bail pending the finalization of the trial. It was submitted for the applicants that they were presumed to be innocent until proven guilty. It was stated that the two applicants were senior citizens, born and bred in Kenya and with their children and spouses in country and therefore they were unlikely to abscond.
Republic v Danson Mgunya and Another Criminal Case No. 26 of 2008 High Court of Kenya at Mombasa Mohammed Ibrahim J October 15, 2010
Counsel for the State opposed the application for bail and submitted that Article 26 (3) of the new Constitution saved the death sentence which was still the sentence for murder. As a result, the severity of the sentence had to be considered and the resulting possibility of flight or absconding for fear of being sentenced to death and executed if convicted. According to the State the right to bail was not absolute and the court had to exercise its discretion judiciously. It was submitted that in the case in question, there were compelling reasons to deny bail. First, that the case was of great public interest and secondly the accused persons were exposed to a risk of being harmed by the public if released on bail. It was emphasized that the court was under a duty to protect the suspects. The State Counsel cautioned the court not to be seen as treating the suspects favorably for the reason that they were public servants. He was concerned that public would lose faith in the justice system if bail was granted. He concluded that the case which had proceeded expeditiously was at the helm of conclusion therefore the temptation to run away was a significant consideration.
Held; 1.The Constitution had to be interpreted in a manner that enhanced the rights and freedoms granted and enshrined rather than in any manner that curtailed them but each case had to be decided on its own circumstances. 2.Article 49 of the Constitution of Kenya 2010, provided that an arrested person had the right to be released on bond or bail, on reasonable conditions, pending a charge or trial unless there were compelling reasons not to be released. An accused person charged with the offence of murder could hence apply for and be released on bail/bond. 3.Article 49 of the Constitution 2010 superseded section 123 of the Criminal Procedure Code given the supremacy of the Constitution as set out in Article 2 which inter alia provided the Constitution was the Supreme Law of the Republic of Kenya. Any law including customary law that was inconsistent with the Constitution was void to the extent of the said inconsistency, and any act or omission in contravention of the Constitution was invalid. 4.A murder suspect had a constitutional right to be released on bail. That was an inalienable right and could only be restricted by the court if there were compelling reasons for one not to be released. However, there were no rules or procedures formulated to spell out parameters within which bail applications for capital offences would operate. In some jurisdictions there were statutory procedures for the evaluation of bail applications and the criteria to be used was clearly set out. While in others there was a practice that affidavit evidence be tendered and considered when considering a bail application. 73
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5.Once an accused person applied for bail in a murder case, the same principles and consideration in bail applications in respect of any other criminal offences were applicable. The criteria included but not limited to; a. the nature of the charges; b. strength of the evidence which supported the charge; c. gravity of the punishment in the event of conviction; previous criminal record of the accused if any; d. the probability that the accused would not surrender himself for trial and e. The likelihood of the accused interfering with witnesses or suppressing any evidence that would incriminate him. Though the criteria was not in any way exhaustive, most of the criteria set out above were reasonable and was to be applied with a caveat that the primary criteria was whether the accused would be available at the trial.
6.Under the Constitution, an arrested person had the right to be released on bond or bail on reasonable conditions pending a charge or trial. The singular exception was that there had to be compelling reasons not to be released. 7.An accused person under arrest or detention had a right to challenge the lawfulness of his detention before the court of law. In addition, he had the right to be brought before an independent and impartial court not later than 24 hours after his arrest to be charged or to be informed of the reason for his further detention failing which he had to be released. The burden was on the State to take the arrested person before the court and to prove that the accused though entitled to be released on bail ought not to be released because of the existence of compelling reasons which had to be stated, described and explained. If it was based on belief, then the justification had to be demonstrated, and that had to be done within 24 hours unless the arrest was not on an ordinary court day in which case it had to be done by the end of the next court day. 8.If the prosecutor objected to the release of the accused from detention during the pendency of a trial, then at the first instance, the burden would be on the prosecution and not on the accused person to prove or at least demonstrate the existence of the compelling reasons. 9.From the facts and circumstances of the case, the accused persons were unlikely to leave the jurisdiction of the court given that they were relatively senior citizens who were approaching retirement age. The allegation about the applicants security and possibility of being harmed by the public was not supported by any evidence neither was the court persuaded by the claim of the possibility of interference with witnesses or destruction of evidence. In the event that happened during the period when the accused persons were free, the state was at liberty to apply to court for relevant orders. 10.There were no compelling reasons for the continued detention of the accused. It did not matter that the application was made when the case was about to end. Liberty was precious and that no ones liberty could be denied without lawful reasons and in accordance with the law. Application allowed Mr. Odera for the 2nd Accused Dr. Khaminwa for the 1st Accused Mr. Muteti for the state. Dickson Daniel Karaba v John Ngata Kariuki & 2 others Election Petition No. 3 of 2008 High Court at Nairobi October 22, 2010 Warsame J. Election Law election petition parliamentary election petition seeking to nullify and declare void the election of the first respondent as Member of Parliament for Kirinyaga Central Constituency irregularities in elections petitioner citing irregularities in the conduct of elections whether the first respondent was validly elected National Assembly and Presidential Elections Act(Cap 7) Election Law electoral documents election result manner in which results were recorded Presiding Officer required to record the total number of votes cast in favour of each candidate and to sign the declaration set out in Form 16A certifying the results where the said Form 16A had not been signed by the presiding officer or stamped by an Electoral Commission of Kenya (ECK) stamp and did not bear the names of the presiding officer whether a Form 16A which was not signed by a presiding officer could constitute valid results which could be accepted for tallying by a Returning Officer - need for all the presiding officers to sign and stamp the Form 16As for the same to be considered valid whether the petitioner had established to the required standard of proof that the 2nd respondent had accepted invalid results which he tallied and included in the final results as contained in Form 17A Reported by Emma Kinya. Election petition - Irregularities in elections
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Election law election petition invalidation of elections requirement that no election should be invalidated because of minor irregularities which do not substantially affect the outcome of the election as reflected in the official result where it was clear from the evidence that the electoral malpractices had affected the credibility of the results that were announced and published by the 2nd and 3rd respondents duty of the 2nd and 3rd respondent to ensure that the election process was transparent free and fair - whether the election process was in accordance with the law Evidence documentary evidence evidence that all the original election materials required to be produced before court by the Returning Officer under rule 19 of the National Assembly Elections (Election Petition) Rules were all destroyed in a fire that burnt down the offices of the 2nd and 3rd respondent where Photostat copies of the original Form 16, 16As, 17, 17As were obtained from the offices of the African Union whether the Photostat copies which were adduced as secondary evidence were admissible as evidence of the content of the originals Section 68(1) Evidence Act (Cap 80) The petition concerns the parliamentary election that was held in Kirinyaga Central Constituency where the 1st respondent was declared the winner. The petitioner was not satisfied with the results and therefore petitioned seeking that all the votes cast in Kirinyaga Central be scrutinized, counted and tallied to ascertain the true winner of the 2007 elections and also to set aside the election of the incumbent Member of Parliament for Kirinyaga Central Constituency for failure to comply with the provisions of the National Assembly and Presidential Elections act and the regulations under the Act.
The petitioner alleged that the counting and re-tallying of votes was faulty and incorrect, causing an inaccurate number of votes to be attributed to the 1st respondent. He asserted that if all the votes cast in the election had been correctly counted and re-tallied, he would have won the election. He also contended that the Returning Officer committed arithmetic errors and failed in his duties of taking into consideration all the results from each of the polling stations. He further asserted that the results announced in Kirinyaga Central constituency did not reflect the will and wishes of the people of Kirinyaga Central and the petitioner therefore asked the court to declare him the winner of Kirinyaga Central Constituency if a finding was made that the 1st respondent had not been validly elected. He contended that a false declaration of a loser as a winner was an unlawful declaration within the scope of the National Assembly and Presidential Elections Act (Cap 7). The 1st respondent submitted that the petitioner could not rely on photostat copies delivered by the 3rd respondent of Forms 16A and 17A since their accuracy and authenticity could not be ascertained. The 3rd respondent had duly informed the court that all the election materials for the Kirinyaga Central constituency had been gutted by a fire in their offices and the originals of Forms 16A and 17A could not be traced. The photostat copies were therefore obtained from the African Union offices for use in the case. The petitioner in answer argued that the respondents were by conduct estopped from questioning the authenticity and contents of Form 16As and 17A or the weight to be attached to the contents since they were the ones who had delivered the same to court and in any case, the photostat copies could be admitted as secondary evidence in cases where originals had been destroyed. The 1st respondent further submitted that once the result was declared, the election was at an end, so that its validity cannot be questioned.
