Bench Bulletin - Issue 13 - Kenya Law Reports
Bench Bulletin - Issue 13 - Kenya Law Reports
Bench Bulletin - Issue 13 - Kenya Law Reports
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The <strong>Bench</strong> <strong>Bulletin</strong><br />
A publication of The National Council for <strong>Law</strong> Reporting<br />
Merry Christmass<br />
Merry Christmass<br />
Merry Christmass<br />
Merry Christmass<br />
rry Christmass<br />
Merry Christmass<br />
Merry Christmass<br />
The <strong>Bench</strong> <strong>Bulletin</strong> is the deinitive intelligence briefing for<br />
<strong>Kenya</strong>’s judicial oficers, the law practitioner, managers<br />
and the business people. It is a quarterly digest of recent<br />
developments in law, particularly, case law, new legislation in<br />
the form of Acts of Parliament, rules and regulations, pending<br />
legislation contained in Bills tabled before Parliament and<br />
selected Legal Notices and Gazette Notices.<br />
<strong>Issue</strong> <strong>13</strong>: July - December 2010<br />
THE NATIONAL COUNCIL<br />
FOR LAW REPORTING<br />
STRATEGIC PLAN<br />
2009-2012<br />
Nclr Adopts First StrategIc Plan<br />
Transforming Legal Information Into Public Knowledge<br />
Annual Meeting Of The Association of<br />
Reporters Of Judicial Decisions - Las Vegas, USA<br />
Inside <strong>Kenya</strong>’S First Virtual Court<br />
CHARGE<br />
KENYA LAW REPORTS<br />
INDEX<br />
KENYA LAW REPORTS<br />
KLR MONTHLY<br />
INDEX<br />
Milimani Commercial Courts Ground Floor, Ngong Road<br />
Tel: (+254) (020) 271 27 67, 271 92 31<br />
Fax: (+254) (020) 2712694, NAIROBI-KENYA<br />
Email: info@kenyalaw.org<br />
www.kenyalaw.org<br />
Facebook: <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
www.youtube.com/kenyalawreports<br />
KLR MONTHLY<br />
May 2010<br />
NATIONAL COUNCIL FOR LAW REPORTING<br />
James Karoki Wangeci v Republic ... . ...... . ...... . . . . 22<br />
CONSTRUCTIVE PROVOCATION<br />
When constructive provocation can be construed<br />
Josiah Afuna Angulu v Republic .. .. . ..... ....... . . 91<br />
ELECTORAL LAW<br />
Service – mode of service of an election petition<br />
Omiti v Walter Enock Nyambati Osebe & 2 others ... . ...... . ...... . . ........... 9<br />
EXHIBITS Procedure for production of exhibits - need for an exhibit to be<br />
before being produced as evidence<br />
Chris Kasamba Karani v Republic .................. . . ...... . . . ..... ....... . . . 68<br />
RIGHTS OF THE ACCUSED<br />
Record showing the accused was taken to court six months after his arrestwhether<br />
his constitutional rights were violated<br />
Adan Muraguri Mungara v Republic Criminal Appeal .......... . 19<br />
STATUTORY POWER OF SALE<br />
Where the purchase price was paid after four days instead of the required<br />
25% a the fa l of the hammer and the balance within sixty days-whether<br />
the auctioneer diligently discharged his duties in exercising his discretion<br />
Credit Finance & another . .. . .... . . 40<br />
OVERRIDING OBJECTIVE<br />
Applicability of the principle of the overriding objective - application for<br />
stay of execution - duty of the court to treat both parties with equality<br />
African Safari Club Limited v Safe Rentals Limited ... .. . .. 48<br />
SERVICE Service of notice of appeal on persons affected – time within which the<br />
memorandum and record notice of appeal should be served<br />
Ayub Murumba Kakai v Town Clerk of Webuye County Council .... ....... ....... . 5<br />
Milimani Commercial Courts Ground Floor, Ngong Road<br />
Tel: (+254) (020) 271 27 67, 271 92 31<br />
Fax: (+254) (020) 2712694, NAIROBI-KENYA<br />
Email: info@kenyalaw.org<br />
www.kenyalaw.org<br />
Facebook: <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
www.youtube.com/kenyalawreports<br />
May 2010<br />
NATIONAL COUNCIL FOR LAW REPORTING<br />
CHARGE<br />
James Karoki Wangeci v Republic . . . . . . . .. . . . 22<br />
CONSTRUCTIVE PROVOCATION<br />
When constructive provocation can be construed<br />
Josiah Afuna Angulu v Republic . .. . 91<br />
ELECTORAL LAW<br />
Service – mode of service of an election petition<br />
Omiti v Walter Enock Nyambati Osebe & 2 others . . . . .. . . 9<br />
EXHIBITS Procedure for production of exhibits - need for an exhibi to be<br />
before being produced as evidence<br />
Chris Kasamba Karani v Republic .. . . . . . . . 68<br />
RIGHTS OF THE ACCUSED<br />
Record showing the accused was taken to court six months after his arrestwhether<br />
his constitutional rights were violated<br />
Adan Muraguri Mungara v Republic Criminal Appeal . . . . . . . . 19<br />
STATUTORY POWER OF SALE<br />
Where the purchase price was paid after four days instead of the required<br />
25% a the fa l of the hammer and the balance within sixty days-whether<br />
the auctioneer diligently discharged his duties in exercising his discretion<br />
Credit Finance & another .. . . . .. . . . ..... 40<br />
OVERRIDING OBJECTIVE<br />
Applicability of the principle of the overriding objective - application for<br />
stay of execution - duty of the cour to treat both parties with equality<br />
African Safari Club Limited v Safe Rentals Limited . . . ... .... ... .. 48<br />
SERVICE Service of notice of appeal on persons affected – time within which the<br />
memorandum and record notice of appeal should be served<br />
Ayub Murumba Kakai v Town Clerk of Webuye County Council . . 5<br />
Introducing The Klr Monthly<br />
Plus:<br />
*Legislative Update<br />
*Case <strong>Law</strong><br />
*<strong>Law</strong> Reform And New Jurisprudence <strong>Issue</strong>s<br />
KLR on Facebook and Youtube<br />
Transforming Legal Information Into Public Knowledge
The <strong>Bench</strong> <strong>Bulletin</strong><br />
A publication of The National Council for <strong>Law</strong> Reporting<br />
The <strong>Bench</strong> <strong>Bulletin</strong> is the definitive intelligence briefing for<br />
<strong>Kenya</strong>’s judicial officers, the law practitioner, managers<br />
and the business people. It is a quarterly digest of recent<br />
developments in law, particularly, case law, new legislation in<br />
the form of Acts of Parliament, rules and regulations, pending<br />
legislation contained in Bills tabled before Parliament and<br />
selected Legal Notices and Gazette Notices.<br />
<strong>Issue</strong> 12: April-June 2010<br />
Farewell To Mrs. Gladys Boss Shollei<br />
NCLR Moves Towards Paperless Office Environment<br />
NCLR Strategic Planning Retreat<br />
Judicial Opinions<br />
Legislative Update<br />
<strong>Issue</strong>s For <strong>Law</strong> Reform From The <strong>Bench</strong><br />
The National Council for <strong>Law</strong> Reporting - The Official <strong>Law</strong> Reporter of the Republic of <strong>Kenya</strong><br />
Thanks to all Our Partners
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From The Courts - Interim Independent Constitutional Dispute Resolution Court (IICDRC) - Cases<br />
The Hon. Mr. Justice J. E. Gicheru, EGH,<br />
Chief Justice of <strong>Kenya</strong>, Chairman<br />
THE NATIONAL COUNCIL FOR LAW<br />
REPORTING<br />
MEMBERS<br />
The Hon Mr. Justice Johnson Evan Gicheru, EGH<br />
Chief Justice, Chairman<br />
The Hon Mr Justice P. K. Tunoi<br />
Judge of the Court of Appeal<br />
The Hon Lady Justice J. W. Lesiit<br />
Judge of the High Court<br />
Mrs L. A. Achode<br />
Registrar, High Court of <strong>Kenya</strong><br />
Dr. Ben Sihanya<br />
Dean, School of <strong>Law</strong>, University of Nairobi<br />
Mr. Antony Oteng’o Ombwayo<br />
Attorney-General’s Representative<br />
Mr. Zablon M. O. Kona<br />
Government Printer’s Representative<br />
Mr. Evans Monari<br />
<strong>Law</strong> Society of <strong>Kenya</strong><br />
Ms Florence Muoti Mwangangi<br />
<strong>Law</strong> Society of <strong>Kenya</strong><br />
Mr. Michael M. Murungi<br />
Editor/C.E.O<br />
Table of Contents<br />
1. The Council Members ...............................................1<br />
2. The Inbox .......................................................................2<br />
3. Cases Reported ............................................................3<br />
4. Digest of Cases Featured .........................................5<br />
5. Editor’s Note ...............................................................15<br />
6. Judiciary ICT Strategic Policy and Plan............16<br />
7. Editorial Department ..............................................18<br />
8. Strategic Planning Quality Assurance and<br />
Performance Department.......................................22<br />
9. <strong>Law</strong>s of <strong>Kenya</strong> Department ...................................25<br />
10. Legislative update ...................................................27<br />
11. The <strong>Law</strong> Society of <strong>Kenya</strong> Justice Cup,<br />
2010 ............................................................................ 33<br />
12. Feature Case ............................................................ 34<br />
<strong>13</strong>. Court of Appeal .......................................................36<br />
14. High Court .................................................................57<br />
15. Interim Independent Constitutional Dispute<br />
Resolution Court (IICDRC) .................................79<br />
16. <strong>Law</strong> Reform and Emerging Jurisprudence ...91<br />
EDITOR<br />
Michael Murungi<br />
EDITORIAL ASSISTANT<br />
Esther Nyaiyaki<br />
CONTRIBUTORS<br />
Michael Murungi<br />
Esther Nyaiyaki<br />
Ann Asugah<br />
Monica Achode<br />
Nicholas Okemwa<br />
Cornelius Lupao<br />
Andrew Halonyere<br />
Njeri Githang’a Kamau<br />
Nelson Tunoi<br />
Emma Kinya<br />
DESIGN AND LAYOUT<br />
Catherine Moni<br />
John Muriuki<br />
Geoffrey Andare<br />
PROOFREADERS<br />
Phoebe Ayaya<br />
Innocent Ngulu<br />
Contacts<br />
National Council for law Reporting<br />
Milimani Commercial Courts<br />
Ground Floor, Ngong Road<br />
Email: info@kenyalaw.org<br />
Tel: (+254) (020) 271 27 67, 271 92 31<br />
Fax: (+254) (020) 2712694<br />
NAIROBI, KENYA<br />
www.kenyalaw.org<br />
Facebook: <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
www.youtube.com/kenyalawreports<br />
Disclaimer: While the National Council for <strong>Law</strong> Reporting has made every effort to ensure both the accuracy and<br />
comprehensiveness of the information contained in this publication, the Council makes no warranties or guarantees<br />
in that respect and repudiates any liability for any loss or damage that may arise from an inaccuracy or the<br />
omission of any information.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
1
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
What They Said<br />
“Today is a great day for <strong>Kenya</strong>… I feel honoured to be your President at this moment<br />
because this is the most important day in the history of our nation since independence”.<br />
President Mwai Kibaki during the inauguration of <strong>Kenya</strong>’s new Constitution at Uhuru Park on August<br />
27, 2010<br />
His Excellency Hon. Mwai Kibaki<br />
The Hon. Mr. Justice<br />
P. N. Waki<br />
“We declare that section 204 [of the Penal Code] shall, to the extent that it provides that the<br />
death penalty is the only sentence in respect of the crime of murder is inconsistent with<br />
the letter and spirit of the CONSTITUTION, which….makes no such mandatory provision….<br />
Unfortunately in this country no one, as far as we are aware, has raised the issue of whether<br />
the delay in execution of prisoners who have been on death row for a long period of time<br />
is inconsistent with constitutional provisions and such issue is not raised before us in this<br />
appeal”.<br />
The Court of Appeal (RSC Omolo, PN Waki & JW Onyango Otieno JJ A) in Godfrey Ngotho Mutiso v<br />
Republic [2010] eKLR, July 30, 2010<br />
“The right is to trial without undue delay. It is not a right not to be tried after undue delay….<br />
The breach of the right to personal liberty is not trial-related and it did not render the<br />
subsequent trial a nullity”.<br />
The Court of Appeal (EM Githinji, PN Waki & A Visram JJ A) in (Julius Kamau Mbugua v Republic )<br />
[2010] KLR (October 8, 2010) when it reviewed previous cases over which there had been a diversity<br />
of opinion and held that where the right (under the now repealed Constitution) of an arrested person<br />
to be brought to court within a reasonable time was violated, it was a breach of a civil right, though<br />
constitutional in nature, which was beyond the statutory duty of a criminal court and which was<br />
compensatable by damages or by a Habeas corpus application.<br />
The Hon. Mr. Justice<br />
E. M. Githinji<br />
“There was no legitimate governmental objective or purpose that would be served by<br />
denying the inmates the right to vote in a referendum…The people’s constituent right to vote<br />
in a referendum is a basic human right”.<br />
The Interim Independent Constitutional Dispute Resolution Court (S. Mukunya, J. Mohamed, S. Omondi,<br />
S. ole Kantai & M.N. Kioga JJ) in its judgment on June 23, 2010 in which it ruled that prisoners of sound<br />
mind over the age of 18 years and who had not committed an electoral offence were entitled to vote in<br />
the national referendum on the New Constitution of <strong>Kenya</strong>.<br />
“Regrettably, in the circumstances I cant hand over my copy [of the Court<br />
of Appeal Rules] to you.”<br />
October 11, 2010 - Court of Appeal Judge M. Ole Keiwua in Nairobi to lawyer H.A.<br />
Omar who while arguing an application via video-link from Mombasa during<br />
<strong>Kenya</strong>’s first video-conferenced court session, was having difficulties in crossreferencing<br />