The issue before court therefore was whether the petitioner had satisfied the threshold for nullifying the election bearing in mind the yardstick and foundations set out in section 28 of the National Assembly and Presidential Elections Act which is to the effect that no election shall be declared null and void by reason of non compliance with the law if it was conducted in accordance with the law or did not affect the result of the election; whether or not the state of being photostat copies rendered Forms 16, 16A,17 and 17A inadmissible as evidence of the contents of the original or in any matter lessen the weight to be attached and whether the failure to produce the documents on the grounds that they were destroyed can reduce the weight, authenticity and veracity of the photocopies tendered in part satisfaction of the 2nd and 3rd respondents statutory duty to court and to parties in this petition. Held: 1.The issue that the petitioner should be declared the duly elected Member of Parliament for Kirinyaga Central Constituency was without merit and therefore rejected. It was not pleaded and it would have been unjust to impose someone on the electorate without sufficient basis. 2.The destruction and loss of the original documents had been satisfactorily proved by the petitioner. Those who had seen or knew the contents of the documents could have proved or disproved the contents of the photocopies provided the court believed them. 3.Section 68(1) of the Evidence Act allowed production of secondary evidence in certain circumstances including when the original had been destroyed or lost such as was the case before court. In the instant case there was no doubt that the copies produced were genuine copies of the original documents. The said copies could thus be used by the parties in order to test the veracity of the issues raised by the petitioner. 75
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4.The 2nd and 3rd respondents had a statutory duty to ensure that the electoral materials were in safe and secure custody pending the dispute concerning the election. They were also under an absolute duty to ensure that the election materials were not destroyed, stolen or lost in mysterious circumstances. As such, they were not allowed to object to the production and use of secondary evidence that they had brought in part fulfillment of their statutory obligation. 5.If the election was conducted such that, it was substantially in accordance with the law, it would not be vitiated by breach of rules or mistake at the polls or the process, provided it had not affected the outcome of the election. The High Court found that a matter was deemed to have affected the outcome of an election if it had changed the direction and will of the people in a particular way or manner as was the case in Kirinyaga Central constituency. 6.A Returning Officer had no discretion or powers to vary or override the results captured in Forms 16A from the polling stations in a given constituency. He also had no powers to change or substitute the result of the candidate as reflected in Forms 16A from the polling stations. In the instant case, there was no doubt that the Returning Officer changed the results allegedly obtained by the petitioner and the 1st respondent as the winner. 7.The system and process employed by the Returning Officer had not guaranteed that the rights of the candidate were taken into consideration and respected. By announcing the 1st respondent as the winner and subsequently changing the results in three different occasions, the Returning Officer had not respected the popular will of the people of Kirinyaga Central. He had a legal obligation enforceable by the candidates and that burden had been clearly abdicated by announcing the 1st respondent as the winner when evidence available was to the contrary. 8.If a duty was imposed upon a party, citizens expected strict performance by ensuring the laws of the land were observed and respected. No immunity could be granted to a person who transgressed on the rights and the liberties of citizens. To announce a person who had not obtained the highest votes as the winner of the election was to deprive or disenfranchise citizens of their rights to choose a person of their choice. In the instant case, the Returning Officer had committed fundamental and substantial error in announcing the 1st respondent as the winner when the evidence on record had not supported that position. 9.There was no adherence and proper observance of the rules and regulations pertaining to electoral process. This was vital for the citizens of Kenya to have faith in the elections entrusted and carried out by the electoral body. It was of paramount importance to ensure that persons entrusted with the legal duty strictly respected the will of the citizens in a given constituency. 10.The High Court divested the 1st respondent of the rights which were illegally bestowed on him by the 2nd respondent declaring him the winner and made a finding that the 1st respondent was not duly elected as a Member of Parliament for Kirinyaga Central Constituency. He benefited from a wrong announcement which amounted to unjust enrichment from an illegal and unlawful process and had therefore to be set aside. 11.The finality of an election result could not validate an election which was a nullity because it had not been conducted in accordance with the rules. A candidate could not be deemed to have been elected legally unless the process was transparent, fair and free from the start to the end. The overwhelming evidence before this court was that the 1st respondent was not the candidate who garnered the highest vote. Petition allowed. Jurisdiction of the Kenyan courts on a charge of piracy on the High Seas
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc. Application No 434 of 2009 Alias Dhodi & 8 others [2010] eKLR High Court, at Mombasa Ibrahim J November 9, 2010 Admiralty law -Piracy -jurisdiction of the Kenyan Courts over piracy on High Seas-applicants charged with the offence of Piracy on High Seas- jurisdiction of the Courts of Kenya extending to every place within Kenya, including territorial waters under section 5 of the Penal Code -where the laws under which the applicants were charged did not provide for an express definition of what constituted the High Seas -whether High Seas was within the territorial waters of Kenya -whether Kenyan Courts had jurisdiction to try the charges against the applicants in the case whether the High Seas were outside the territorial jurisdiction of the Kenyan Courts-Penal Code (Cap 63), Section 5, 69 (1) and 69 (3) Statute law-Interpretation of Statutes courts jurisdiction under the Penal Code- where section 5 of the Penal Code was the defining provision with regard to jurisdiction of the Kenyan Courts in so far as the Code was concerned- jurisdiction of the Courts of Kenya extending to every place within Kenya, including territorial waters- jurisdiction of the courts to try the charge of piracy on High Seas under section 69 (1) of the Penal Code-whether section 69 (1) of the Penal Code was inconsistent with the Section 5 of the Penal Code to the extent that it included the High Seas -whether section 5 overrides Section 69 (1) to the extent of the inconsistency- Penal Code (Cap 63), Section 5, 69 (1) and 69 (3) By Njeri Githanga
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Statute law-Interpretation of Statutes -piracy- Section 69 of the Penal Code having been repealed by the Merchant Shipping Act- definition of piracy in the repealed Section where there was no specific definition given of the offence of piracy jure gentium and therefore the elements of the offence were not given- whether piracy under section 371 of the new Act was the same as piracy jure gentium in the repealed Act- Merchant Shipping Act section 371- Penal Code (Cap 63), 69 (1) and 69 (3) Statute law-repealing of Statutes-transitional clauses where a statute is repealed- Merchant Shipping Act repealing the Penal Code -where there was no clause providing that the repealed Section would not affect the power of the court to convict and sentence the accused persons in respect of the pending piracy cases and offences committed prior to the commencement of the Merchant Shipping Act-whether the jurisdiction of the courts to try the pending piracy cases could be saved in absence of a transitional clause The accused persons had been arrested in the High Seas of the Gulf of Aden in the Indian Ocean by a German Naval Vessel. Having been arrested, the Commander and officers of the German Naval Vessel brought the applicants to Mombasa and placed them in the custody of the Kenyan police and authorities. The accused persons were then arraigned in court and charged with the offence of Piracy contrary to Section 69 (1) as read with Section 69 (3) of the Penal Code where they pleaded not guilty. The trial commenced and the prosecution presented its evidence whereupon the accused persons were put on their defences. At that stage, the accused persons applied for leave to institute judicial review proceedings for an order prohibiting the Chief Magistrate Mombasa or any other Magistrates Court under her from hearing, or otherwise allowing the prosecution of their case arguing that the Kenyan Courts did not have jurisdiction under section 5 of the Penal Code to try them.
The accused persons contended that that the alleged attack took place in/at the Gulf of Aden, and that at no time did the attack proceed to Kenyan waters or Kenyan Territory. Advocate for the accused persons stated that the only law applicable in the case was Section 69 (1) and (3) of the Penal Code and while it was a fact that the entire Section 69 of the Penal Code had been repealed by virtue of Section 454 of the Merchant Shipping Act and a new provision in respect of Piracy came into force through Section 371, there had been no amendment of the charge as may have been required by virtue of Section 214 of the Criminal Procedure Code before the close of the prosecution case.
Counsel for the State on the other hand submitted that the Court had appropriate jurisdiction and was competent to try the case under Section 69 of the Penal Code. He went on to argue that the charge of Piracy in the case was Piracy Jure Gentium and was different from a charge of Piracy by statute. Accordingly, he provided that Piracy Jure Gentium was an offence against the Law of Nations and could be punished by any state or jurisdiction, even landlocked countries. One did not have to have territorial waters or a coast/coastal line to prosecute the offence as it was a crime against all Nations and Humanity. On the issue of Section 69 of the Penal Code being repealed by Section 454 of the Merchant Shipping Act, it was argued that Section 23 (3) (e) of the Interpretation and General Provisions Act saved the repealed section and the trial court had the jurisdiction and power to continue with the present case to its finality. Held; 1.The Kenyan law under which the accused persons had been charged did not provide for an express definition of what constituted the High Seas. The High Seas as contemplated by section 69 (1) of the Penal Code excluded, territorial waters thus taking them outside the territorial jurisdiction of the Kenyan Courts. 2.Section 5 of the Penal Code provided that the jurisdiction of the Courts of Kenya for the purpose of this Code extends to every place within Kenya, including territorial waters. That inferred that the Kenyan Courts had no jurisdiction in criminal cases and in particular in the offences set out in the Penal Code where the alleged incident or offence took place outside the geographical area covered by the Republic of Kenya. 3.The High Seas were not and could not be a place in Kenya or within the territorial waters of Kenya. By definition they were strictly deemed to be outside the jurisdiction of all states in the world or on earth unless some law in the state brought it into their local jurisdiction whether Municipal Law or an International Convention. 4.The Magistrates Court lacked jurisdiction to try the applicants in respect of the charge of piracy under section 69 (1) of the Penal Code. It had no jurisdiction over the matter when the charges were preferred, and when the proceedings took place. The court had acted without jurisdiction when they took the pleas of the Applicants and heard the case up to the close of the prosecution case. The whole process was therefore null and void, ab initio. 5.Section 69 (1) of the Penal Code under which the accused persons were charged provided that any person who, in territorial waters or upon the high seas, commited any act of piracy gentium was guilty of the offence of piracy. That provision was inconsistent with Section 5 of the Penal Code to the extent that it included the High Seas in respect of where the acts of piracy were committed. 6.Section 5 conferred on the Kenyan Courts jurisdiction over matters under the Penal Code and was the defining 77
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provision with regard to jurisdiction of the Kenyan Courts in so far as the Code was concerned. Section 5 of the Penal Code was hence juridically paramount and it had to override Section 69 (1) of the Penal Code to the extent of the inconsistency. However, that did not affect any prosecutions or trials of the offence in territorial waters. The law to that extent was still sound and enforceable and was not fatal to the entire provision until Parliament corrected its clear error in purportedly extending the courts jurisdiction to the High Seas in clear breach of the jurisdictional limits stipulated in Section 5. It was the judicial duty of the court to interpret the said written law and give it its correct legal application and meaning. 7.Section 2 of the Penal Code which was a saving provision did not save the enforcement of acts done in the High Seas as had been unprocedurally attempted by Section 69 (1) of the Code. 8.Section 6 of the Penal Code proved that the jurisdiction of the Kenyan Court was over and limited to acts done or offences committed within the jurisdiction of the court. However, the section made a qualification that where offences were committed partly within and partly beyond the jurisdiction of the courts then the courts assumed legal or legitimate jurisdiction over the matter. If part of the offence was committed within the territorial waters of Kenya, then such would be tried and punished under the Code by the Local Courts. In the case in question, there was no statement in the particulars alleging that the offence took place partly within the territorial waters of Kenya. Also, there were no allegations in the evidence of the 15 prosecution witnesses that such a situation arose. As a result, Section 6 of the Code had no application in the case. 9.If the intention of Parliament was to extend jurisdiction to incidents beyond jurisdiction to the High Seas then it ought to have gone further to legislate expressly in the statutory provisions that matter i.e. sections of the statute. Titles and marginal notes were only of reference and were interpretive tools but not the Law. If that was the intention then there ought to have been an exception to Section 5 that provided the jurisdictional limits thereof did not preclude offences in the High Seas or in the alternative make a specific exception as done in Section 6 of the Penal Code for offences committed partly beyond jurisdiction. The title therefore was of no use on the question of jurisdiction. 10.Section 69 of the Penal Code had been repealed by the Merchant Shipping Act, 2009. By a simple reading of the offence of piracy in the new Act, it became clear that it was not the same definition or description of piracy given in the repealed Penal Code. The piracy envisaged in Section 69 of the Penal Code was piracy jure gentium which was not expressly defined. In the repealed section the offence was also not defined and the court was obligated to find and determine its ingredients through other interpretive sources. It was not possible to state by reading the provision whether piracy defined in section 371 of the new Act was piracy jure gentium as stipulated in the repealed Act. 11.Section 454 (1) of the Merchant Shipping Act which repealed section 69 of the Penal Code did not have an express saving or transitional provision which denied the prosecution the direct and unchallengeable right or advantage of proceeding with the prosecution and the court to continue with the trial. 12.There was no sunset clause providing that the repealed Section would not affect the power of the court to convict and sentence the accused persons in respect of the pending piracy cases and offences committed prior to the commencement of the Merchant Shipping Act. Without such a clause to save the jurisdiction of the court to try the pending piracy cases, the accused persons were entitled to outright and unconditional acquittal. Application allowed, applicants released