to his copy of the Rules.<br />
2 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Cases Reported<br />
COURT OF APPEAL<br />
Ali hassan Abdirahman v Mahamud Muhumed Sirat & 2 others<br />
Civil Appeal No 26 of 2010 ......................................................................................................................................................................... 51<br />
Attorney General v Hon. Prof. George Saitoti Civil Application No. Nai 75 of 2007....................................................... 43<br />
Aneriko M. Simiyu v Redempta Simati Civil Appeal No. 227 of 2004 ................................................................................... 53<br />
David Irungu Muriithi v Republic Criminal Appeal No. 379 of 2009................................................................................... 53<br />
Francis Gachoki Murage v Juliana Wainoi Kinyua and another<br />
Civil Appeal (Application) No. <strong>13</strong>9 of 2009 ......................................................................................................................................... 37<br />
Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008................................................................ 45<br />
Jacob Kirimu Kabiru v Republic Criminal Appeal No. 363 of 2009........................................................................................ 52<br />
Joseph Kiangoi v Wachira Waruru and 2 Others Civil Appeal (Application) No. <strong>13</strong>0 of 2008 ................................ 39<br />
Joseph Nathaniel Kipruto arap Ng’ok v Attorney General & another [2010] eKLR<br />
Civil Appeal No. 326 of 2005...................................................................................................................................................................... 39<br />
<strong>Kenya</strong> Anti-Corruption Commission v First Mercantile Securities Corporation<br />
Civil Appeal No. 194 of 2008 ..................................................................................................................................................................... 40<br />
<strong>Kenya</strong> Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 .................................................. 41<br />
<strong>Kenya</strong> Shell Limited v Milkah Kerubo Onkoba Civil Appeal No. 298 of 2004 .................................................................. 55<br />
Mwakwere Chirau Ali v Ayub Juma Mwakesi and Another Civil Appeal No. 38 of 2010 ........................................... 36<br />
Mwango Jambo Chilango v Republic Criminal Appeal No. 415 of 2009 .............................................................................. 47<br />
R v Public Procurement Administrative Review Board & 3 Others<br />
Civil Application No Nai 63 of 2010 (UR 43/2010).......................................................................................................................... 44<br />
Salim Mohammed Oyuga v Republic Criminal Appeal No. 207 of 2009 .............................................................................. 48<br />
Standard Limited v G.N. Kagia t/a Kagia & Company Avocates Civil Appeal No115 of 2003................................... 49<br />
Wellington Nganga Muthiora v Akamba Public Road Services Limited & Another<br />
Civil Appeal No. 260 of 2004 ..................................................................................................................................................................... 50<br />
HIGH COURT<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others [2010] eKLR Election Petition No. 3 of 2008............ 58<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others Election Petition No. 3 of 2008........................................ 74<br />
Harun Thungu Wakaba and 20 others v The Attorney General [2010]<br />
Misc.Appl. No. 1411(OS) of 2004 (consolidated).............................................................................................................................. 62<br />
In Re the Matter of Zipporah Wambui Mathara [2010] eKLR Bankruptcy Cause No. 19 of 2010....................... 69<br />
Kingsway Motors Limited v Corner Garage Transport Limited Civil Suit No <strong>13</strong>90 of 1999.................................... 61<br />
Kerosi Ondieki v Minister of State for Defence and another Petition No. 181 of 2010 ............................................. 68<br />
Mary Ariviza v Interim Independent Electoral Commission of <strong>Kenya</strong> & another [2010] eKLR<br />
Misc. Civil Application No. 273 of 2010 ................................................................................................................................................ 66<br />
Mohamed Aktar Kana v Attorney General Constitutional Application No. 544 of 2010 ........................................... 71<br />
Republic v Taiko Kitende Muinya Criminal Case No. 65 of 2010 ............................................................................................ 67<br />
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc<br />
Application No. 434 of 2009....................................................................................................................................................................... 76<br />
Republic v Danson Mgunya and Another Criminal Case No 26 of 2008.............................................................................. 73<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010 3
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Cases Reported<br />
Salina Soote Rotich v Caroline Cheptoo & 2 Others Civil Appeal No. 48 of 2010 .......................................................... 64<br />
Sobeth Developers Ltd v South Nyanza Sugar Co. Ltd Civil Case No. 85 of 2000 ........................................................... 57<br />
Zuhura Suleiman v the Commissioner of Police and 2 others Misc. Criminal Application No. 441 of 2010.... 71<br />
William Maina Kamanda v Maragaret Wanjiru Kariuki & 2 Others Election Petition 5 of 2008.......................... 65<br />
INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE COURT (IICDRC)<br />
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others Constitutional<br />
Petition No. 5 of 2010 ................................................................................................................................................................................... 81<br />
Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR Constitutional<br />
Petition No. 3 of 2010 ................................................................................................................................................................................... 83<br />
Bishop Joseph Kimani and 2 Others v the Attorney General and two others Constitutional<br />
Petition No. 4 of 2010.................................................................................................................................................................................... 96<br />
Eric Nicholas Omondi & 8 Others v AG & 2 Others Constitutional Petition No. 2 of 2010 ...................................... 86<br />
Mary Ariviza and another v Interim Independent Electoral Commission of <strong>Kenya</strong> & 3 others [2010]<br />
eKLR Constitutional Petition No. 7 of 2010 ....................................................................................................................................... 88<br />
Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission<br />
(2010 eKLR) Constitutional Petition No. 1 of 2010 ....................................................................................................................... 79<br />
4 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
COURT OF APPEAL<br />
CIVIL PRACTICE AND PROCEDURE<br />
Application - application for extension of time to file an intended appeal-applicant making the application 4 years after<br />
the decision being appealed against was delivered-effect of the inordinate delay on the application-factors considered by<br />
court before grant of application for stay pending appeal-Court of Appeal Rules, rule4.<br />
Attorney General v Hon. Prof. George Saitoti Civil Application No. Nai 75 of 2007.................................................................... 43<br />
Appeal – appeal against a decision review – claims that the court had erred in hearing a second application for review<br />
contrary to the rules of procedure – dispute involving land - manner in which applications for review ought to be dealt<br />
with – whether the review was within the ambit of the review jurisdiction – whether the appeal had merit - Civil Procedure<br />
Rules Order 44.Aneriko M. Simiyu v Redempta Simati Civil Appeal No. 227 of 2004<br />
Civil Practice and Procedure – appeal – appeal against a decision of the court awarding the respondent damages in<br />
a suit for – negligence – where a diesel tank belonging to the appellant leaked into the respondent’s well – principles<br />
established in a claim for damages – defence of Act of God – duty of the injured party to mitigate the damage - principle<br />
of environmental law that the polluter must pay – whether failure to disclose the specific tort committed was fatal to the<br />
claim – rule in Rylands v Fletcher – whether the facts established the appellant’s liability.<br />
<strong>Kenya</strong> Shell Limited v Milkah Kerubo Onkoba Civil Appeal No. 298 of 2004 ................................................................................ 55<br />
Appeal – second appeal against a decision of the lower and superior court dismissing suit for damages in a road traffic<br />
accident – appellant having produced a police abstract as proof ownership of the motor vehicle – evidentiary and probative<br />
value of a police abstract - whether a police abstract produced in proof of ownership of the subject vehicle was enough<br />
evidence – appellate court jurisdiction to hear the appeal.<br />
Wellington Nganga Muthiora v Akamba Public Road Services Limited & Another Civil Appeal No. 260 of 2004 ..................... 50<br />
Damages – calculation of damages-calculation of damages being a judicial functions as opposed to being a ministerial<br />
act -whether a court can delegate calculation of damages to a different person such as the Deputy Registrar.<br />
<strong>Kenya</strong> Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 .................................................................... 41<br />
Legal representation – where the Attorney General had entered appearance and filed defence on behalf of the second<br />
respondent – duty of parties to a suit to file a record of change of advocates – whether the Attorney General had<br />
unquestionable right to represent the second respondent in civil proceedings - Government Proceedings Act (cap 40)<br />
section 34;Civil Procedure Rules (cap 21 Sub Leg) Orders III rule 9A, VI.<br />
Joseph Nathaniel Kipruto arap Ng’ok v Attorney General & another [2010] eKLR Civil Appeal No. 326.................................. 39<br />
Stay – application for orders of certiorari and mandamus made by High Court to be stayed pending the determination of<br />
intended appeal – allegation that High Court only had jurisdiction to grant orders of certiorari, prohibition and mandamus<br />
and not a nullification contract – application defective – where the application sought for stay of order rather than stay<br />
of execution – overriding objective of the Appellate jurisdiction Act – whether the court could treat the application as an<br />
application for stay of execution – whether the High Court had jurisdiction to declare the contract null and void – Rule 5<br />
(2) (b) Court of Appeal Rules and sections 3A, 3B of the Appellate Jurisdiction Act and section 9 (5) <strong>Law</strong> Reform Act<br />
R v Public Procurement Administrative Review Board & 3 Others Civil Application No Nai 63 of 2010<br />
(UR 43/2010)............................................................................................................................................................................................. 44<br />
Striking out - striking out record of appeal for lack of service- application on the ground that the appellants/respondents<br />
had failed to serve the notice of appeal on the 3rd defendant in the High Court; a person directly affected by the appeal-test<br />
to be applied to determine a directly affected party-where the 3rd defendant was out of court’s jurisdiction and attempts<br />
to serve her had been futile- overriding objective- interpretation of the overriding objective by the court – where in the<br />
circumstances, justice was to be found in sustaining the appeal instead of striking it out on a technicality-whether the<br />
application could be allowed- Court of Appeal Rules, rule 76(1).<br />
Joseph Kiangoi v Wachira Waruru and 2 Others Civil Appeal (Application) No. <strong>13</strong>0 of 2008 .................................................... 39<br />
Succession - second appeal against a decree passed by a subordinate court- jurisdiction of the court- whether the court<br />
had the jurisdiction to determine a second appeal on a succession matter- Constitution of <strong>Kenya</strong>, section 64 (1) - Appellate<br />
Jurisdiction Act (Cap 9), Section 3 (1).<br />
Francis Gachoki Murage v Juliana Wainoi Kinyua and another Civil Appeal (Application) No. <strong>13</strong>9 of 2009 ........................... 37<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
5
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
Setting aside - appeal against exercise of judicial discretion to set aside judgment entered in default of appearance and<br />