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The right of prisoners to vote in a referendum on a new constitution
Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission (2010 eKLR) Constitutional Petition No. 1 of 2010 Interim Independent Constitutional Dispute Resolution Court (IICDRC) at Nairobi (S. N. Mukunya, J. Mohammed, S. Omondi, S. Kantai, M. N. Kioga (JJ) June 25, 2010 Constitutional Law - voting at referendum-peoples constituent power to replace a Constitution - application to have prisoners registered as voters to facilitate their participation in a referendum- difference between a referendum and National Assembly and Presidential Elections -restrictions to voting prisoners restricted to vote under section 43 of the Constitution- whether Section 43(2) (c) of the Constitution as applied to section 47A by section 47A 5(a) prevented inmates from voting in a referendum - whether a referendum was distinct from National Assembly and Presidential Elections- Constitution of Kenya section 43, 47A (2) (a), 47A 5(a) - Constitution of Kenya Review Act, 2008-Article 25 of the International Covenant on Civil and Political Rights (ICCPR). Constitutional Law - voting at referendum- peoples constituent power to replace a Constitution-whether people of unsound mind could take part in any function that required exercise of choice due to their status-whether the right to vote was also limited to people above the age of 18 and who had not committed an electoral offence. Constitutional Law - registration of voters-suspension of the registration of voters- whether the voters register could be reopened under Section 39 of the Constitution of Kenya Review Act No. 9 of 2008 - Constitution of Kenya Review Act No. 9 of 2008, Section 39(3). Jurisdiction - jurisdiction of the Interim Independent Constitutional Dispute Resolution Court (IICDRC)- original jurisdiction on matters arising out of the Constitutional Review process vested on the IICDRC - application of the National Assembly and Presidential Elections Act in referendum disputes -whether the IICDRC had jurisdiction to handle voter registration matters- whether the petition was within the mandate of the Court Constitution of Kenya Section 60 A (1) - National Assembly and Presidential Elections Act (Cap 7) section 7, 8 and 9 Civil Practice and Procedure - parties to a suit-representative suit-locus standi need for one to have a legal interest either vested or contingent in the subject matter before the Court- whether the petitioner had the locus standi to file the petition on behalf of prisoners. Civil Practice and Procedure - rules of procedure-interpretation of the rules- duty of the Court to interpret the Court Rules in a way that promotes the principle of substantial justice without undue regard to technicalities-where the issues raised were substantial and a decision on the issues raised was imperative-whether the court could strike out the petition for not complying with the Civil Procedure Rules and the (Practice and Procedure) Rules of the IICDRC. The petitioner, acting on instructions of Kituo cha Sherias Board of Directors, filed the petition on behalf of the Shimo La Tewa inmates demanding registration of all prisoners as voters by the Interim Independent Electoral Commission (IIEC). The IIEC had previously conducted a fresh voters registration exercise where all inmates had been excluded. By Njeri Githanga
The petition asserted that the inmates of Shimo la Tewa prison acting through the Chairman of the Shimo la Tewa Paralegals Association authorized Kituo cha Sheria to petition the relevant authorities tasked with the responsibility of registering voters for an upcoming referendum to consider the need for the prisoners to participate in the exercise. The petitioner argued that the section 43 of the Constitution only excluded prisoners from voting in general elections but not in a referendum and that therefore, the exclusion of prisoners by the IIEC from its voter registration exercise was illegal, given their mandate to undertake fresh registration of voters and create a new voters register for the referendum without expressly prescribing limitation to exclude any category of people. The petitioner asked the court to, among other things make a declaration that prisoners were eligible to be registered to participate in the upcoming referendum. In response, counsel for the Attorney General asked the court to dismiss the petition stating that the court did not have jurisdiction to entertain the petition because the National Assembly and Presidential Elections Act set out the mechanism as to the determination of questions of registration of voters. It was argued that matters of registration of voters were supposed to be dealt by registration officers as set out in that Act. The IIEC on the other hand contended that the petition was defective since the petitioner had no locus standi to bring the action as she had not alleged that any individual right guaranteed by the Constitution had been violated with respect to her.
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Held: 1.The Court was established under Section 60A (1) of the Constitution and had exclusive original jurisdiction on matters arising out of the Constitutional Review process. The non registration of inmates by the IIEC, in the concluded registration of voters for the August 4, 2010 referendum was a matter of Constitutional making process hence the petition was clearly within the mandate of the Court and section 7, 8 and 9 of the National Assembly and Presidential Elections Act could not apply to the petition. 2. The petitioner had the legal capacity to file the representative suit on behalf of the prisoners. The Kituo cha Sheria being a registered Non-Governmental Organization, had capacity to sue and be sued under the Non-Governmental Organization Coordination Act. Accordingly, there was no reason why the matter should not have been instituted in the name of Kituo cha Sheria. 3. For a person to have Locus Standi in a matter, one had to have a legal interest either vested or contingent in the subject matter before the Court. Such interest had to be above that of other members of the public in general. 4. There were instances where many people whose fundamental rights were violated were not in a position to approach the Court for relief as a result of possibly being unsophisticated and indigent. Where large numbers of persons were affected in that way, there was merit in one person or an organization approaching the court on behalf of all those persons whose rights were allegedly infringed. In so doing, human rights became more accessible to man or woman in the street. 5. Rule 10 of the IICDRC (Practice and Procedure) Rules mandated the Court to interpret the Court Rules in a manner that promoted the principle of substantial justice without undue regard to technicalities. The issues raised for the inmates were substantial and a decision on the issues raised was imperative. The court could not therefore strike out the petition for not complying with the Civil Procedure Rules and the (Practice and Procedure) Rules of the Court. 6. While it could be argued that the petitioners claim to represent the interests of inmates at Shimo la Tewa prison was tenuous on the absence of a signed letter authorizing representation, the petitioners claim to standing on the basis of being an officer of an organization which championed the interests of the public in matters concerning human rights of the poor and marginalized such as prisoners demonstrated she was entitled to bring the case. 7. From the wording of section 47A (2) (a), it was clear that the right to replace the Constitution with a new one vested collectively on the people of Kenya through a referendum. A referendum was clearly distinct from National Assembly and Presidential Elections and was only applied when the Constitution was to be made, altered or replaced. 8. Article 25 of The International Covenant on Civil and Political Rights (ICCPR) which Kenya was a signatory to did not completely ban voting restrictions. It permitted reasonable restrictions on the right to vote and take part in public affairs. 9. Section 47A (5) (a) of the Constitution of Kenya imported section 43 of the Constitution on the question of voting on a draft constitution in a referendum. However, section 47A 5(a) left a window open on application of section 43 of the Constitution to a referendum on a draft constitution with the words with necessary modification. That clause left the court free to modify as the case may be on the various categories of qualifications and disqualifications to vote set out on the said section 43 of the Constitution. 10. The peoples constituent power to replace a Constitution was above the Constitution itself. The power enabled the people to take part in a referendum and it could not be legislated upon by Section 43 of the Constitution to disenfranchise the very sovereign people from using their constituent power exercisable only through a referendum. 11. Section 43 2(c) which expressly excluded people in protective custody from voting referred to the National Assembly and Presidential elections and not to a referendum. Section 43(2) (c) of the Constitution as applied to section 47A by section 47A 5(a) did not prevent inmates from voting in a referendum. 12. The people could only apply to the people of sound mind and in control of their faculties. People of unsound mind could not be able to take part in any function that required exercise of choice due to their status. Whether or not they were in or out of prison they could not be the people in respect of the exercise of their Constitutional Power to vote in a referendum. 13.The criteria to be used in modification in the courts mind was that of proportionality. On the balance of proportionality, there was no legitimate governmental objective or purpose that would be served by denying the inmates the right to vote in a referendum. The peoples constituent right to vote in a referendum was a basic human right that ushered in or refused to usher in a new Constitution. Neither the Constitution nor the National Assembly and Presidential Act Cap 7 could hence prevent inmates from taking part in a referendum if the prisoners were deemed to be part of the people. That right would however only be exercised by inmates of sound mind, who were over 18 years of age and who had not committed an electoral offence. 14. The age of 18 was the internationally accepted age of majority. The Constitution of Kenya Section 43(a) set out the voting age at 18 years. That applied to all Kenyans whether or not they were in prison or outside. Inmates under the age of 18 could not vote in a referendum. 15. Section 39(3) of the Constitution of Kenya Review Act No. 9 of 2008 presupposed that the suspension of the registration of voters could be lifted and reopened. Besides, despite the provisions of the said section, the IIEC had continued to register people for voting way long after they had published the referendum question. The section did not quite put the registration process of voters in a strait jacket timetable as alleged. Petition allowed
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Constitutional referendum procedure in impugning the content of the draft Constitution
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others Constitutional Petition No. 5 of 2010 The Interim Independent Constitutional Dispute Resolution Court at Nairobi (IICDRC) S. Omondi, J. Mohamed and M. Kioga JJ. August 2, 2010 Reported by Njeri Githanga
Constitutional Law - referendum-disputes arising out of the referendum process-need for the disputes to be brought at earliest available opportunity because of their potential impact-dispute brought less than a month to the referendum-where the dispute could have been brought earlier-whether instituting the petition at that stage was an abuse of the court process. Constitutional law - Constitution making- Constitution review process review organs in the process-importance of a Referendum in the process-where the court had not been mentioned as a review organ in the process- whether the court had a role in determining what constituted the provisions of the Proposed Constitution of Kenya whether the court could interfere with the referendum process-Constitution of Kenya Review Act (Act No.9 of 2008) section 5-Constitution of Kenya section 47A (2)(a). Constitutional Law - supremacy of the constitution-referendum- constituent power of the people - power to make, enact and amend a Constitution - peoples right to vote and determine whether or not the proposals contained in the Proposed Constitution of Kenya (PCK) would become the supreme law whether any other body had the power to alter or attempt to make any changes as to the contents of the PCK except the people themselves in the exercise of their constituent power to vote in a referendum. Jurisdiction - jurisdiction of the Interim Independent Constitutional Dispute Resolution Court (IICDRC) -Jurisdiction limited to hearing matters arising from the Constitutional review process where most of the issues raised by the petitioners touched on the contents of the Constitution- whether the Court had the jurisdiction to determine what was to form the contents of the Proposed Constitution of Kenya (PCK)-Constitution of Kenya Section 60A (1). The thirteen petitioners had filed a petition to the Interim Independent Constitutional Dispute Resolution Court (IICDRC) on the allegation that the Proposed Constitution of Kenya (PCK) contained numerous provisions which, in their opinion, were illegally inserted or unilaterally introduced into the draft by the Committee of Experts (CoE). It was also their case that some of the provisions of the PCK violated some sections of the current Constitution. Further they argued that some provisions of the PCK violated, compromised and/or negated the objects and purpose of the constitutional review process as set out in Section 4 and 6 of the Constitution of Kenya Review Act, 2008 (Act No. 9 of 2008).