defence - principles governing the exercise of the court’s discretion to set aside a judgment obtained exparte - principles<br />
on which an appellate court can interfere with the exercise of judicial discretion by a Judge.<br />
Joseph Nathaniel Kipruto arap Ng’ok v Attorney General & another [2010] eKLR Civil Appeal No. 326 ............................. 39<br />
CONTRACT<br />
Termination of contract - termination of contract of service where terms of the contract do not specify duration of notice<br />
before the contract should be terminated-need for a reasonable notice to be given-what constitutes reasonable notice.<br />
<strong>Kenya</strong> Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 ..................................................................41<br />
Termination of contract of service - whether a party to a contact of service need necessarily give any reason for<br />
termination of the contract as against the other party.<br />
<strong>Kenya</strong> Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009 ................................................................ 41<br />
Terms of contract of service - where terms of contract of service prescribe how disciplinary action against an employee<br />
under the terms should be disciplined-employee alleging that his fundamental rights were breached during a disciplinary<br />
action-whether a court can import and consider rules of natural justice in adjudicating on a dispute involving a contract<br />
whose terms did not contain matters on rules of natural justice.<br />
<strong>Kenya</strong> Revenue Authority v Menginya Salim Murgani CivilAppeal No. 108 of 2009...................................................................41<br />
COURT STRUCTURE - court of Appeal-jurisdiction-appeals from the election court-jurisdiction of the Court of Appeal<br />
to hear appeals from an Election Court- preliminary objection to the effect that the Court had no jurisdiction to hear<br />
appeals arising from the High Court on the question of validity of an election of a Member of Parliament- establishment<br />
of the Court of Appeal by the Constitution under Section 64(1)- procedure to be adopted by the election court with regard<br />
to appeals-whether the National Assembly and Presidential Elections Act donated the power to hear appeals from an<br />
Election Court to the Court of Appeal- Constitution of <strong>Kenya</strong> Section 64(1)- National Assembly and Presidential Elections<br />
Act (Cap. 7) section 2 and 23.<br />
Mwakwere Chirau Ali v Ayub Juma Mwakesi and Another Civil Appeal No. 38 of 2010............................................................ 36<br />
CONSTITUTIONAL LAW - constitutional right-right to life-enjoyment of right to life-where a sentencing regime imposes<br />
a mandatory sentence of death on all proven murder cases-whether an accused person sentenced under such a regime<br />
should be given a chance for mitigation on the basis of his criminal culpability.<br />
Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008 ............................................................................ 45<br />
CRIMINAL PRACTICE AND PROCEDURE<br />
Appeal – second appeal – appeal against conviction and 15 year sentence on a charge of defilement of a child - definition<br />
of the word “defilement” – whether the appeal had merit – Penal Code section 145(1) (Cap63).<br />
Mwango Jambo Chilango v Republic Criminal Appeal No.415 of 2009.........................................................................................47<br />
Appeal – second appeal – appeal against a conviction on a charge of robbery with violence – appellant convicted on the<br />
doctrine of recent possession – appellant convicted on the evidence of a single witness – whether that doctrine had been<br />
applicable – failure by prosecution to call some witnesses – claims of discrepancies in the dates adduced – court duty to<br />
call witnesses where evidence was essential – whether omissions and discrepancies were curable – whether the case had<br />
been proven to the required standards - Evidence Act (Cap 80) section 143, Penal Code (Cap 63) section 296 (2).<br />
Salim Mohammed Oyuga v Republic Criminal Appeal No. 207 of 2009.........................................................................................48<br />
Charge - defective charge sheet – charge sheet failing to state the word “unlawfully” as part of the particulars of the<br />
charge – effect of – whether the omission prejudiced the accused – whether the omission could be cured by the provisions<br />
of section 382 of the Criminal Procedure Code (Cap 75) – appellant not charged with others - evidence – identification –<br />
identification by recognition – appellant being an uncle to the complainant – appellant claiming that an identification<br />
parade should have been conducted – concurrent findings from the lower and superior court – whether the appellate<br />
court could challenge that.<br />
Mwango Jambo Chilango v Republic Criminal AppealNo.415 of 2009..........................................................................................47<br />
Plea bargaining – appellant’s murder charge reduced to manslaughter after plea bargaining-appellant sentenced to 10<br />
years imprisonment-appeal on the ground that appellant’s constitutional right under section 72 (3) (b) of the repealed<br />
Constitution had been breached and his mitigating factors had not been considered while sentencing- where there was<br />
no right of appeal against a sentence following a plea bargaining agreement -factors to be considered by the trial court<br />
6 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
before sentencing-where the trial court had complied with all the procedures relating to plea agreements -whether the<br />
sentence could be reduced- Criminal Procedure Code(Cap 75) sections <strong>13</strong>7A to E, Section <strong>13</strong>7L (1) and 329 (c)<br />
David Irungu Muriithi v Republic Criminal Appeal No. 379 Of 2009............................................................................................53<br />
Plea bargaining – appellant’s murder charge reduced to manslaughter after plea bargaining-appellant sentenced to 10<br />
years imprisonment-appeal on the ground that appellant’s mitigating factors had not been considered while sentencingwhere<br />
there was no right of appeal against a sentence following a plea bargaining agreement -factors to be considered<br />
by the trial court before sentencing-failure by the court to take into consideration the willingness of the appellant to assist<br />
the dependants of the victim since he was a family member-whether the sentence could be reduced- Criminal Procedure<br />
Code(Cap 75) sections <strong>13</strong>7A to E, <strong>13</strong>7L (1) and 329 (c)<br />
Jacob Kirimu Kabiru v Republic Criminal Appeal No. 363 of 2009...............................................................................................52<br />
ELECTION LAW – interlocutory appeal – appeal against decision of the High Court dismissing an application for<br />
dismissal of an election petition, by holding that the 1st respondent was not in breach of the law in filing the election<br />
petition since the election court could not invalidate his National Identity Card and Passport – ground; that the speaker<br />
of the National Assembly acted on a certificate issued by the election court when the law made provisions for an appeal<br />
against the decision of that court - whether such an appeal would be efficacious once the writ had been issued – whether<br />
the appeal had merit – National Assembly and Presidential Elections Act (Cap 7) section 23(4).<br />
Ali hassan Abdirahman v Mahamud Muhumed Sirat & 2 OthersCivil Appeal No 26 of 2010....................................................51<br />
JURISDICTION – jurisdiction of the Court of Appeal to adjudicate on alleged contravention of one’s constitutional rights<br />
as enshrined in the Constitution of <strong>Kenya</strong>.<br />
Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008..............................................................................45<br />
SENTENCE – death sentence-inconsistency of section 204 of the Penal Code (cap 63) <strong>Law</strong>s of <strong>Kenya</strong> vis-à-vis Constitutional<br />
Provision for Protection against Inhuman or Degrading Punishment or Treatment-whether a conviction for murder should<br />
necessarily attract death sentence.<br />
Godfrey Ngotho Mutiso v Republic [2010] eKLR Criminal Appeal 17 of 2008..............................................................................45<br />
TORT<br />
Libel – essence and rationale for award of damages in libel<br />
Standard Limited v G.N. Kagia t/a Kagia & Company Advocates Civil Appeal No115 of 2003 49<br />
Libel – assessment of damages by the trial court in an action for libel-factors the trial court should consider in assessment<br />
of damages in an action for libel.<br />
Standard Limited v G.N. Standard Limited v G.N. Kagia t/a Kagia & Company Advocates Civil Appeal No115 of 2003.......49<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
7
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
HIGH COURT<br />
ARBITRATION – arbitration award – setting aside of arbitration award – stay of effect of award – grounds of bias –<br />
arbitration being in regard to several suits involving both parties – arbitrator having been agreed upon by both parties<br />
– test for bias in conduct of arbitration proceedings - grounds of setting aside an arbitrator’s award - procedure of<br />
moving the court in such applications - whether the arbitrator misconducted himself in the manner he presided over the<br />
arbitration - Civil Procedure Act (Cap 21) section 3A Arbitration Act (4 of 1995) sections 35, 37 Civil Procedure Rules<br />
Order 45 rule 3(1), 15, and 19.<br />
Sobeth Developers Ltd v South Nyanza Sugar Co. Ltd Civil Case No. 85 of 2000............................................................................ 57<br />
CONTRACT – contract for transportation of goods–where transporter (common carrier) inserts an exclusion clause in the<br />
contract exempting it from liability arising from damage to the goods transported-whether such an exclusion clause can<br />
exempt the transporter from the liability arising from damage occasioned to the goods transported-meaning of common<br />
carrier.<br />
Kingsway Motors Limited v Corner Garage Transport Limited Civil Suit No <strong>13</strong>90 of 1999........................................................... 61<br />
AGENCY – principal and agent – relationship between a returning officer and the Electoral body- where one is deemed an<br />
agent if he acts for another or by operation of the law–presumption in law that a statutory body appointed responsible,<br />
knowledgeable and honest officers in performance of its Constitutional mandate – mandate of the 2nd respondent in<br />
carrying out elections in Kirinyaga Central Constituency - duty of the 3rd respondent to be responsible for the negligence,<br />
want of care and failure to conduct and conclude free and fair elections of the 2nd respondent unless there was evidence<br />
of malpractices for the benefit of the 2nd respondent-whether the 3rd respondent was liable for the acts and omissions of<br />
the 2nd respondent – Constitution of <strong>Kenya</strong>, section 41.<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others [2010] eKLR Election Petition No. 3 of 2008....................................58<br />
ADMIRALTY LAW -Piracy -jurisdiction of the <strong>Kenya</strong>n Courts over piracy on High Seas-applicants charged with the offence<br />
of Piracy on High Seas- jurisdiction of the Courts of <strong>Kenya</strong> extending to every place within <strong>Kenya</strong>, including territorial<br />
waters under section 5 of the Penal Code -where the laws under which the applicants were charged did not provide for<br />
an express definition of what constituted “the High Seas” -whether High Seas was within the territorial waters of <strong>Kenya</strong><br />
-whether <strong>Kenya</strong>n Courts had jurisdiction to try the charges against the applicants in the case – whether the High Seas<br />
were outside the territorial jurisdiction of the <strong>Kenya</strong>n Courts-Penal Code (Cap 63), Section 5, 69 (1) and 69 (3)<br />
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc. Application No 434 of 2009.........76<br />
BANKRUPTCY - stay of execution - application for stay of execution of order of committal to civil jail pending bankruptcy<br />
proceedings- application on the ground that the applicant was not in a position to appear before the official receiver to<br />
provide information for the composition and setting up of creditors meeting due to her incarceration-where the court had<br />
the discretion to issue an order of stay of execution in order to give the official receiver the opportunity to consolidate and<br />
administer the estate of the debtor –whether the application could be allowed- Bankruptcy Act Sections 9, 11 and 100.<br />
In Re the Matter of Zipporah Wambui Mathara [2010] eKLR Bankruptcy Cause No. 19 of 2010.............................................69<br />
CIVIL PRACTICE AND PROCEDURE - striking out of pleadings-striking out an election petition for want of service-where<br />
striking out of a petition on irregularity amounted to a denial of a fundamental right of equality before the law-where<br />
it was a general rule of law founded on public policy that matters before the court had to be determined on substantive<br />
merit without undue regard to technicalities or procedure - where striking out of pleadings was drastic and draconian<br />