It was also contended that the CoE had acted in breach of Sections 30, 32 and 33 of the Constitution of Kenya Review Act and exceeded its powers and mandate in carrying out its functions leading to the publication of the PCK. Finally, they sought an order of permanent injunction stopping the Interim Independent Electoral Commission (IIEC) from carrying out the referendum scheduled for the August 4, 2010.
Held: 1. The petitioners had been aware of the time the Committee of Experts (CoE) started their work and the various stages the review process passed through, yet they filed their application less than a month to the referendum. There was nothing to show that they made any effort to present their views before the CoE or any other organ but were locked out of the process. The institution of the petition was therefore an abuse of the court process. 2. Matters concerning elections (referendum in the case) ordinarily had to be brought at the earliest available opportunity because of their potential impact on the elections. If they were brought too close to the elections, it could result in the postponement of the elections, which was not desirable in a democratic society. However there were circumstances, though rare, where bringing a challenge earlier was not possible having regard to the nature of the dispute. Where the challenge could have been brought earlier, a litigant had to put out facts covering the entire period of the delay, explaining why the challenge could not have been brought earlier. Failure to do so could result in the refusal of the relief. 3. Section 60A (1) of the Constitution gave the Interim Independent Constitutional Dispute Resolution Court (IICDRC) exclusive original jurisdiction limited to hear and determine only matters arising from the Constitutional review process. The Court therefore had jurisdiction to entertain the Petition, as long as the arguments were based on the process of reviewing the constitution. 4. Most of the issues raised touched more on content of the Proposed Constitution of Kenya (PCK) than the process 81
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that led to it. The Court could not determine what was to form the contents of the PCK. That duty was for the CoE in consultation with Kenyans. Anybody, including the Petitioners, if unhappy or dissatisfied with any provisions of the PCK, then they had an opportunity to make a decision as to whether the said provisions remained as they were or not through the exercise of their right to vote in the Referendum. 5. The PCK, being a mere proposal would be subjected to the referendum and if it was not adopted then no illegality or contradiction would occur. If however it was adopted, then still there would be no illegality and contradiction since the proposed Constitution created bodies and institutions such as the Supreme Court and Parliament which would be charged with the duty of addressing such issues as they arose. 6. Where there was a conflict between a schedule and the main body of the law, the main body of the law prevailed. It was not the Court to determine what went into the content of the proposed Constitution. Kenyans would read for themselves and make a decision on whether they wanted to be governed by the provisions of the PCK or not. 7. A Constitution of any country was the supreme law of the land and any other law was subordinate to it. 8. All the prayers sought were either declaratory orders or orders of certiorari or mandamus. None of the grounds upon which the prayers were sought had any merit or raised any issue of Public concern or a dispute in the review process within the jurisdiction and mandate of the Court as established under section 60A of the Constitution. 9. The importance of a referendum in the Constitution review process could not be over-emphasized as it was specifically provided for by the current constitution under section 47A(2)(a). According to the Constitution of Kenya Review Act (Act No.9 of 2008) section 5; the review organs through which the constitution review process was to be completed were listed as; a) Committee of Experts. b) Parliamentary Select Committee. c) The National Assembly, and d) The Referendum.
It was important to note that the order in which the organs were mentioned appeared to set the stages through which the process would be conducted. The process had already passed through the CoE, PSC, and National Assembly and the remaining organ was the referendum. The Court had not been listed as a review organ and therefore did not have a role in determining what constituted the provisions of the PCK at any stage. 10. Referendum was the exercise of peoples constituent power in ratification of a Constitution made by the constituent Assembly. It referred to the peoples right to vote and determine whether or not the proposals contained in the Proposed Constitution of Kenya would become the supreme law that governed them or otherwise. It was therefore clear that the stage at which the review process was, nobody or any agency could alter or attempt to make any changes as to the contents of the PCK except the people themselves in the exercise of their constituent power to vote in a referendum 11. The court had no legitimate right to interfere with the referendum scheduled for August 4, 2010. The court could not issue a ruling or make an order between Parliament and the referendum process as that would amount to a judicial body issuing rulings on political instead of legal issues, the result of which could be disastrous. Parliament in its wisdom decided that the PCK had to be subjected to the referendum. The court could not therefore interfere with the process as it had no authority to interfere with proposals which were on their way to the public for a final decision. 12. The courts main duty in the process of the Constitution making in a democratic society was to unblock the democratic channels. That function included the duty to safeguard the integrity of the Constitution review process. In doing so, courts had to prevent self-serving alterations of the legal and institutional frameworks of the review process and protect the rights of all actors in political and civil society, as well as preserve space for them to perform a meaningful role in the Constitutional review process. 13. The role of the court remained to act on its Constitutional mandate to provide a level playing field where everyone could exercise their right to determine how they wished to be governed through a referendum. 14. The peoples participation in creating laws and institutions that governed them was an important and integral part of governance that could not be usurped by any authority whether executive or judicial. An attempt by the Court to stop the referendum would therefore amount to a judicial coup detat on peoples constituent power. 15. A court could not injunct, stop or restrain any of the processes leading to the referendum vote as to do so amounted to usurpation of the peoples power and a serious contradiction, in that judicial power was exercised on behalf of the people and it could not thus be exercised against them. Petition dismissed
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Constitutional referendum validity of draft Constitution
Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR Constitutional Petition No. 3 of 2010 The Interim Independent Constitutional Dispute Resolution Court (IICDRC) at Nairobi V. K. Mavisi, S. N. Mukunya & S. Ole Kantai, JJ August 2, 2010 Jurisdiction - jurisdiction of the Interim Independent Constitutional Dispute Resolution Court (IICDRC)-matters arising from the constitutional review process-original jurisdiction on matters arising out of the constitutional review process vested on the IICDRC-conservatory and declaratory orders-where the petitioners sought to have the constitutional review process, including the referendum and the organs of review process supervised by the court-whether the IICDRC had jurisdiction to entertain the petition and grant the orders sought-whether by interfering with the constitutional review process the court would be engaging in a political process that was outside its mandate. Constitutional Law - fundamental rights and freedoms-violation of-constitution review process-petitioners alleging that their rights to replace the constitution were violated by the acts of the various state officers and public bodies for whom the 1st respondent was legally answerable for-whether the proposed constitution was properly published as required by law-whether the publication of the two draft constitutions and denouncing of one version two weeks later infringed on the petitioners sovereign right to participate in the writing of the constitution-whether the alleged alterations in the proposed constitution by the 1st respondent were so fundamental as to alter the character of the draft document by the 2nd respondent-whether such editorial errors were of such a magnitude as to compromise the sovereign right of the petitioners to take participate in the constitution making process. Constitutional Law - constitutional review process-constitutional review organs-Committee of Experts (2nd respondent)whether the 2nd respondent properly executed its mandate when identifying contentious issues-whether the 2nd respondent had any discretion in determining what was contentious-whether the 2nd respondent was bound by the recommendations of the Parliamentary Select Committee (PSC)-whether the content of the draft constitution was to be limited to what existed in prior draft constitutions. Constitutional Law - constitution review process-registration of voters-whether citizens resident outside the geographical jurisdiction of Kenya were entitled to register and participate at the referendum while abroad or overseas-whether the law envisioned registration and polling only at legally prescribed stations within domestic constituencies-whether the prevailing trends were in favour to voting for those in diaspora-whether a referendum o the constitution was just as good as any other election or whether it was a special activity calling for different rules. Constitutional Law - constitutional review process-referendum-participation in a free and fair referendum-referendum question-whether the mandate to craft the referendum question resided with the Interim Independent Electoral Commission (IIEC)-whether there was a specific manner in which the referendum question was to be framed-whether the character of the referendum question for presentation at the referendum was such as to compromise the Petitioners sovereign right to participate in the writing of the Constitution-whether it was in the public interest for the court to interfere with the process and postpone the referendum. The petitioners filed a petition before the Interim Independent Constitutional Dispute Resolution Court (IICDRC) seeking for both conservatory and declaratory orders against the respondents. They sought to have the constitutional review process, including the referendum and the organs of review process supervised by the court; that the referendum scheduled on the 4th August 2010 be postponed or varied on grounds that the exercise would have failed some constitutional thresholds including popular consultation, fully consultative, inclusive and democratic framing of the constitution proposal and a free and fair national referendum; and that the petitioners living in the diaspora registered as voters for the referendum. Reported by Nelson Tunoi
Before the hearing of the petition, counsel for the 3rd respondent raised a preliminary objection to the effect that the court lacked jurisdiction to hear and grant the orders sought by the petitioners, contending that the jurisdiction granted to the court by Parliament was limited to ensuring that the constitutional review process was conducted within the parameters of the Constitution and the Constitution of Kenya Review Act, Act No. 9 of 2008. He argued that the timelines set out by those legislations were well spelt out and the court could not re-write such timelines since that was the responsibility of Parliament. He therefore urged court to dismiss the petition for being an abuse of the court process. In response, counsel for the petitioners opined that the jurisdiction of the court to deal with the matters in the application was derived from the petition itself, which the 2nd respondent had not faulted. He contended that the jurisdiction was derived from section 60A of the Constitution and the Rules of the Court, and that the matters raised were within 83
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the mandate of the court as the petitioners questioned various acts and omissions by the respondents who were also organs of the constitution review process.
The court dismissed the preliminary objection raised by the 3rd respondents advocate and proceeded to hear the petition lodged. The petitioners basic complaint was that the respondents had violated their right to participate in replacing the Constitution through their various unlawful actions and further that the Review Act had also violated their right to participate in the replacing of the Constitution since it contravened section 47A of the Constitution. Such alleged violations included the systematic noncompliance with the statutory provisions; that the Constitution of the Committee of Experts was legally inadequate; effecting of changes and alterations by the 1st respondent on the draft constitution in contravention of the Review Act; the failure of 2nd respondent to conduct impartial and sufficient civic education; the failure by the 2nd respondent to utilize public resources impartially; the failure by 3rd respondents to properly frame the referendum question; the failure by 3rd respondent to allow Kenyans in diaspora the right to register and vote at the referendum; and the failure by 1st, 2nd, 3rd respondent to ensure a free and fair referendum.