which could only be resorted when the jurisdiction of the court had been properly invoked - whether the failure to serve<br />
the petition personally could entitle the petitioner to seek and obtain final or interlocutory judgment.<br />
Dickson Daniel Karaba v John Ngata Gitahi & 2 others [2010] eKLR Election Petition No. 3 of 2008......................................58<br />
CONSTITUTIONAL LAW<br />
Extradition - right of every citizen to be subjected to due process of the law-application to bring back a suspect to the<br />
<strong>Kenya</strong>n jurisdiction-the suspect having been arrested and removed from the Court’s jurisdiction without a warrant for<br />
arrest having been issued-where all extradition provisions had been disobeyed –whether the suspect had been illegally<br />
arrested, detained and removed from <strong>Kenya</strong>- Constitution of <strong>Kenya</strong>, 2010 section 81 (3)(f).<br />
Zuhura Suleiman v the Commissioner of Police and 2 others Misc. Criminal Application No. 441 of 2010...............................71<br />
Fundamental right and freedoms - limitation period-time within which to seek redress for breach of the rights- -limitation<br />
provisions under the Public Authorities Limitations Act – where there was no limitation under the Constitution -whether<br />
the Public Authorities Limitations Act could override the Constitution and be used to curtail rights provided under the<br />
Constitution- Constitution of <strong>Kenya</strong> section 3, Public Authorities Limitations Act.<br />
Harun Thungu Wakaba and 20 others v The Attorney General [2010] Misc.Appl. No. 1411(OS) of 2004 (consolidated).........62<br />
8 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
Fundamental rights and freedoms - breach of -award of damages-quantum of damages-whether the court could award<br />
general damages .<br />
Harun Thungu Wakaba and 20 others v The Attorney General [2010]Misc.Appl. No. 1411(OS) of 2004 (consolidated)..........62<br />
Fundamental rights and freedoms - locus standi to bring such applications-scope of persons to enforce fundamental<br />
rights and freedoms in the Bill of Rights- petition brought through the petitioner’s advocate-whether such a procedural<br />
technicality could cause the petition to be struck out-Constitution of <strong>Kenya</strong> 2010, Article 22, 159(d)<br />
Kerosi Ondieki v Minister of State for Defence and anotherPetition No.181 of 2010....................................................................68<br />
Fundamental rights and freedoms - protection against torture or inhuman treatment -claim that the plaintiffs had been<br />
subjected to interrogation and various acts of torture, inhuman and degrading treatments– sufficiency of facts- where the<br />
pleadings were supported by evidence -whether there was breach of the plaintiffs’ rights- Constitution of <strong>Kenya</strong> Sections<br />
70, 72(3 & 5), 74(1), 77, 78(1) and79 (1) - the Universal Declaration of Human Rights, Article 5.<br />
Harun Thungu Wakaba and 20 others v The Attorney General [2010]Misc.Appl. No. 1411(OS) of 2004 (consolidated)..........62<br />
Habeas Corpus - application for writ of habeas corpus -nature and scope of the order of habeas Corpus - where the subject<br />
of the application, a terrorist suspect, was absent from the jurisdiction of the High Court – whether the Habeas Corpus<br />
application could be declared spent- Criminal Procedure Code, Section 389 (1) - Constitution of <strong>Kenya</strong>, 2010 section 81 (3)(f).<br />
Zuhura Suleiman v the Commissioner of Police and 2 others Misc. Criminal Application No. 441 of 2010...............................71<br />
Interpretation of the Constitution - Constitutional duties of the Defence Force- where one of the factors that determined<br />
the strength of a Defence Force was the quality of the people serving therein- whether fundamental rights and freedoms<br />
were absolute or whether they could be limited by other reasonable and justifiable considerations –where the alleged<br />
discrimination was in the interest of the health of the recruits -whether the requirements for the recruitment were<br />
discriminatory- Constitution of <strong>Kenya</strong> 2010, Article 241 (3).<br />
Kerosi Ondieki v Minister of State for Defence and another Petition No. 181 of 2010..................................................................68<br />
Interpretation of various provisions in the Bill of Rights - recruitment into the military-application for a temporary<br />
injunction to restrain the 1st respondent from recruiting service men/women and constabularies into the armed forces in<br />
contravention of the Constitution - application on the ground that the conditions set out for recruiting into the armed forces<br />
manifestly and grossly contravened or violated the Bill of Rights as contained in Chapter 3 of the Constitution - where it<br />
was alleged that there was discrimination in the requirements for recruitment - whether the requirements stipulated by<br />
the 1st respondent for recruitment were discriminatory and thus contrary to Article 27of the Constitution-Constitution<br />
of <strong>Kenya</strong> 2010, Articles 19, 20, 21, 22, 23, 27, 28, 36, and 259.<br />
Kerosi Ondieki v Minister of State for Defence and another Petition No.181 of 2010...................................................................68<br />
Jurisdiction - jurisdiction of the High Court to deal with the issue of violation of constitutional rights-claim that the Truth,<br />
Justice and Reconciliation Commission (TJRC) could deal with the issue- where the Act establishing the Commission had<br />
come into effect after the plaintiffs had filed their suits- whether the court had the mandate to deal with the plaintiffs’<br />
claims - Constitution of <strong>Kenya</strong> Section 84 .<br />
Harun Thungu Wakaba and 20 others v The Attorney General [2010] Misc.Appl.No. 1411(OS) of 2004 (consolidated)..........62<br />
Rendition - right of every citizen to be subjected to due process of the law-application to stop transfer of a suspect from<br />
the <strong>Kenya</strong>n jurisdiction-whether the court could order the Minister for Internal Security not to surrender the applicant/<br />
suspect to Uganda or any other jurisdiction- Constitution of <strong>Kenya</strong>, 2010 Articles 19, 20, 21, 22, 23, 27, 28, 36, and 259.<br />
Mohamed Aktar Kana v Attorney General Constitutional Application No. 544 of 2010...............................................................71<br />
Rights of an accused person – bail – application for bail pending trial– accused person charged with murder-right of<br />
an arrested person to be released on bond or bail-a new Constitution having been passed under which all offences were<br />
bailable-where one was only entitled to be released on reasonable conditions- principals to be considered by the court<br />
before granting an applicant bail– where the deceased was a son to the accused -whether the applicant was entitled to<br />
bail pending trial- Constitution of <strong>Kenya</strong>, 2010 Article 49(1) (h).<br />
Republic v Taiko Kitende Muinya Criminal Case No.65 of 2010.....................................................................................................67<br />
Rights of an accused person – bail – application for bail pending trial– accused person charged with murder-right of<br />
an arrested person to be released on bond or bail-a new Constitution having been passed under which all offences were<br />
bailable-where one was only entitled to be released on reasonable conditions- principles to be considered by the court<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
9
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
before granting an applicant bail-whether the applicants were entitled to bail pending trial- Constitution of <strong>Kenya</strong>, 2010<br />
Article 49(1) (h)<br />
Republic v Danson Mgunya and Another Criminal Case No 26 of 2008.........................................................................................73<br />
Supremacy of the Constitution - application of international law-where International Treaties, and Conventions ratified<br />
by <strong>Kenya</strong> was listed a source of <strong>Kenya</strong>n law in the new Constitution- Article 11 of the International Covenant on Civil and<br />
Political Rights prohibiting imprisonment merely on the ground of inability to fulfill a contractual obligation-where the<br />
applicant was a debtor who had been committed to civil jail-whether the Constitution was above the Civil Procedure Act<br />
which made the provisions for recovery of money and execution by way of committal of the judgment debtor to civil jail<br />
as one of the means of enforcing a judgment-Constitution of <strong>Kenya</strong> 2010, Section 2(6) -Article 11 of the International<br />
Covenant on Civil and Political Rights.<br />
In Re the Matter of Zipporah Wambui Mathara [2010] eKLR Bankruptcy Cause No. 19 of 2010.............................................69<br />
Supremacy of the Constitution - where the offence of murder was non-bailable under section 123 of the Criminal<br />
Procedure Code -Article 49 of the Constitution 2010 providing all offences were bailable-whether Article 49 of the<br />
Constitution 2010 superseded section 123 of the Criminal Procedure Code- Constitution of <strong>Kenya</strong>, 2010 Article 49- Criminal<br />
Procedure Code (Cap 75), section 123<br />
Republic v Danson Mgunya and AnotherCriminal Case No 26 of 2008..........................................................................................73<br />
CUSTOMARY LAW – burial dispute – Keiyo customary law in regard to burial – claim that the deceased subjected himself to<br />
Keiyo customs –whether he was bound by the said customs –whether Keiyo customs was repugnant to justice and morality.<br />
Salina Soote Rotich v Caroline Cheptoo & 2 Others Civil Appeal No. 48 of 2010.........................................................................64<br />
ELECTION PETITION<br />
Declaration - application brought by the petitioner seeking to be declared the Member Of Parliament for Starehe<br />
Constituency – where the petitioner had earlier on filed an election petition that sought to nullify the election of the 1st<br />
respondent as a Member of Parliament – allegations that the parliamentary and presidential elections were flawed and<br />
tainted with illegality – whether the election was conducted in accordance with the law – whether the petitioner could be<br />
declared as the Member of Parliament for Starehe Constituency in place of the 1st respondent – Section 44(1)(a)Constitution<br />
of <strong>Kenya</strong>; Section 30(1) National Assembly and Presidential Elections Act; Rule 4(3) & (7) of the National Assembly and<br />
Presidential Elections(election Petition) Rules<br />
William Maina Kamanda V Margaret Wanjiru Kariuki & 2 Others Election Petition No 5 of 2008..........................................65<br />
Service – definition and purpose of service – where personal service was the best mode of service – whether personal<br />
service could have been inferred in the circumstances – whether the application was incompetent -National Assembly and<br />
Presidential Elections Act (Cap 7) Section 20(1) (a) (iv).<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others [2010] eKLR Election Petition No. 3 of 2008....................................58<br />
Service – service of process – application to strike out an election petition on the grounds that it had not been served on<br />
the 2nd respondent within twenty eight days after the publication of the results as required by law - affidavit of service<br />
of the process server silent on service upon the 2nd respondent – application opposed – claim that due diligence was<br />
exercised in the service of the election petition –whether the 2nd respondent was duly served with the election petition<br />
in accordance with the law – National Assembly and Presidential Elections Act (Cap 7) Section 20(1) (a) (iv) - National<br />
Assembly (Election Petition Rules) rule 14 (1).<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others [2010] eKLR Election Petition No. 3 of 2008....................................58<br />
ELECTION LAW<br />
Electoral documents – election result – manner in which results were recorded – Presiding Officer required to record<br />
the total number of votes cast in favour of each candidate and to sign the declaration set out in Form 16A certifying the<br />
results – where the said Form 16A had not been signed by the presiding officer or stamped by an Electoral Commission<br />
of <strong>Kenya</strong> (ECK) stamp and did not bear the names of the presiding officer – whether a Form 16A which was not signed by<br />
a presiding officer could constitute valid results which could be accepted for tallying by a Returning Officer - need for all<br />
the presiding officers to sign and stamp the Form 16As for the same to be considered valid – whether the petitioner had<br />
established to the required standard of proof that the 2nd respondent had accepted invalid results which he tallied and<br />
included in the final results as contained in Form 17A<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others Election Petition No. 3 of 2008..........................................................74<br />
Election petition – invalidation of elections – requirement that no election should be invalidated because of minor<br />
10 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
irregularities which do not substantially affect the outcome of the election as reflected in the official result – where it was<br />
clear from the evidence that the electoral malpractices had affected the credibility of the results that were announced<br />
and published by the 2nd and 3rd respondents – duty of the 2nd and 3rd respondent to ensure that the election process<br />
was transparent free and fair - whether the election process was in accordance with the law.<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others Election Petition No. 3 of 2008..........................................................74<br />
Election petition – parliamentary election – petition seeking to nullify and declare void the election of the first respondent<br />
as Member of Parliament for Kirinyaga Central Constituency – irregularities in elections – petitioner citing irregularities in<br />
the conduct of elections – whether the first respondent was validly elected – National Assembly and Presidential Elections<br />
Act(Cap 7)<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others Election Petition No. 3 of 2008..........................................................74<br />
EVIDENCE – documentary evidence – evidence that all the original election materials required to be produced before court<br />
by the Returning Officer under rule 19 of the National Assembly Elections (Election Petition) Rules were all destroyed in a<br />
fire that burnt down the offices of the 2nd and 3rd respondent – where Photostat copies of the original Form 16, 16As, 17,<br />
17As were obtained from the offices of the African Union – whether the Photostat copies which were adduced as secondary<br />
evidence were admissible as evidence of the content of the originals – Section 68(1) Evidence Act (Cap 80)<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others Election Petition No. 3 of 2008..........................................................74<br />
ESTOPPEL - equitable estoppel -estoppel by conduct-second respondent having submitted himself to court without filing<br />
any documents under protest-notice of instruction and appointment filed o behalf of the 2nd respondent-applicant having<br />
entered an unconditional appearance in proceedings in court-whether that waived any irregularities-where there was<br />
delay of 40 days in bringing the application-whether that estopped the 2nd respondent from challenging service.<br />
Dickson Daniel Karaba v John Ngata Kariuki & another [2010] eKLR Election Petition No. 3 of 2008....................................58<br />
INTERPRETATION OF STATUTES – interpretation of section 2 of the Magistrate’s Court Act - whether the provisions<br />
of the said section excluded customary burials from matters that the Magistrate’s Court had jurisdiction to hear and<br />
determine – Judicature Act (Cap 8) section 3(2) – Magistrate’s Court Act (Cap 10) sections 2,9.<br />
Salina Soote Rotich v Caroline Cheptoo & 2 Others Civil Appeal No. 48 of 2010.........................................................................64<br />
JUDICIAL REVIEW - certiorari-application to quash a gazette notice on referendum results-application on the ground<br />
they were not published according to the law-prayer to prohibit the promulgation of the proposed Constitution of <strong>Kenya</strong>whether<br />
the court could grant the orders sought.<br />
Mary Ariviza v Interim Independent Electoral Commission of <strong>Kenya</strong> & another [2010] eKLR Misc.<br />
Civil Application No. 273 of 2010........................................................................................................................................................66<br />
JURISDICTION<br />
Jurisdiction of the High Court - matters arising from the Constitutional review process –original jurisdiction on matters<br />
arising out of the Constitutional Review process vested on the Interim Independent Constitutional Dispute Resolution<br />
Court (IICDRC) –whether the special jurisdiction of the High Court to determine matters of judicial review conferred<br />
under the <strong>Law</strong> Reform Act was limited- where the applicant’s complaint related to the management of the referendum<br />
process after the voting- where Section 46(1) of the Constitution of <strong>Kenya</strong> Review Act gave jurisdiction to the IICDRC to<br />
issue appropriate remedies- whether the matter fell within the conduct of the referendum and could be brought by way<br />
of petition before the IICDRC -whether the application was within the mandate of the Court–Constitution of <strong>Kenya</strong> Review<br />
Act Sections 43(1), 46(1), 60 A (1).<br />
Mary Ariviza v Interim Independent Electoral Commission of <strong>Kenya</strong> & another [2010] eKLR Misc.<br />
Civil Application No. 273 of 2010........................................................................................................................................................66<br />
Jurisdiction of the High Court - where the High Court enjoyed unrestricted and unlimited powers in all matters of<br />
substantive law, concerning the general administration of justice in order to fulfill, properly and effectively its role as a<br />
court of law- duty of the High Court to ensure strict compliance with the relevant provisions of the law- where the National<br />
Assembly and Presidential Elections Act and the rules there under did not provide for striking out an election petitionwhether<br />
the court had the jurisdiction to strike out the petition-Constitution of <strong>Kenya</strong>, section 60(1).<br />
Dickson Daniel Karaba v John Ngata Gitahi & 2 others [2010] eKLR Election Petition No. 3 of 2008......................................58<br />
STATUTES – interpretation of statutes-where the rules governing election petitions made no provisions for personal service<br />
or non service- section 22 (22(a) (Cap 7) providing that petitions would only be summarily rejected where there was no<br />
sufficient grounds to grant reliefs sought-“Sufficient grounds” not to be curtailed by placing a limited interpretation upon<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
11
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
its meaning-duty of the court to give an intelligent interpretation to the legislation, and not to construe it, in a manner<br />
which would imply to it, a meaning not expressly provided for -whether the repetitive or continuous use of a particular<br />
procedure gave the court authority to strike out a petition when the law did not provide for that procedure- National<br />
Assembly and Presidential Elections Act (Cap 7) Section 22(a).<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others [2010] eKLR Election Petition No. 3 of 2008....................................58<br />
STATUTE LAW<br />
Interpretation of Statutes -piracy- Section 69 of the Penal Code having been repealed by the Merchant Shipping Actdefinition<br />
of piracy in the repealed Section –where there was no specific definition given of the offence of piracy jure gentium<br />
and therefore the elements of the offence were not given- whether “piracy” under section 371 of the new Act was the same<br />
as “piracy jure gentium” in the repealed Act- Merchant Shipping Act section 371- Penal Code (Cap 63), 69 (1) and 69 (3)<br />
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc. Application No 434 of 2009.........76<br />
Interpretation of Statutes –court’s jurisdiction under the Penal Code- where section 5 of the Penal Code was the defining<br />
provision with regard to jurisdiction of the <strong>Kenya</strong>n Courts in so far as the Code was concerned- jurisdiction of the Courts<br />
of <strong>Kenya</strong> extending to every place within <strong>Kenya</strong>, including territorial waters- jurisdiction of the courts to try the charge<br />
of piracy on High Seas under section 69 (1) of the Penal Code-whether section 69 (1) of the Penal Code was inconsistent<br />
with the Section 5 of the Penal Code to the extent that it included “the High Seas -whether section 5 overrides Section 69<br />
(1) to the extent of the inconsistency- Penal Code (Cap 63), Section 5, 69 (1) and 69 (3)<br />
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc. Application No 434 of 2009.........76<br />
Repealing of Statutes - transitional clauses where a statute is repealed- Merchant Shipping Act repealing the Penal Code<br />
-where there was no clause providing that the repealed Section would not affect the power of the court to convict and<br />
sentence the accused persons in respect of the pending piracy cases and offences committed prior to the commencement<br />
of the Merchant Shipping Act-whether the jurisdiction of the courts to try the pending piracy cases could be saved in<br />
absence of a transitional clause.<br />
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Misc Application No 434 of 2009..........76<br />
12 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE COURT (IICDRC)<br />
CIVIL PRACTICE AND PROCEDURE<br />
Parties to a suit - representative suit-locus standi– need for one to have a legal interest either vested or contingent in<br />
the subject matter before the Court- whether the petitioner had the locus standi to file the petition on behalf of prisoners.<br />
Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission (2010 eKLR)<br />
Constitutional Petition No. 1 of 2010..................................................................................................................................................79<br />
Rules of procedure - interpretation of the rules- duty of the Court to interpret the Court Rules in a way that promotes<br />
the principle of substantial justice without undue regard to technicalities-where the issues raised were substantial and<br />
a decision on the issues raised was imperative-whether the court could strike out the petition for not complying with the<br />
Civil Procedure Rules and the (Practice and Procedure) Rules of the IICDRC.<br />
Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission (2010 eKLR)<br />
Constitutional Petition No. 1 of 2010..................................................................................................................................................79<br />
CONSTITUTIONAL LAW<br />
Constitution making - Constitution review process – review organs in the process-importance of a Referendum in<br />
the process-where the court had not been mentioned as a review organ in the process- whether the court had a role in<br />
determining what constituted the provisions of the Proposed Constitution of <strong>Kenya</strong> –whether the court could interfere<br />
with the referendum process-Constitution of <strong>Kenya</strong> Review Act (Act No.9 of 2008) section 5-Constitution of <strong>Kenya</strong> section<br />
47A (2)(a).<br />
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others Constitutional Petition No. 5 of 2010...81<br />
Constitution making process - referendum-interpretation of the various provisions of the law on holding of referendumpublication<br />
of results- when results of a referendum become final – whether the law imposed a duty on the 1st respondent<br />
as the statutory body with the duty to publish final results of a referendum to ensure that no challenge to the results had<br />
been filed before publishing the same - Constitution of <strong>Kenya</strong> Review Act Section 43(2) 47 A (6) and (7) -Referendum<br />
Regulations, regulation 36(1)(c).<br />
Mary Ariviza and another v Interim Independent Electoral Commission of <strong>Kenya</strong> & 3 others [2010] eKLR Constitutional Petition<br />
No. 7 of 2010..........................................................................................................................................................................................88<br />
Constitution review process - registration of voters-whether citizens resident outside the geographical jurisdiction of<br />
<strong>Kenya</strong> were entitled to register and participate at the referendum while abroad or overseas-whether the law envisioned<br />
registration and polling only at legally prescribed stations within domestic constituencies-whether the prevailing trends<br />
were in favour to voting for those in diaspora-whether a referendum o the constitution was just as good as any other<br />
election or whether it was a special activity calling for different rules.<br />
Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR Constitutional Petition No. 3 of 2010...........83<br />
Constitution review process - where the process had a self propelled mechanisms for execution of the process- duty of<br />
the President Under Section 47A (6) and (7) to promulgate the Constitution within 14 days after publication of the final<br />
results of the referendum in the <strong>Kenya</strong> Gazette or the Constitution became law automatically on the expiration of 14 dayswhere<br />
the provision of the supreme law was binding on the court –whether the court could grant the remedy sought in the<br />
face of the coming into force of the said constitutional provision - Constitution of <strong>Kenya</strong> Review Act Section 47A (6) and (7).<br />
Mary Ariviza and another v Interim Independent Electoral Commission of <strong>Kenya</strong> & 3 others [2010] eKLR Constitutional Petition<br />
No. 7 of 2010..........................................................................................................................................................................................88<br />
Constitutional <strong>Law</strong> - constitutional review process-constitutional review organs-Committee of Experts (2nd respondent)-<br />
whether the 2nd respondent properly executed its mandate when identifying contentious issues-whether the 2nd respondent<br />
had any discretion in determining what was contentious-whether the 2nd respondent was bound by the recommendations<br />