The 1st respondent, the Attorney General, objected to the petition on grounds that the petitioners lacked locus standi; that the referendum could not be a subject of the petition as it had not happened; that the typographical errors had not been proved since the evidence adduced did not follow the usual rules of evidence; that the 1st respondent complied with his mandate under the Review Act; that the court had no mandate to verify accounts of public offices; and that the petitioners were guilty of delays. Subsequently the 2nd and 3rd respondents lodged their responses denying having in any way interfered with the rights of the petitioners, and deponed that they carried out their functions in accordance with the various provisions within the Constitution and the Review Act. The 2nd respondent more specifically contended that there was no admissible evidence adduced to the effect that the civic education conducted was partisan. In that respect, the newspaper cuttings could not be a source of evidence for the court. Moreover, the 2nd respondent submitted that it submitted all documents as required by law and that regarding the timing of the civic education, it was to be conducted at all stages. There were no timelines suggested with respect to section 27 (1) of the Review Act. Further, it submitted that it was a statutory duty under the Review Act, which required it to carry its brainchild, its product, the draft constitution, to its enactment, and had nothing to do with partisanship. The 2nd respondent further contended that sufficient information on its proceedings was actually in the public domain having been reduced in writing, and indeed a report had been published after the recommendations of the Parliamentary Select Committee. Regarding the 3rd respondent, on the issue of registration of voters, it submitted that the period for registration could not run ceaselessly, for the reason that there were other vital processes that ought to be undertaken such as the compilation of all the data collected and collated from the field, creation of a principal register and register per constituency as mandated by the law, return of the registers for corrections and inspection by the voters, return of the corrections and preparations of the registers amongst other logistical items, and therefore the period of fifty (50) days was sufficient to allow as many eligible voters as possible to register. Regarding the possibility of facilitating the registration of Kenyans in the diaspora and their consequent voting, the 3rd Respondents response was that the registration exercise was a very costly process that ought to be budgeted for and funds availed in advance specifically for that purpose. Thus, the request by the petitioners not only presents logistical problems of gargantuan proportions but also portents enormous cost implications. With respect to the referendum question, the Petitioners case was that by adopting a binary question as opposed to a multiple style referendum or a referendum with an addendum of contentious issues, the 3rd respondent violated their constitutional and sovereign right to participate in the replacement of the Constitution. In response, the 3rd respondent stated that under section 37(1) (3) of the Constitution, the referendum question was to be framed so as to require the answer YES or NO. Thus, in full observance of section 37(3), there could not be any other manner of framing the referendum question other than to this extent allowed by the law. Counsel for the 3rd respondent further submitted that the question for referendum was a matter that was outside the domain of the 3rd Respondent which has already done its work as required by law and that the complaint lacked merit and should be dismissed.
Regarding the issue whether it was in the public interest to interfere with the process and postpone the referendum, the petitioners urged court to postpone the process claiming that the issues arising were of a public interest nature. Conversely, the respondents asked the court not to do so arguing that Kenya had been on the constitution making process for far too long and that therefore it would be wrong to interfere with the review process. Further, the respondents asserted that the petitioners grievances were a way of articulating failed political proposals, and thus urged the court not to interfere with the review process since by doing so it would be engaging in a political process that was outside its mandate.
The main issues for determination by the court was whether the respondents had exercised their respective mandates in accordance with the law; whether the Kenyans in the diaspora were eligible to be registered as voters for purposes of the referendum; and whether the petitioners right to free and fair election had been infringed by the respondents
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in the exercise of their mandate in accordance with the law. Held: 1. Although the petitioners approached court on their own and did not claim to be acting for many others, they nevertheless had locus standi since they were seeking redress for the alleged violations by the respondents, of their legal rights in contravention of the Constitution. 2. Regarding jurisdiction of the court to hear the petition, section 60A of the Constitution provided for exclusive jurisdiction of the court to hear and determine all matters arising out of the constitutional review process; and where a party had proved that the matter arose from such a process, it was the courts duty to entertain and determine the same. Further, the mere fact that the court may not grant the orders sought for various reasons does not take away the jurisdiction of the court. 3. On the admissibility of evidence by affidavits, where the court finds it appropriate and that reliable and sufficient information has been provided, affidavit evidence may be accepted subject to where the court has made specific finding. 4. It is desirable that a challenge to the constitutional or legislative validity of especially public actions be brought in a timely manner, and each case be dealt with on a case to case basis. In the present case, comparing the time when the court and its rules were put in place and when the petition was filed, which was about three months apart, it could not be said that the petitioners had overly delayed in coming to court. 5. The eventual character of the draft constitution that would be presented at the referendum was not unknown. In that draft constitution, clause 24 did not carry the words national security and not even the statutory edits by the AG could introduce such terminology. The court could not therefore give credence to criminal intentions by upholding the view that the commission resulted into the publication of two draft constitutions. Moreover, the petitioners did not produce in court the draft they were referring to, and further no evidence was adduced to show that they had been misled even after the corrections by the AG. Consequently, there was no justifiable ground for the petitioners claim that their interests and right to participate in the referendum were injured because of the same. 6. There were no material alterations to the draft constitution that had a fundamental impact to the extent that it changed its character. The evidence adduced as annexed to the petition did not support such a finding and therefore there was no reason to believe that such alterations were not necessary for perfecting the document and in line with good drafting techniques. 7. Regarding the composition and competence of the Committee of Experts, there was no evidence adduced to show that the procedure of appointment and/or lack of competencies in any way was prejudicial to the rights of the Petitioners or in any way prevented the Committee of Experts from performing its duties at all as envisaged by the law. Therefore, the question as to whether the petitioners rights were violated became moot and remote. 8. With respect to identifying contentious issues or even determining the content of the draft constitution, the Committee of Experts had discretion, although not arbitrary, since it was susceptible to checks and balances at each and every stage of the review process. The Committee of Experts following its mandate under the Review Act in identifying issues that were contentious and those that were not, could not act arbitrarily. Issues such as Kadhi courts, land, electoral system and affirmative action were not labeled contentious since unanimity had been reached on them in the previous drafts and therefore the Committee of Experts using statutory methodology could not possibly label those issues as contentious. The complaints raised by the petitioners regarding identification of contentious issues expressed preferences and choice which was not sufficient to overrule the Committee of Experts and therefore could not be sustained. 9. On whether facilitation of civic education amounted to conducting the same, the mandate of the Committee of Experts extended to actual provision of civic education, and that in the performance of that function it could incorporate officers of the provincial administration as well as other non-state actors. 10. Regarding the issue whether the Committee of Experts in conducting the civic education compromised the expectation of political neutrality on its part, the evidence adduced by the petitioner was not proper evidence for purposes of determination of such a profound case. Nonetheless, it was the role of the Committee of Experts to inform Kenyans the content of the draft constitution, and further to defend its content by publicly stating the rationale for each and every provision when called upon. Once they had educated on the content of the draft constitution, there was no visible legal duty to convince, persuade or campaign. 11. On the issue of abuse of public resources by the Committee of Experts, the allegation of such a magnitude could not be founded on the evidence adduced by the petitioners, and determination of such allegation was only by checking at audited accounts or even on guidance of experts, and that there were better institutions to determine whether financial matters were in dispute. 12. On the issue of access to verbatim records of the CoE, the Committee of Experts had sufficiently kept the public informed through its published reports and websites. There was no evidence to show that there was information the petitioners sought and were denied. Moreover, eventually all kinds of information would eventually be available at the national archives. 13. Given the profound character of constitutional referenda and its impact on the State and the wellbeing of a majority of the citizens, those in the diaspora should be allowed to register and vote during such processes. However, the prevailing jurisprudence requires that those human rights bearing enormous logistical and cost implications be realized 85
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only progressively and subject to the availability of resources, and thus such entitlements are achieved incrementally. 14. The Interim Independent Electoral Commission had the mandate to frame the referendum question and the question was to be tied to the adoption or rejection of the draft constitution by the citizenry and as part of exercising their franchise, the option available was to vote either YES or NO. It was also discernible that the review law never anticipated a multiple style referendum hence the Petitioners claim for a multiple questions style referendum was not informed by the law under section 37(3) of the Review Act. Since the court found no breach of any law, it was difficult to find any violations of the Petitioners rights. 15. The claim of lack of a free and fair election in the referendum lacked merit and was premature. The petitioners claim that public funds and state resources were being used in the campaigns and thus infringed on their rights for a free and fair election were isolated cases and could not suffice to warrant the referendum to be stopped. 16. On whether it was in the public interest to interfere with the process and postpone the referendum, it was only in one instance that the petitioners claimed to be acting in the public interest, which involved the issue of registration and participation of voters in the diaspora. The matter of constitution review process was weighty and was in the public interest and the court could only interfere where there were profound breaches in the process. 17. The Attorney General, the Committee of Experts and the Interim Independent Electoral Commission exercised their mandate in accordance with the law. Petition dismissed Constitution review mandate of Committee of Experts; Prime Ministers Oath of Office Eric Nicholas Omondi & 8 Others v AG & 2 Others Constitutional Petition No. 2 of 2010 Interim Independent Constitutional Dispute resolution court at Nairobi V. Mavisi, J. Mohamed & M. Kioga JJ. & 2 Others August 2, 2010 Reported by Emma Kinya.
Constitutional Law constitution making constitution Review Process review organs in the process mandate of the review organs whether the Committee of Experts had exceeded their mandate when it purported to change the various clauses that were not contentious; omitted clauses that had been agreed upon in the draft constitution; disregarded the public views and recommendations of the PSC and deleted some clauses. Constitutional Law constitution making constitution review process oath lack of an oath for the office of the Prime Minister where the petitioners felt that such an office required an oath in accordance with the sixth schedule of the Proposed Constitution whether there would be a constitutional crisis due to lack of an oath . Jurisdiction - jurisdiction of the Interim Independent Constitutional Dispute Resolution Court (IICDRC) -Jurisdiction limited to hearing matters arising from the Constitutional review process where most of the issues raised by the petitioners touched on the contents of the Constitution- whether the Court had the jurisdiction to determine what was to form the contents of the Proposed Constitution of Kenya (PCK)-Constitution of Kenya Section 60A (1). The petition was filed by 9 petitioners challenging the manner in which the 2nd respondent as an organ of review carried out their work. However, no case was set out against the 1st respondent save to say that he was the Principal Legal Advisor to the Government. The petitioner contended that the constitutional review process had been threatened and the purpose and objects of the review process would not have been attained due to the various actions by the Committee of Experts (CoE) which went beyond their mandate as given to them by the Review Act.
The petitioners asked the court to determine whether CoE had mandate to reopen the debate on issues that had not been identified as contentious; whether CoE failed in its mandate when it omitted clauses that had been agreed upon in the existing draft constitution; whether CoE had mandate to disregard public views and recommendations of the Parliamentary Select Committee; whether the CoE went beyond its mandate in deleting some provisions; whether provisions of Article 26(4) and 32 of the proposed Constitution reflected the views and aspiration of the people of Kenya; whether the court had jurisdiction to expunge the offending clauses in the proposed Constitution; whether the court had jurisdiction to rectify the proposed constitution.
The petition was founded on grounds that the 2nd respondents mandate was limited to soliciting and receiving views in respect of the contentious issues only; the CoE did not have authority to depart from the provisions of the existing drafts on contentious issues; the CoE did not have the mandate to write a totally new constitution; the CoE was obliged to respect the views and presentations of the members of the public after it published the harmonized draft constitution;
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the Prime Minister was an important state officer under the current and proposed constitution and the third schedule of the proposed constitution should have provided for an oath or solemn affirmation by the Prime Minister. In the petitioners view, section 47A of the previous Constitution did not stop one from questioning the manner in which the process had been carried out. Indeed, it was the reason why the Interim Independent Constitutional Dispute Resolution Court (IICDRC) had been set up under Section 60A to determine such disputes. In their view, the court had a supervisory role over the organs of review in carrying out their mandate. The petitioners asserted that once PSC had made its decision on the issues brought before them, then the CoE had no mandate to change the same but to frame them in a manner recommended by PSC. The petitioners felt that the office of the Prime Minister was such an important one and lack of an oath would cause a constitutional crisis as the holder of the office would not have taken an oath in accordance with the sixth schedule of the Proposed Constitution which provided for such an oath for other office holders.