of the Parliamentary Select Committee (PSC)-whether the content of the draft constitution was to be limited to what<br />
existed in prior draft constitutions.<br />
Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR Constitutional Petition No. 3 of 2010...........83<br />
Constitutional making - Constitution review process-review organs- organs of review created to specifically check each<br />
other- Committee of Experts (CoE)- CoE granted the power to define “contentious issues”- whether the CoE had exercised<br />
its power and mandate in accordance with the law- Constitution of <strong>Kenya</strong> Review Act , Section 5.<br />
Bishop Joseph Kimani and 2 Others v the Attorney General and two othersConstitutional Petition No. 4 of 2010.................96<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
<strong>13</strong>
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Digest of Cases Featured<br />
Constitutional review process - referendum-participation in a free and fair referendum-referendum question-whether<br />
the mandate to craft the referendum question resided with the Interim Independent Electoral Commission (IIEC)-whether<br />
there was a specific manner in which the referendum question was to be framed-whether the character of the referendum<br />
question for presentation at the referendum was such as to compromise the Petitioners’ sovereign right to participate in<br />
the writing of the Constitution-whether it was in the public interest for the court to interfere with the process and postpone<br />
the referendum.<br />
Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR Constitutional Petition No. 3 of 2010...........83<br />
Fundamental rights and freedoms - violation of-constitution review process-petitioners alleging that their rights to<br />
replace the constitution were violated by the acts of the various state officers and public bodies for whom the 1st respondent<br />
was legally answerable for-whether the proposed constitution was properly published as required by law-whether the<br />
publication of the two draft constitutions and denouncing of one version two weeks later infringed on the petitioners’<br />
sovereign right to participate in the writing of the constitution-whether the alleged alterations in the proposed constitution<br />
by the 1st respondent were so fundamental as to alter the character of the draft document by the 2nd respondent-whether<br />
such editorial errors were of such a magnitude as to compromise the sovereign right of the petitioners’ to take participate<br />
in the constitution making process.<br />
Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR Constitutional Petition No. 3 of 2010...........83<br />
Referendum - challenges to the referendum results-application to quash a gazette notice on referendum resultsapplication<br />
on the ground they were not published according to the law-prayer to prohibit the promulgation of the proposed<br />
Constitution of <strong>Kenya</strong>- argument that the process of promulgating the ratified Constitution ought to have been stopped<br />
as per section 43(3) of the CKRA until such petition was finally disposed off according to Section 44 of the CKRA-whether<br />
the gazzettement of the referendum results by the 1st respondent on had been improper and illegal- whether the court<br />
could grant the orders sought- Constitution of <strong>Kenya</strong> Review Act (CKRA) sections 43(3) and 44.<br />
Mary Ariviza and another v Interim Independent Electoral Commission of <strong>Kenya</strong> & 3 others [2010] eKLR Constitutional Petition<br />
No. 7 of 2010..........................................................................................................................................................................................88<br />
Referendum - challenges to the referendum results-when such challenges are to be brought-service of petition on<br />
respondent-time within which to effect service- security for costs-time within which to deposit the security for costseffect<br />
of a petition where security for costs is not paid- whether the petition had to be dismissed- Interim Independent<br />
Constitutional Dispute Resolution Court (Practice and Procedure) Rules 2010, rule 9- Constitution of <strong>Kenya</strong> Review Act<br />
Sections 44(3) & (4).<br />
Mary Ariviza and another v Interim Independent Electoral Commission of <strong>Kenya</strong> & 3 others [2010] eKLRConstitutional Petition<br />
No. 7 of 2010..........................................................................................................................................................................................88<br />
Referendum - disputes arising out of the referendum process-need for the disputes to be brought at earliest available<br />
opportunity because of their potential impact-dispute brought less than a month to the referendum-where the dispute<br />
could have been brought earlier-whether instituting the petition at that stage was an abuse of the court process.<br />
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others Constitutional Petition No. 5 of 2010...81<br />
Supremacy of the constitution - referendum- constituent power of the people - power to make, enact and amend a<br />
Constitution - people’s right to vote and determine whether or not the proposals contained in the Proposed Constitution<br />
of <strong>Kenya</strong> (PCK) would become the supreme law –whether any other body had the power to alter or attempt to make any<br />
changes as to the contents of the PCK except the people themselves in the exercise of their constituent power to vote in a<br />
referendum.<br />
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others ConstitutionalPetition No. 5 of 2010....81<br />
14<br />
<strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Editor’s Note<br />
NOTE FROM THE EDITOR<br />
Michael M. Murungi<br />
Editor/C.E.O.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
15
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Judiciary Ict Strategic Policy And Plan<br />
INSIDE KENYA’S FIRST VIRTUAL COURT SESSION<br />
By Michael M. Murungi<br />
Court of Appeal Judge Mr. Justice M. Ole Keiwua (seated front) flanked by Ms. Jean Muthoni, a court clerk, presides over <strong>Kenya</strong>’s first<br />
virtual court session at the Nairobi <strong>Law</strong> Courts on October 11, 2010. On the screen in front of him are lawyers making submissions from<br />
a video-conference terminal at the Mombasa <strong>Law</strong> Courts, about 400 Kms away from the Judge’s terminal.<br />
On 11th October, 2010, Justice M. Ole Keiwua, a Judge of the Court of Appeal of <strong>Kenya</strong>, presided over the hearing of an<br />
application for extension of time within which to file a notice of appeal in the case of Yasmin Abdulkarim t/a Y.A. Ali<br />
Advocates v. Southern Credit Banking Corporation Ltd, Mombasa Civil Application NAI 161 of 2010. Such applications<br />
are routinely heard and disposed by the Court of Appeal. However, the special thing about this particular session was<br />
that the presiding judge was sitting at the Nairobi <strong>Law</strong> Courts while the lawyers for both parties made their submissions<br />
from the Mombasa <strong>Law</strong> Courts, over 400 kilometres away, in what may very well have been East Africa’s first videoconferenced<br />
court session.<br />
This virtual court session was the first in a series of three other sessions that were the run-up to the launch by Chief<br />
Justice J.E. Gicheru of the Judiciary’s ICT Policy and Strategic Plan 2011-20<strong>13</strong> at a public ceremony on October 14, 2010.<br />
The policy and plan outlines the Judiciary’s policy and strategic approach in incorporating information technology<br />
as an aid in the administration of justice. The virtual court was a showcase of some of the ICT initiatives and projects<br />
anticipated in the Strategic Plan. During the launch ceremony at the Chief Justice’s Garden outside the Nairobi <strong>Law</strong><br />
Courts, invited guests were treated to a virtual court session beamed live through large flat-screen monitors installed<br />
at Garden.<br />
Video-conferencing technology<br />
The Virtual Court is a concept that seeks to build on the positive use of video conferencing technology by firstly<br />
interlinking court stations and ultimately linking court stations with prisons and other locations in order to dispense<br />
with the need to produce an accused person in court; or for parties, advocates, witnesses and court staff to appear<br />
personally before a judicial officer; and for the Judiciary to save administrative costs and time.<br />
The virtual court features a high capacity point-to-point fibre optic link between the Mombasa <strong>Law</strong> Courts and the<br />
Nairobi <strong>Law</strong> Courts. On both terminals there is a videoconference room with acoustically enhanced room design and<br />
state-of-the-art video-conferencing technology - video cameras, large screen video display/monitors, a sound-system<br />
and information processing equipment.<br />
By prior arrangement, all persons involved in a case that has been designated for hearing through videoconference<br />
will have been informed and their consent obtained. On the time when the hearing or proceeding is scheduled, a<br />
communication link is established between the two terminals so that a live video of the presiding Judge/Magistrate<br />
is displayed to the accused person, litigant or lawyer at one terminal (the remote terminal) and in turn a live video<br />
of the accused person, litigant or lawyer and the other persons present will be displayed at the Judge’s/Magistrate’s<br />
terminal (court terminal).<br />
For the purpose of the pilot phase of the virtual court concept, all the parties and their advocates and witnesses will<br />
be at the remote terminal and the court terminal will only have the judge or magistrate, a court clerk a designated<br />
16<br />
<strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Judiciary Ict Strategic Policy And Plan<br />
technical co-ordinator and any other court official as the judge or magistrate may direct. The pilot phase will not feature<br />
the examination of witnesses, evidence or exhibits by advocates or parties located at different terminals.<br />
Prior informed consent and legal uncertainties<br />
However, due to the novelty of this concept and being cautious that there may be certain legal uncertainties surrounding<br />
the use of the video-conferencing in the hearing court cases, parties or advocates whose cases have been selected for<br />
hearing using the virtual court concept are asked to give their consent to the arrangement. Once the consent has been<br />
obtained, the parties indicate that they understand and agree to abide by The Guidelines for Virtual Court Sessions, a<br />
set of administrative guidelines which the Judiciary has developed to guide all persons participating in the virtual court.<br />
Some of the legal uncertainties became hilariously evident during the first virtual court session.<br />
Does the term ‘appearance in person’ include a virtual appearance<br />
The rules that govern the procedure in civil and criminal proceedings in the courts of <strong>Kenya</strong> are the Civil Procedure<br />
Act and Rules, the Appellate Jurisdiction Act, the Court of Appeal Rules and the Criminal Procedure Act. Invariably,<br />
the Acts and rules use the terms ‘in person or by advocates’ in their references to how a litigant or an accused person<br />
may appear in court. The uncertainty here would be whether a virtual appearance may be considered to be within the<br />
meaning an appearance ‘in person’.<br />
What is the geographical location of the virtual court?<br />
The physical location of a court is a matter that is hard woven into the formal documents and procedural niceties of<br />
the courts of <strong>Kenya</strong>. References to where the court is ‘sitting’ and where a court order was issued carry important<br />
legal-procedural implications. Generally, cases are heard and determined at the physical location where the registry in<br />
which they were filed is located. With the first virtual court, the Judge was sitting in Nairobi as he presided over a case<br />
filed in the Mombasa Court Registry. When he had finished hearing the application and was in the course of concluding<br />
his ruling, Judge Ole Keiwua wondered aloud whether the court order was to be considered as having been issued in<br />
Nairobi or in Mombasa. The advocates at the Mombasa terminal looked momentarily at each other and then looked<br />
back at the Judge with suppressed laughter obviously as amused by the conundrum as they were unprepared for it.<br />
Examination of witness demeanour and exhibits<br />
The (impersonal?) nature of virtual interactions may raise the question whether a judicial officer would be in a position<br />
to qualitatively observe the demeanour of witnesses (an important aspect in determining the credibility of a witness)<br />
or to effectively inspect a piece of evidentiary material such as a physical exhibit. This was demonstrated when noticing<br />
that one of the lawyers appearing on the screen was having trouble finding a provision of law in his copy of the Court<br />
of Appeal Rules, Judge Ole Keiwua said, “Regrettably in the circumstances I cant hand over my copy to you” to the<br />
accompaniment of further laughter.<br />
Do the recently enacted provisions on electronic transactions eliminate some of these uncertainties?<br />
Section 83G of the <strong>Kenya</strong> Information & Communications Act, 1998 provides for the recognition of electronic records.<br />
It states that where any law provides that information or other matter shall be in writing, then, notwithstanding<br />
anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter<br />
is rendered or made available in an electronic form; and accessible so as to be usable for a subsequent reference.<br />
While it would strain the interpretation of this section to argue that it expressly gives legal recognition to virtual court<br />
appearances, the argument that the Act in itself does not necessarily outlaw virtual court sessions would be equally<br />
if not more compelling. Perhaps proponents of the latter argument would find support from no lesser a law than the<br />
newly promulgated Constitution of <strong>Kenya</strong> 2010.<br />
The Constitution of <strong>Kenya</strong> 2010<br />
Part 1 of the Constitution establishes the Judiciary and prescribes the manner in which judicial authority shall be<br />
exercised. In section 159, it states that Judicial authority is derived from the people and vests in, and shall be exercised<br />
by, the courts and tribunals established by or under this Constitution. One of the principles set out in the Constitution<br />
as one which shall guide the courts in the exercise of judicial authority sounds like the opening line of a submission<br />
by a lawyer who is opposing an argument by his counterpart challenging the legality of proceedings conducted in a<br />
virtual court: ‘Justice shall be administered without undue regard to procedural technicalities’. Further, in section 232,<br />
the values and principles of public service are stated as including: ‘efficient, effective and economic use of resources …<br />
responsive, prompt, effective, impartial and equitable provision of services’. The savings in time and physical and financial<br />
resources and the improvements in the provision of judicial services that would result from the effective application<br />
of the virtual court concept would answer directly to the high ideals of public service provided in the Constitution.<br />
Once the virtual court concept has been successfully piloted, the Judiciary plans to roll it out along with other initiatives<br />
outlined in its ICT Policy & Strategic Plan 2011-20<strong>13</strong>.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
17
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Editorial Department<br />
THE 29 TH ANNUAL MEETING OF THE ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS<br />
(ARJD) - LAS VEGAS NEVADA, USA<br />
Ms. Monica Achode, Snr. <strong>Law</strong> Reporter,<br />
Team Leader, Editorial Department.<br />
By Monica Achode Editorial Department<br />
The Council was represented by the following officers this year:<br />
1. Mr. Michael M. Murungi, CEO/Editor, National Council for <strong>Law</strong> Reporting<br />
2. Ms. Esther N. Onchana, Senior Assistant Editor, NCLR<br />
3. Ms. Monica M. Achode, Senior <strong>Law</strong> Reporter, NCLR<br />
The National Council for <strong>Law</strong> Reporting is a member<br />
of the International Association of Reporters of<br />
Judicial Decisions, the ARJD. The ARJD’s purpose is to<br />
improve the accuracy and efficiency of the reporting<br />
of judicial decisions. The Association also serves as<br />
a forum for communication and cooperation among<br />
official Reporters and others in the legal publishing<br />
profession. The ARJD holds its annual meeting each<br />
August. The meeting offers educational programs for<br />
members and others involved in reporting judicial<br />
decisions, as well as business sessions limited to<br />
Association members.<br />
The Council has been attending the ARJD meetings<br />
since 2006 and this year it was held in Las Vegas,<br />
Nevada in USA from the 4th to the 9th of August<br />
2010. Apart from the conference, social events were<br />
scheduled, providing an informal setting for attendees<br />
to interact and discuss issues of common interest.<br />
The conference commenced with peer networking and welcoming remarks from Louise Meagher, the ARJD President.<br />
The congregation was also welcomed to Las Vegas by the Mayor of Las Vegas, the Honorable Oscar Goodman. This was<br />
followed by a narration of the early history of the ARJD by Thomas M. Merrit, a retired reporter of decisions of the<br />
Massachusetts Supreme Judicial Court.<br />
During the round table discussions the twin issues addressed were; membership participation, specifically current<br />
membership, expanding and increasing membership participation, and communication, specifically the current tools<br />
utilized and the role of social networks such as facebook, twitter, blogs and others.<br />
The Chief Justice of the Nevada Supreme Court, Hon. Justice Ron D. Parraguirre addressed the conference on the Nevada<br />
Court System. He outlined the court hierarchy and system explaining that in Nevada it consisted of the Supreme Court,<br />
District Court, Municipal court, and Justices’ Court and that credit and collection cases were determined by the District<br />
Court and the Justices’ Court. He further explained that the District Court had original jurisdiction on all civil and criminal<br />
cases, that the Justices’ Court had jurisdiction over actions arising on contract where the amount in controversy did<br />
not exceed $7,500 exclusive of interest and that Small Claims was a division of the Justices’ Court and had jurisdiction<br />
over money claims in which the amount in controversy did not exceed $3,500. Moreover, the defendant had to reside,<br />
be employed or do business in the township in which the action was filed.<br />
Sara Beckstrand, the Vice President – human resources of Thomson Reuters made a presentation about managing<br />
employees of different generations. She defined the four generations as the Silents (born before the 60’s), the Baby<br />
Boomers (born in the 60’s), the Gen X (born in the 70’s) and the Millenials (born after the 80’s) explaining the trends<br />
in each generation and how they interacted with each other. The day was capped by a tour of Lake Mead and a dinner<br />
cruise hosted by the Thompson Reuters.<br />
Amongst the keynote presentations was that made by the Editor/CEO of the National Council for <strong>Law</strong> Reporting,<br />
Mr. Michael Murungi on the <strong>Kenya</strong>n experience of <strong>Law</strong> Reporting and moving beyond traditional law reporting. He<br />
expounded on NCLR’s expanded mandate of law revision as well as the other products offered by the NCLR such as<br />
the causelist, <strong>Kenya</strong> Gazette and the <strong>Bench</strong> <strong>Bulletin</strong>. He also expounded on the use of ICT in the operations of the<br />
office and pointed out that the NCLR has now adopted the use of Alfresco, a leading open source enterprise content<br />
management system.<br />
After Mr. Murungi’s presentation, the ARJD asked him to share with it more information about the Alfresco document<br />
18 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Editorial Department<br />
Mr. M. Murungi, the Editor & CEO, NCLR, making his presentation titled:<br />
‘Moving Beyond Traditional <strong>Law</strong> Reporting: the Experience of the National<br />
Council for <strong>Law</strong> Reporting ‘ during the conference<br />
management system in use by the NCLR so that<br />
they could share it with the members. NCLR<br />
also offered the ARJD assistance in re-designing<br />
and updating the ARJD website. At this time it<br />
was also proposed that the 20<strong>13</strong> ARJD meeting<br />
be hosted in <strong>Kenya</strong>.<br />
Other presenters at the conference included<br />
Professor Nancy B. Rapoport, a professor of<br />
law at the Gordon Silver University who made<br />
a presentation on, lawyer’s image in modern<br />
society.<br />
A key point of discussion in the conference was<br />
the move by the Supreme Court of Arkansas to<br />
exclusive online reporting. The discussion on<br />
Arkansa Conversion to Online Opinions was<br />
led by Ralph W. Preston, a reporter of decisions<br />
of the Supreme Court of Ohio and Susan P.<br />
Williams of the Supreme Court and Court of Appeals of Arkansas. The Supreme Court of Arkansas with effect from<br />
July 1, 2009 established the electronic version of the appellate decisions posted on the Arkansas judiciary website as<br />
the official reports of those decisions, effectively eliminating the need for the printed reports. The discussion focused<br />
around the challenges they have faced up to that point as well as some recommendations for any jurisdiction wishing<br />
to undertake the same.<br />
In a small ceremony Louise Meagher, the outgoing President of the ARJD was given a farewell speech and a vote of<br />
thanks. Mr. Murungi then presented the incoming president of the ARJD, Mr. Ralph W. Preston with a ceremonial Maasai<br />
rungu given to the community leaders as a representation of his taking on the new office as leader of the ARJD<br />
meeting be hosted in <strong>Kenya</strong>.<br />
Other presenters at the conference included Professor Nancy B. Rapoport, a professor of law at the Gordon Silver<br />
University who made a presentation on, lawyer’s image in modern society.<br />
A key point of discussion in the conference was the move by the Supreme Court of Arkansas to exclusive online reporting.<br />
The discussion on Arkansa Conversion to Online Opinions was led by Ralph W. Preston, a reporter of decisions of the<br />
Supreme Court of Ohio and Susan P. Williams of the Supreme Court and Court of Appeals of Arkansas. The Supreme<br />
Court of Arkansas with effect from July 1, 2009 established the electronic version of the appellate decisions posted on<br />
the Arkansas judiciary website as the official reports of those decisions, effectively eliminating the need for the printed<br />
reports. The discussion focused around the challenges they have faced up to that point as well as some recommendations<br />
for any jurisdiction wishing to undertake the same.<br />
In a small ceremony Louise Meagher, the outgoing President of the ARJD was given a farewell speech and a vote of thanks.<br />
Mr. Murungi then presented the incoming<br />
president of the ARJD, Mr. Ralph W. Preston<br />
with a ceremonial Maasai rungu given to the<br />
community leaders as a representation of his<br />
taking on the new office as leader of the ARJD.<br />
Mr. Murungi presenting. Mr. Ralph W. Preston , the incoming ARJD<br />
President with a complimentary Maasai leadership baton<br />
The concluding session revolved around plans<br />
for the preparation of the 2011, 2012 and 20<strong>13</strong><br />
sites for the ARJD meeting. The meeting ended<br />
on a high note with a majority of the members<br />
voting in favour of holding the 20<strong>13</strong> meeting<br />
in <strong>Kenya</strong>, hosted by the NCLR. It was proposed<br />
that the meeting in <strong>Kenya</strong> be organized as<br />
an international symposium on official law<br />
reporting and that donors and partners be<br />
approached to supplement the cost of the<br />
conference.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
19
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Editorial Department<br />
In that regard, a special committee was established to:<br />
- Inquire into the projected costs of the conference;<br />
- To prepare a tentantive programme with a schedule of proposed speakers and events;<br />
- To prepare proposals for funding and forward them to donors and partners;<br />
- To approach the vendors who have traditionally partnered with the ARJD with a view to obtaining<br />
their support for the 20<strong>13</strong> meeting;<br />
- To make a report on all the above in the next meeting of the ARJD.<br />
The Committee is comprised of:<br />
- Mr Michael Murungi, Editor, <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong> (Chairperson)<br />
- Mr. C. Clifford Allen, Reporter of Decisions Massachusetts Supreme Judicial Court<br />
- Mr. Roger Bilodeau, Q.C., Registrar, Supreme Court of Canada<br />
- Ms. Leah Walker, Technical Assistant, US Supreme Court <strong>Law</strong> Reporting Office<br />
The members of NCLR who attended the 2010 ARJD meeting in Las Vegas took away many important lessons which<br />
will be applied. The most salient of these lessons were:<br />
1. The Procedure for Online Reporting from the Supreme Court of Arkansas<br />
The Supreme Court of Arkansas became the first state in the United States to publish and distribute the official report<br />
of its appellate decisions electronically. When the Court launched the new format for its official reports this summer<br />
of 2009, the searchable database maintained by the Reporter of Decisions included all opinions issued after February<br />
14, 2009, which was the closing date for the final volumes of the Arkansas <strong>Reports</strong> and the Arkansas Appellate <strong>Reports</strong><br />
(375 Ark./104 Ark. App.). Arkansas Supreme Court Rule 5-2 was been rewritten to reflect these changes. Further, the<br />
Court’s change to Rule 5-2 abandoned the distinction between published and unpublished opinions and made every<br />
Supreme Court and Court of Appeals opinion issued after July 1, 2009, precedent.<br />
All opinions issued after February 14, 2009, are in the new electronic database of official reports. These opinions must<br />
be cited using the new citation form: case name, year of decision, abbreviated court name, and sequential appellate<br />
decision number. Parallel cites to a regional reporter, if available, are required. Parallel cites to other unofficial sources,<br />
such as electronic databases, are allowed but not required. Pinpoint citations are strongly encouraged in general. The<br />