The petitioners further asserted that they were not guilty of laches in coming to court as there was no law that provided for the timelines within which one came to court. They submitted that they were not praying for the referendum date to be thrown out but were only keen to vote for a Constitution in which the court had its input in order to have a refined document. The issues before court for determination were whether the court had jurisdiction to grant the prayers sought and whether the CoE exceeded its statutory limits when identifying issues in contention and during the compilation of the proposed constitution.
Held: 1. Section 60A of the Constitution had allotted exclusive original jurisdiction to the IICDRC to hear and determine all matters arising out of the Constitutional Review Process. Where a party had proved that a matter arose from such a process, then the IICDRC would entertain and determine the same. The mere fact that the IICDRC may not have granted the orders sought for various reasons did not take away the jurisdiction of the court. 2. The 2nd respondent had exercised its powers and mandate in accordance with the law. The nerve centre of the Committee of Experts (CoE) mandate was the identification of issues in contention and therefore, they had the discretion of defining what amounted to contentious issues. However, that latitude was not absolute but susceptible to checks and balances at each and every stage of the review process. 3. The petitioners grievance as against the CoE was misconceived. The court found that there was no violation of the discretionary power granted to them unless it was shown that one organ or stage was sidestepped. 4. The reasonable exercise of discretionary public power involved the idea of choice. It was about the exercise of will. Thus, the abuse of discretion would have involved more than a difference in opinion but a demonstration of perversity of will, a defiance of good judgment or bias. The primary rule when exercising statutory discretion was that such discretion should have been used to promote the policies and objects of the governing Act. 5. The fact that the clauses in the draft constitution were approved by the National Assembly which is the peoples representative was a clear indication that the view and aspirations of the Kenyan people were fully catered for by the CoE. If not so, the people of Kenya would give a clear answer to the petitioners on the issue in the Referendum. 6. The IICDRC had no mandate to rectify the draft constitution. Issues of content and fundamentals in the draft constitution were not matters within the mandate of the IICDRC and consequently, it could not rule on the legality of clauses in contention of the proposed constitution. 7. The court found that the petitioner had not delayed inordinately to have their matter dismissed as the petitioners filed their petition about 3 months after the rules of the court had been developed and about 6 months when the court was set up. Such a period could not have been said to be a long delay. 8. The proposed constitution recognized the provisions of the National Accord and the Prime Ministers office. Article 31(1) and (2) confirmed the fact that the Prime Minister would continue to hold that office and therefore the Prime Minister would have been effectively in office on the effective date when the constitution came into place and to that extent, there would have been no constitutional crisis. 9. There was no lacuna where an oath was to be taken by the constitutional office holders and there were no provisions that could have been used to cure what may have seemed to others to have been a lacuna in law. 10. The constituent power to accept or reject the proposed constitution was in the hands of Kenyans to determine their constitution. 11. There was no valid reason for the court to interfere or supervise the organs of review. 12. No case had been proved against the Attorney General who was the 1st respondent. Petition dismissed.
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Promulgation of new Constitution: Application challenging referendum results and the planned
Mary Ariviza and another v Interim Independent Electoral Commission of Kenya & 3 others [2010] eKLR Constitutional Petition No. 7 of 2010 The Interim Independent Constitutional Dispute Resolution Court at Nairobi V. Mavisi, S. ole Kantai, S. N. Mukunya, S. Omondi & J. Mohamed JJ. August 26, 2010 Constitutional Law - referendum-challenges to the referendum results-application to quash a gazette notice on referendum results-application on the ground they were not published according to the law-prayer to prohibit the promulgation of the proposed Constitution of Kenya- argument that the process of promulgating the ratified Constitution ought to have been stopped as per section 43(3) of the CKRA until such petition was finally disposed off according to Section 44 of the CKRAwhether the gazzettement of the referendum results by the 1st respondent on had been improper and illegal- whether the court could grant the orders sought- Constitution of Kenya Review Act (CKRA) sections 43(3) and 44. Constitutional Law - referendum-challenges to the referendum results-when such challenges are to be brought-service of petition on respondent-time within which to effect service- security for costs-time within which to deposit the security for costseffect of a petition where security for costs is not paid- whether the petition had to be dismissed- Interim Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules 2010, rule 9- Constitution of Kenya Review Act Sections 44(3) & (4). Constitutional Law - Constitution making process-referendum-interpretation of the various provisions of the law on holding of referendumpublication of results- when results of a referendum become final whether the law imposed a duty on the 1st respondent as the statutory body with the duty to publish final results of a referendum to ensure that no challenge to the results had been filed before publishing the same - Constitution of Kenya Review Act Section 43(2) 47 A (6) and (7) -Referendum Regulations, regulation 36(1)(c). Constitutional Law - Constitution Review process-where the process had a self propelled mechanisms for execution of the process- duty of the President Under Section 47A (6) and (7) to promulgate the Constitution within 14 days after publication of the final results of the referendum in the Kenya Gazette or the Constitution became law automatically on the expiration of 14 days-where the provision of the supreme law was binding on the court whether the court could grant the remedy sought in the face of the coming into force of the said constitutional provision - Constitution of Kenya Review Act Section 47A (6) and (7). The petitioner filed the petition on August 19, 2010 to the Interim Independent Constitutional Dispute Resolution Court (IICDRC) under Section 44 of the Constitution of Kenya Review Act (CKRA) (Act No. 9 of 2008) seeking the referendum results declared by the 1st respondent to be declared null and void. The petition was not served on the respondents until August 24, 2010 five days after filing. Reported By Njeri Githanga
The petitioner had at the same time filed a judicial review application before the High Court on the same issues before the IICDRC. Her application was dismissed by the High Court for lack of jurisdiction and she subsequently filed a certificate of urgency to the IICDRC seeking to have the Court suspend the whole of the Gazette Notice purportedly giving the final results of the referendum. She further sought to suspend the Promulgation of the Constitution until the hearing and determination of the petition. It was argued by the petitioner that as she had filed the petition on August 19, 2010, the effect of the filing of that petition was that the process of promulgating the ratified Constitution ought to have been stopped as per section 43(3) of the CKRA until such petition was finally disposed off according to Section 44 of the CKRA. It was contended that the gazzettement of the referendum results by the 1st respondent on August 23, 2010 was hence improper and illegal in view of the petition that was filed on the 19th of August, 2010 under Section 44 of the CKRA (Act No. 9 of 2008). The petitioner urged the court to suspend the Gazette Notice and suspend the promulgation set for the August 27, 2010 pending hearing of the petition.
The petition was opposed by the 1st respondent on the ground that no notice had been given to the 1st respondent under section 44(2) of the CKRA. The 1st respondent argued that having no notice of any petition published the final result as per the requirement of Section 43(4) of the CKRA. It was submitted that it was the duty of the petitioner to serve the 1st respondent and the 4th respondent with the petition. In absence of such service the 1st respondent was well within its mandate to publish the result. Advocate for the 4th respondent argued that under Section 44(3) of the CKRA, the petitioners were supposed to deposit Kenya Shillings two (2) million as security for costs within 7 days of filing the petition.
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As per S. N. Mukunya, S. Omondi & J. Mohamed JJ Held: 1. The petition had been filed on time however service on the respondents had not been effected in goodtime. It was not enough to say that the matter was in the public domain. It was a legal duty and requirement of the law that anyone filing a matter in Court had to formally bring the same to the attention of the adverse parties; in the case in question, the respondents. The law regarding service was quite clear and it was not for the respondents to go to Court and find out whether a petition had been filed. 2. The 1st respondent had an equal duty to see to it that it complied with the law and published the final result after 14 days or soon thereafter as was required by the law. 3.In a Constitutional matter where time was of the essence, it was the party that approached the Court for a Constitutional remedy to make sure that the adverse party was served as quickly as was practicable, more so where time for doing an act was limited by statute. Time frames for both the petitioner and the 1st Respondents were running concurrently. The respondents had no formal notice of filing of the Petition and consequently it was well within their mandate to publish the final results. 4. For a referendum petition to be filed and be ready for hearing, the petitioner was required to pay two million shillings as Court filing fees under rule 9 of the Interim Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules 2010 within 7 days after the petition was made. Section 44(4) of the CKRA, provided that if security was not given in accordance with section 44 (3) of the CKRA the petition had to be dismissed. By the time the ruling was being written, no money had deposited with the Court. That therefore meant that by operation of law, the petition could only be active if the Kenya shillings two (2) million was paid by the close of business that day. 5. Under section 47 A(6) of the CKRA, the President was mandated not later than 14 days of the publication of final result of the referendum to promulgate and publish the text of the new ratified Constitution in the Kenya Gazette failure to which the Constitution promulgates itself automatically. The Court had no jurisdiction to challenge or change the provisions of the Constitution under section 47 A (6). As per V. Mavisi & S. ole Kantai JJ Held: 1. The IIEC was duty bound under Section 43 of the Act to publish interim or provisional results within 2 days of the holding of a referendum which was done on August 6, 2010. 2. If a petition challenging the conduct or result of the referendum was filed on time, the petitioner was duty bound under Section 44 of the Act to give Notice to the Attorney General and the IIEC within seven days after the Petition was made. And if a petition was filed on time and a Notice served in accordance with the said provision on the Attorney General, the Attorney General had to publish a Notice of each petition of which notice was received within seven days of the expiry of the period prescribed in subsection (1). 3. A petitioner who filed a petition within time had to deposit security for costs within seven days after the petition was made 4. The petition had been filed within the 14 days period envisaged in law and Notice of such petition was to be served on the 1st and 4th respondents 7 days after the filing of the petition. The petitioner under the Constitution of Kenya Review Act had a 7 day window to serve the petition and/or notice. 5. Interim or provisional results could not become final until all challenges to the conduct or results of the referendum which were filed within the time limited for filing such challenges (14 days under Section 43 (3) of the Act) were heard and determined. 6. The law imposed a duty on the 1st respondent as the statutory body with the duty to publish final results of a referendum to ensure that no challenge to the results had been filed before publishing the same. The legislature created 14 days for challenges to be filed and if such challenges were filed, the 1st respondent could not publish final result until challenges were heard and determined. 7. A petitioner who filed a petition within time had to serve a notice on the 1st and 4th respondents 7 days after filing the 1st respondent could not therefore in law publish final results without establishing, in a formal way with the court established to deal with such challenges, that no challenges had been filed and if challenges had been filed that the same had been heard and determined. That was the full purport and meaning of Sections 43 and 44 of the Constitution of Kenya Review Act. The Constitution of Kenya Review Act therefore created a responsibility on the part of the Interim Independent Electoral Commission and the Attorney General to establish that there were no challenges before final results could be published in the Gazette. 8. The allegation by the respondents that they were not served with petition or Notice by 20th August 2010 was misplaced and misadvised. The petitioners responsibility was to serve a notice and/or the petition within 7 days of filing of the petition. That was distinguished from the ordinary litigation or electoral petitions where a petitioner had a primary responsibility of service. The filing of the petition in question had even been brought to the respondents attention in court during the hearing of IICDRC No. 6 of 2010. 9. Publishing of Gazette Notice 10019 by the 1st respondent had been done in terms of Section 47 A (7) of the Constitution, Section 43(2) of the Constitution of Kenya Review Act and Regulations 36(1)(c) (Referendum) Regulations which provided that Subject to any provisions in the New Constitution relating to its commencement, and not 89
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withstanding anything to the contrary in this Constitution, the New Constitution shall become law and have effect when the New Constitution is published under subsection (6), on or the expiry of a period of 14 days from the date of the publication of the final results of the referendum in the Kenya Gazette, whichever is the earlier. 10. The date of promulgation of the new Constitution had been arranged for August 27, 2010 which had been set and announced even before the time allowed in law for lodging challenges had expired. The 4th respondent ought to have given sound advice to the Executive not to take such hasty steps which would lead to an abuse of the law and the legal process. 11. The Constitution Review process had a self propelled mechanisms for execution of the process. The court was a creature of Section 60A of the Constitution. None of the provisions of the Constitution were superior to others. The Constitution as Supreme law was a wholesome document and operated through all the provisions and not one. 12. Under Section 47A (6) and (7) , once the final results of the referendum were published in the Kenya Gazette, the President had to promulgate the Constitution within 14 days thereof or the Constitution became law automatically on the expiration of 14 days. That provision of the supreme law was binding on the court and it had to abide by it. Although the petitioners complied with the provisions of the Constitution of Kenya Review Act, the court could not grant the remedy sought in the face of the coming into force of the said constitutional provision. Petition dismissed
1. The National Council for Law Reporting is proud to introduce the KLR Monthly - a monthly digest of the judicial opinions of the superior courts of record. 2. The publication of the KLR Monthly is the Councils response to the need to provide you with timely access to contextually relevant case law information. While the publication of the full text of the judicial opinions on the Councils website answers to the broader content - is-king refrain of legal information publishing, with KLR Monthly, context is king: it will be platform on which the place of the judicial opinions in the larger body of existing judicial precedent will be defined and contextualised in the form of digests and abstracts capturing pertinet issues of jurisprudence. 3. KLR Monthly will not be a substitue to but rather a build up towards the compilation of the hard - bound annual edition of the Kenya Law Reports.
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JURISPRUDENTIAL ISSUES ARISING IN THE JULY DECEMBER 2010 PERIOD
By Nicholas Okemwa
The Research and Development Department is tasked amongst other things to monitor and track frontier and emerging issues in Kenyan, regional and international jurisprudence. To this end, at the end of every quarter the R&D Department prepares a synopsis of jurisprudential issues that arise from the superior courts of record. The following are some of the interesting issues that were canvassed by the courts during the period.
Suffrage is the civil right to vote, or the exercise of that right. In that context it may also be referred to as political franchise or simply the franchise. There are several types of suffrage but the most commonly known is the universal suffrage. Universal suffrage is a counterintuitive term that does not actually apply to all citizens or residents of a region, but the extension of voting privileges is given without distinction to race, sex, belief, or social status. Distinctions are frequently made in regard to age, and occasionally mental capacity or conviction record.
Right of prisoners to vote in a referendum for a new constitution Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission (2010 eKLR) Constitutional Petition No. 1 of 2010 Mr. Nicholas Okemwa, Snr. Law Reporter, Head of R & D Interim Independent Constitutional Dispute Resolution Department Court (IICDRC) at Nairobi (S. N. Mukunya, J. Mohammed, S. Omondi, S. Kantai, M. N. Kioga (JJ) June 25, 2010 (Reported on page 79 above)
The right of prisoners to participate in public life through voting is an issue that is currently under debate in several jurisdictions particular in the developed world. Many countries particularly in Africa and Asia, have disenfranchisement of sentenced prisoners. The guiding principle behind this is that it reflects societys rejection of serious crime and safeguards the social contract and rule of law. Article 25 of the International Covenant on Civil and Political Rights (ICCPR) explicitly extends the right to vote to every citizen, and calls for universal and equal suffrage. General Comment 25 to the ICCPR clarifies that if conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence.
However, the Human Rights Council which is the inter-governmental body within the UN system made up of 47 States responsible for strengthening the promotion and protection of human rights around the globe, has stated that depriving persons who have been convicted of a felony of the right to vote does not meet the obligations in article 25 of the ICCPR nor does it serve the rehabilitation goals of article 10(3) of the Covenant.
In Africa, South African courts have ruled that the disenfranchisement of prisoners is a violation of South African law and international law, and that the State has a positive obligation to enable its prisoners to vote. In August v. Electoral Commission and Others (CCT8/99) [1999] ZACC 3, the Constitutional Court confirmed that the unqualified right for every citizen to vote imposes positive obligations upon the government to make reasonable arrangements for prisoners to vote. Then, in 2004, in Minister of Home Affairs v. National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10, the Constitutional Court reaffirmed its holding in August. It ruled that depriving the right to vote from prisoners who are serving a sentence without the option of paying a fine instead was not acceptable without a compelling justification.
In Kenya, the National Elections and Presidential Election Act specifically excludes prisoners from participating in elections. However, does this include the right to vote in referenda? This was the issue that the Interim Independent Constitutional Dispute Resolution Court grappled with in the case of Priscilla Nyokabi Kanyua v Attorney General & another [2010] eKLR. The court therein distinguished between referenda and elections. It held that a referendum was clearly distinct from National Assembly and Presidential Elections. A referendum only comes and applies when the Constitution is to be made, altered, or replaced. It stated that from the wording of section 47 A (2)(a) of the Constitution ( now repealed) it was quite clear that the right to replace the Constitution with a new one vests collectively on the people of Kenya through a referendum. The court relied on the decision of Njoya & 6 Others V Attorney General & 3 91
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Others (No 2) [2004] 1 KLR which stated that the peoples constituent power was above the Constitution itself and the exercise of the same was through a referendum.
The court in the present case therefore ruled that prisoners constituted the people and could not be disenfranchised from using their constituent power exercisable only through a referendum except in certain acceptable instances for instance on account of age, mental faculties and conviction for electoral offences. Constitutionality of a mandatory sentence of death on a charge of murder Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008 Court of Appeal at Mombasa R. S. C. Omolo, P. N. Waki & J. W. Onyango Otieno, JJA July 30, 2010 (Reported on page 45 above)
The death penalty is a subject that, in the words of Justice Adrian Saunders of the Eastern Caribbean Court of Appeal, invariably elicits passionate comment. The imposition of capital punishment by State is a highly emotive issue especially amongst human rights activists across the globe. There is an emerging international consensus on excluding the use of the death penalty. The UN General Assembly adopted a resolution in December 2007 calling for a worldwide moratorium on executions. Although Kenya abstained from voting, the resolution was adopted by an overwhelming majority of 104 UN member states in favour, 54 countries against, and 29 abstentions.
However, in Kenya the abolishment of capital punishment has not really been debated in the public fora. According to the Committee of Experts on Constitutional Review, members of the public did not present views that were opposed to the imposition of the death penalty and therefore did not exclude the same from the draft Constitution ( as it then was) presented to the Parliamentary Select Committee. The recently promulgated Constitution of Kenya does not prohibit capital punishment. The Court of Appeal in Godfrey Ngotho Mutiso v Republic [2010] eKLR however was not faced with the issue of the legality or constitutionality of the death penalty. The issue before court was whether it was constitutional to impose a sentence of death without considering mitigating circumstances of the commission of the offence and the offender. The Penal Code section 204 provided for a mandatory death sentence for the offence of murder. This issue as the Court of Appeal noted was not peculiar to Kenya. Indeed, the mandatory death penalty is a colonial legacy. Under the common law of England, death was the only sentence that could be pronounced by a judge upon a defendant who was convicted of murder, regardless of the nature of the offense or the particular circumstances of the offender. Through colonialism, this simple and undiscriminating rule was applied to many of Britains colonies, and upon independence, the many nations of the Commonwealth including Kenya preserved the rule that was in place as part of their colonial inheritance.
Closer home, Uganda has similar provisions and its Constitutional Court in Susan Kigula & 416 others vs. A.G (Constitutional Petition No. 6 of 2003) held that mandatory application of the death penalty was unconstitutional even though the death penalty itself was constitutional. This decision upheld and affirmed by the Supreme Court. The Kenyan Court drew reference to the Ugandan case and held that the imposition of a mandatory death penalty was indeed unconstitutional. It held that mandatory requirement of the death penalty was in violation of the Constitutional provisions by not allowing for indivualised consideration of the offender and the commission of the offence.
The Court also considered the length of time served by the convicts sentenced to death. It opined that the delay in execution of prisoners who have been on death row for a long period of time was inconsistent with constitutional provisions and remarked that it was a pity that such matter had never been raised before the court. In Uganda, the Constitutional Court in Kiguta had held that a period of more than three years from the time when the death sentence was confirmed by the highest appellate court would constitute inordinate delay. Discretion of the Attorney General to represent a public corporation or public officer Joseph Nathaniel Kipruto arap Ngok v Attorney General & another [2010] eKLR Civil Appeal No. 326 of 2005 Court of Appeal at Nairobi S. E. O. Bosire, E. M. Githinji & J. G. Nyamu, JJA
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July 2, 2010 Court of Appeal at Nairobi (Reported on page 39 above) The Attorney General is the principal legal advisor to the Government and undertakes civil litigation involving government and its agencies amongst other roles. State corporations are legal entities that have capacity to sue and be sued. The general thinking was that being bodies corporate, the Attorney General could not act as counsel for them. However, the Court of Appeal in Joseph Nathaniel Kipruto arap Ngok v Attorney General & another [2010] eKLR ruled that the AG has discretion to appear as counsel for any public body even though it is a body corporate. Further, it held that the AG could appear for any public officer even though the officer is sued in a private capacity. The Court also disambiguated the power of the Attorney General to bring civil proceedings and his discretion to represent a party in such proceedings. Jurisdiction of the Interim Independent Constitutional Dispute Resolution Court vis a vis High Court of Kenya Bishop Joseph Kimani & 20 others v The Attorney General, COE & PSC [2010] Eklr Constitutional Petition No. 4 of 2010 Interim Independent Constitutional Dispute Resolution Court at Nairobi (IICDRC) V. K Mavisis. N. Mukunya & S. Ole kantai JJ. August 2, 2010 (See page 96 above)
The Interim Independent Constitutional Dispute Resolution Court (IICDRC) is based on the notion of constitutional court to be found in such European courts as Germany, Italy, and France and also in the Republic of South Africa. However, in the Kenyan situation it exists for a limited period and is mandated to deal with only matters arising out of the constitutional review process. It was established by the Constitution of Kenya (Amendment) Act No. 10 of 2008 by inserting section 60A into the constitution (now repealed).
Several cases examined the jurisdiction of the High Court relating to the constitutional review process. In Bishop Kimani & others vs the Attorney General the High Court stated that it had jurisdiction to matters pertaining to the constitutional review process since the IICDRC had not been set up then. However, after the court had been constituted, the High Court has ruled that it lacked jurisdiction to entertain matters pertaining to the constitutional review process. In Mary Arivisa v Interim Independent Electoral Commission & another High Court stated that section 60A completely removed the constitutional review process from the ambit of the High Court including judicial review powers donated to it under the Law Reform Act. The Political Question Doctrine Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others Constitutional Petition No. 5 of 2010 The Interim Independent Constitutional Dispute Resolution Court at Nairobi (IICDRC) S. Omondi, J. Mohamed and M. Kioga JJ. August 2, 2010 (see page 81 above)
It is part of the broader concept of justiciabilitythe issue of whether a matter is appropriate for court review. Appropriate matters are called justiciable controversies and may proceed to court. Political questions are not regarded as appropriate matters; they are not justiciable and, generally, will be dismissed. Matters that fall under this doctrine include issues that Constitution has committed decision-making on the particular subject to another branch of the government for instance treaty making; there are inadequate standards for the court to apply; or the court feels it is prudent not to interfere. In Marbury v. Madison 5 U.S. (1 Cranch) 137, 170 (1803) Chief Justice Marshall stated that the province of the court was, solely, to decide on the rights of individuals, not to inquire how the Executive, or executive officers, perform duties in which they had a discretion. Questions in their nature political, or which are, by the Constitution and laws, submitted to the Executive could never be made in the court.
In Kenya, the political question doctrine came into prominence in the case of Patrick Ouma Onyango & 12 others v Attorney General & 2 others [2005] eKLR where the court stated that a court of law had no authority to stop the adoption or rejection at a referendum of a constitutional proposal on the basis that one or the other of the draft proposals were altered or mutilated since the court was not equipped to prefer any of the set of proposals and drafts that being substantially a political process.
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The IICDRC similarly in Alice Waithera Mwaura & 12 others v CoE & 2 others stated that the court cannot issue a ruling or make an order between Parliament and the referendum process as that would amount to a judicial body issuing rulings on political instead of legal issues. That where the court attempts to stop the referendum would amount to a judicial coup detat on peoples constituent power. Calculation of Damages by a Deputy Registrar Kenya Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 R S C Omolo,P N Waki & J G Nyamu JJ A. Court of Appeal, at Nairobi July 16, 2010. (see page 41 above)
A three-judge bench of the Court of Appeal has stated that the calculation of damages is a judicial function as opposed to a ministerial function and therefore could not be delegated to a deputy registrar. This was in the case of Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR. Applicability of Mutual Legal Assistance (MLA) Kenya Anti-Corruption Commission v First Mercantile Securities Corporation Civil Appeal No. 194 of 2008 R S C Omolo,S E O Bosire & P N Waki JJ A. Court of Appeal, at Nairobi July 16, 2010. (see page 40 above)
MLA is the formal way in which countries request and provide assistance in obtaining evidence located in one country to assist in criminal investigations or proceedings in another country. In Kenya Anti-Corruption Commission v First Mercantile Securities Corporation [2010] eKLR the Court of Appeal dealt with the issue whether the Kenya Anti-Corruption Commission (KACC) could apply for mutual legal assistance. The court held that section 23(1) of Economic Crimes and Anti- Corruption Act granted KACC the power to seek MLA from any foreign body or government. Granting of Bail to Persons Charged with Capital Offences Republic v Danson Mgunya and Another Criminal Case No. 26 of 2008 High Court of Kenya at Mombasa Mohammed Ibrahim J October 15, 2010 (See page 73 above)
Prior to 1987 all offences were bailable. By amendments to section 123 of the CPC Parliament created non-bailable offences namely murder, robbery with violence and attempted robbery with violence. However no constitutional amendments with regard to bail were made and the constitutional court in Margaret Ngui v Republic [KLR] 1985 held that the said sections were inconsistent with the constitution and declared them null and void. Subsequently section 72(5) of the previous Constitution was amended to prohibit the grant of bail in offences punishable by death. The Constitution of Kenya 2010 does not prohibit bail to any class of offences. The High Court in Republic v Danson Mgunya & another [2010] eKLR held that bail was an inalienable right that and could only be restricted by the court if there were compelling reasons for one not to be released. It took the position that once an accused person applied for bail in a murder case, the same principles and consideration in bail applications in respect of any other criminal offences should be applicable. The primary consideration was whether the accused person shall attend court and be available at the trial.
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Efficacy of an Election Petition Appeal where the Speaker Issues a Writ Ali hassan Abdirahman v Mahamud Muhumed Sirat & 2 others Civil Appeal No 26 of 2010 Court of Appeal at Nairobi Githinji, Waki & Viram JJ A October 12, 2010 (see page 51 above)
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Although the court was not called upon to decide upon it, the Court of Appeal in Ali Hassan Abdirahman v Mahamud Muhumed Sirat & 2 Others [2010] eKLR noted that the situation was unclear regarding section 23 (4) of the National Assembly and Presidential Elections Act which allowed for an appeal against the decision of the election court whether such an appeal would still be efficacious once the writ has been issued by the Speaker. Jurisdiction of Kenyan courts to try for the offence of piracy on the high seas Offences repealed without a saving clause Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Alias Dhodi & 8 others [2010] eKLR Misc. Application No 434 of 2009 High Court, at Mombasa Ibrahim J November 9, 2010 (see page 76 above)
As Ibrahim J notes in his judgment in this case, the question of jurisdiction to try [piracy] cases by the Kenyan Courts has not been the subject of much judicial interpretation and very few cases are reported on the subject. The question that the Court was considering arose from an interpretation of two statutory provisions. Whereas section 5 of the Penal Code provides that the jurisdiction of the Courts of Kenya for the purpose of this Code extends to every place within Kenya, including territorial waters, and section 69 provided that any person who, in territorial waters or upon the high seas, commits any act of piracy gentium is guilty of the offence of piracy. (emphasis supplied). To the extent that the term high seas was only included in section 69 and not section 5 which defined the jurisdiction of Kenyas courts, did the courts have jurisdiction to try suspects for the offence of piracy where that offence was committed on the high seas?
The court observed that the tern the High Seas is not defined in the repealed Merchant Shipping Act, the Penal Code or even the interpretation and General Provisions Act. In the Court of found that the High Seas are not and cannot be a place in Kenya or within the territorial waters of Kenya. By definition they are strictly deemed to be outside the jurisdiction of all states in the world or on earth unless some law in the state brings it into their local jurisdiction whether Municipal Law or an International Convention etc.
This Court further found that section 69(1) of the Penal Code was inconsistent with Section 5 of the Penal Code to the extent that it included the High Seas in respect of where the acts of piracy gentium are committed. It is section 5 which donates to or confers on the Kenyan court jurisdiction over matters under thePenal Code. It is the defining provision with regard to the jurisdiction of the Kenyan Courts in so far as the Penal Code is concerned. Section 5 is juridically paramount to and overrides Section 69 (1) to the extent of this inconsistency.
Therefore, the Court ruled that a natural and ordinary interpretation of Section 5 of the Penal Code is that the Magistrates Court lacked jurisdiction to try the Applicants in this case in respect of the charge of piracy on the high seas under section 69 (1) of the Penal Code. Offences repealed without a saving clause It is presumption of the law is that no person may be convicted of an offence which did not exist at the time of commission or omission whatever the case may be. In the case of a repealed statute/section of the law, the drafters more often than not provide a saving clause or transitional provisions that limit the scope of such repeal usually providing that the said sections shall continue to apply to cases initiated under the same. In the same case, the effect of lack of succinct transitional provisions was brought out. Nine accused persons were
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charged with the offence of piracy on the high seas under section 69 of the Penal Code. Before the trial was concluded, the section was repealed by the Merchant Shipping Act of 2009 which, among other sections, contained a provision creating the offence of piracy. There were no saving clauses. The court took the view that upon repeal, a section of law ceased to exist and no offence could be created under the (non-existent) section. Consequently no court could convict or sentence on the basis of the repealed section. Similarly, the court took the view that the accused persons could not be re-arrested and charged afresh under the Merchant Shipping Act, 2009 as the offences with which they would have been subsequently charged with would be deemed to be ex post facto crimes which were prohibited under the Kenyan Constitution. Bishop Joseph Kimani & 20 others v The Attorney General, COE & PSC [2010] Eklr Constitutional Petition No. 4 of 2010 Interim Constitutional Dispute Resolution Court at Nairobi (IICDRC) V. K Mavisis. N. Mukunya & S. Ole kantai JJ. August 2, 2010 The petitioners, officials of Mombasa Pastors Fellowship, had filed a petition in the Interim Constitutional Dispute Resolution Court (IICDRC) against the Chairman, Parliamentary Select Committee on Constitution Review as the 3rd respondent. Reported By Njeri Githanga Separation of Powers and Parliamentary Privilege
The 3rd respondent opposed the petition on the ground that Court had no jurisdiction to hear a suit filed against the Chairman Parliamentary Select Committee in respect of either his own act or acts of a Committee in exercise of the powers conferred and vested by the Constitution of Kenya, any legislation and the Standing Orders as it had parliamentary privilege. The issue was whether the suit against under the 3rd respondent, one of the Constitution Review organs, was sustainable.
Sections 56 and 57 of the Constitution and Section 29 of the National Assembly (Powers and Privileges) Act granted privilege to Parliament, its members and Committees who could not be sued for words spoken or actions taken in an official capacity. That essentially meant that the Parliamentary Select Committee which was one of the review organs through which the constitution review process was to go through could not be sued. The court observed that The framers of the Constitution Review Act left a lacuna in law, which may cause injustice. Parliament may consider giving a fresh look to the said provision.
A screen grab of The Kenya Law Reports profile on the popular social network website, Facebook. The Kenya Law Reports Group is attracting a lot of membership
A screen grab of The Kenya Law Reports informercial video running on the KLR profile on the popular video-sharing website, Youtube The profile address is www.youtube.com/kenyalawreports
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The KLR Land Law CD is a collection of 25 fully revised and updated Acts of Parliament governing the legal regime of land ownership, transfer and general land regulatory framework
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The Bench Bulletin

A publication of The National Council for Law Reporting

erry Christmass Merr y Christmass

THE NATIONAL COUNCIL FOR LAW REPORTING

STRATEGIC PLAN 2009-2012

Nclr Adopts First StrategIc Plan

Transforming Legal Information Into Public Knowledge

Inside KenyaS First Virtual Court

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