amended rule also prescribes how to do a pinpoint cite to an electronic report (preliminary or final) of an Arkansas<br />
case: cite the page of the electronic file where the matter cited appears. The electronic file is secure, with the pages<br />
locked in place so that they are the same no matter what computer they are viewed on.<br />
The reasons given by the Court for adopting this new technology was that, printing books had become an increasingly<br />
expensive endeavor with the cost of subscriptions increasing, while the number of subscribers declined. In addition,<br />
there was a significant lag between the time an appellate decision was issued and its publication in the books. More<br />
and more lawyers, litigants, and citizens were getting copies of the appellate decisions from the Court’s website on the<br />
same day that they were issued and for which there was no cost.<br />
The Council faces similar challenges in the publication of the <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong> Volumes. It therefore plans to model<br />
the Nevada Court’s System adopting, with necessary modification, the general principles and guidelines articulated in<br />
the per curiam opinion cited as IN RE: ARKANSAS SUPREME COURT AND COURT OF APPEALS RULE 5-2 (delivered<br />
on March 28, 2009), particularly:<br />
• To have the online reports authorized as the official law reports by statute or practice note from the Chief<br />
Justice. This will reflect the use of the electronic publication as official law reports. These electronic files shall<br />
be authenticated, secured, and maintained by the NCLR on its website.<br />
• A uniform citation format of decisions included in the <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong> to be cited by referring to the volume<br />
and page where the decision can be found and the year of the decision. It is hoped that pinpoint citations to<br />
specific pages will be adopted as well.<br />
2.E-filing in the Nevada Supreme Court<br />
The group on the second day of the meeting had the privilege of touring the Nevada Supreme Court and learning about<br />
its use of IT in Court proceedings. The Nevada Supreme Court is the highest court in the Nevada judicial system. With<br />
the trial courts of the nine judicial districts (covering seventeen counties), justices’ courts and municipal courts, the<br />
Nevada judicial system constitutes the third branch of government. The Supreme Court is the state’s highest court and<br />
its primary responsibility is to review and rule on appeals from District Court cases. It is funded almost equally from<br />
the state general fund and from administrative assessments and has seven justices.<br />
The Nevada civil/criminal justice systems comprises of independent courts using different case management systems<br />
that interacted daily with multiple justice agencies using a myriad of disparate computer systems which are supported<br />
and/or influenced by various information technology departments. The Supreme Court of Nevada has a web-based<br />
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<strong>Bench</strong> <strong>Bulletin</strong><br />
Editorial Department<br />
electronic filing (e-filing) system available 24/7 for the filing of criminal and civil cases. The system allows attorneys<br />
and district court clerks to file documents; pay for civil filings; view and print electronic versions of documents and<br />
docket sheets; and receive electronic notifications when other parties or participants file to your cases.<br />
Their main challenge was that while the civil/criminal justice systems had the physical computing networks in<br />
place, it lacked the standardized policies and procedures needed for data sharing. Consequently, four critical areas<br />
were adversely affected by the State’s civil/criminal justice system inability to effectively share civil/criminal justice<br />
information electronically. These areas were:<br />
a) delays in the civil/criminal justice process,<br />
b) electronic business, such as public access to reliable and up-to-date case information,<br />
c) conducting business on-line, such as e-filing and e-payments, and<br />
d) public trust and confidence.<br />
The NCLR is partnering with the judiciary in the formulation of an ICT Policy and Strategy that includes the automation<br />
of judicial processes. In that regard, the NCLR will be sharing with the Judiciary the technical knowledge and insight<br />
on Nevada Supreme Court’s e-filing system, as embodied in the following documents:<br />
- Attorney and Settlement Judge Training Manual<br />
- District Court Clerk Training Material (Available on http://nevadajudiciary.us/index.php/courtefiling<br />
The next ARJD meeting will be held in Boston, Massachusetts on August 3 – 8, 2011. The details will be provided at a<br />
later date.<br />
The NCLR team taking a moment with the Chief<br />
Justice of the Nevada Supreme Court, Hon. Justice<br />
Ron D. Parraguirre<br />
The NCLR’s M. Murungi chats with Chief Justice<br />
Ron D. Parraguirre and Ms. Janette Bloom,<br />
Reporter of Decisions, Nevada Supreme Court.<br />
‘The ARJD 2010 conference attendants inside the<br />
Nevada Supreme Court during their tour of the<br />
Nevada Regional Justice Centre.’<br />
Chief Justice, Hon. Justice Ron D. Parraguirre<br />
during his presentation.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
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<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Strategic Planning, Quality Assurance and Performance Evaluation Department<br />
THE NATIONAL COUNCIL FOR LAW REPORTING STRATEGIC PLAN 2009-2012<br />
By Esther Nyaiyaki Onchana,<br />
Snr Assistant Editor<br />
Ms. Esther Nyaiyaki, Snr. Assistant Editor,<br />
Team Leader of Strategy, Quality Assurance & Performance Department.<br />
On July 7, 2010 the Board for the National Council<br />
for <strong>Law</strong> reporting chaired by His Lordship The<br />
Hon. Mr. J.E Gicheru, EGH, the Chief Justice resolved<br />
to adopt the Council’ Strategic Plan 2009-2012.<br />
This important step concluded the Council’s<br />
comprehensive strategic planning process that<br />
involved broad consultations with stakeholders,<br />
departmental briefings and consideration of the<br />
working draft at a full-plenary of the Council’s staff.<br />
The process resulted in a Strategic Plan for the<br />
Council that clearly states its Mission, Vision and<br />
strategic priorities required to fulfil them. It is a<br />
guide for the Council’s future and one that reflects<br />
the Council’s commitment to improve access to<br />
justice by reliably providing access to public legal<br />
information. The goals set forth in the Plan were<br />
carefully crafted and some are high-reaching. Some<br />
call upon new attitudes and visions and can be<br />
realized within a short amount of time. Others will require a significant infusion of funds and are large in scope but<br />
given the considerable commitment of stakeholders, the Council’s Board and staff, these goals are attainable.<br />
In a foreword note to the Plan, His Lordship The Hon. Mr. J.E Gicheru, EGH, the Chief Justice urges “the Council’s<br />
stakeholders particularly the legal, judicial and law enforcement institutions whose roles and expectations are clearly<br />
articulated in the Plan, to strengthen their linkages and inter-agency co-operation with the Council’s Secretariat in<br />
order to achieve not only the Council’s Strategic Plan but also the fulfilment of the stakeholders’ expectations.”<br />
Summary of the Plan<br />
The Council draws its mandate from section 3 of the National Council for <strong>Law</strong> Reporting Act and Legal Notice N0. 29 of<br />
2009, to publish the <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong> and related publications; to revise, consolidate and publish the <strong>Law</strong>s of <strong>Kenya</strong><br />
and to perform such other functions as may be conferred by statute.<br />
The National Council for <strong>Law</strong> Reporting Strategic Plan 2009-2012 outlines the Council’s Vision, Mission, Core Values<br />
and Strategic Objectives to be:<br />
Vision<br />
“To be the premier resource institution in Africa providing reliable and accessible legal information to<br />
the public”.<br />
Mission<br />
“To provide access to public legal information in order to aid the administration of and access to justice,<br />
the knowledge and practice of law and the development of jurisprudence”.<br />
Corporate slogan<br />
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong>: Transforming Legal Information into Public Knowledge.<br />
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Strategic Planning, Quality Assurance and Performance Evaluation Department<br />
Official LogoFigure 1 Official Corporate Seal Figure 2<br />
Core values<br />
The Council’s core values include:<br />
• Professionalism: To apply the highest levels of knowledge, skills, competencies and ethical values in the<br />
various disciplines practiced in executing our mandate.<br />
• Quality and Excellence in service: To provide goods and services that meets the highest standards of<br />
quality and to provide friendly, prompt and excellent customer<br />
service.<br />
• Accessibility: To enhance access to public legal information.<br />
• Reliability: To provide updated and relevant public legal information.<br />
• Integrity: To conduct our operations professionally, independently, ethically, honestly and fairly.<br />
• Innovation and teamwork: To harness and apply creativity, teamwork and continuous improvement in<br />
providing access to public legal information<br />
• Transparency and accountability: To openly report on our activities and account for our use of public<br />
resources.<br />
Principles of Service<br />
The Council observes the following values and principles in the provision of its services:<br />
• High standards of professional ethics<br />
• Efficient, effective and economic use of resources<br />
• Responsive, prompt, effective, impartial and equitable provision of services<br />
• Consideration of the public interest in the process of policy making<br />
• Accountability for administrative acts<br />
• Transparency and provision to the public of timely, reliable and accurate information<br />
• Fair competition and merit as the basis of appointments and promotions<br />
• Representation of <strong>Kenya</strong>’s diverse communities; and<br />
• Affording adequate and equal opportunities for appointment, training and advancement at all levels<br />
without discrimination in gender, origin, creed, colour or political opinion and physical ability.<br />
Strategic Objectives<br />
1. To timeously collect, analyse and provide affordable access to accurate and relevant case law in order to aid the<br />
administration of and access to justice, the knowledge and practice of the law and the development of jurisprudence.<br />
2 . To update, revise and publish the <strong>Law</strong>s of <strong>Kenya</strong> and to provide Judicial Officers, the legal community and the<br />
public with easy affordable, efficient and timely access to the <strong>Law</strong>s.<br />
3. To promote and undertake continuing legal research on frontier issues in jurisprudence, to adopt contemporary<br />
and appropriate standards and best practices in official law reporting and to provide legal research support to judicial<br />
officers.<br />
4. To conceptualize and apply creative, innovative, appropriate, reliable, and integrated technological solutions that<br />
enable us to efficiently and effectively fulfil our vision and mission.<br />
5. To establish the Council as a benchmark institution in the prudent planning, management, allocation and accounting<br />
for financial and capital resources as well as the management of knowledge.<br />
6. To create an organizational framework that ensures the recruitment, selection, management, remuneration,<br />
development and rewarding of our human resources and an organizational culture that optimizes productivity and<br />
efficiency, encourages innovativeness and creativity and fosters positive inter-personal relations and social responsibility.<br />
7. To develop and implement marketing goals and strategies that foster public knowledge and information about the<br />
Council’s goods and services establishing the Council’s brands as market leaders and providing customer care services<br />
that are timely, courteous, and responsive and exceed the needs of our customers.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
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Strategic Planning, Quality Assurance and Performance Evaluation Department<br />
8. To acquire adequate, spacious, ergonomic and appropriate premises for the Council’s Secretariat.<br />
9. To secure the financial strength and sustainability of the Council by conceptualizing and implementing innovative<br />
and sustainable business models for deploying the Council’s goods and services.<br />
10. To develop and administer the Strategic Plan for the Council, to continuously monitor, measure and evaluate<br />
the implementation of the Plan, and to establish a reference point for departmental activities for quality assurance,<br />
knowledge management and continuous improvement.<br />
Activities planned for the Editorial, <strong>Law</strong>s of <strong>Kenya</strong> and Research and Development Departments<br />
Drawing from the larger organizational plan, each department formulated its own mission, strategies and a plan of<br />
activities for 2009-2012. Apart from its flagship publication of the <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong>, the Editorial Department plans<br />
to introduce new publications such as the KLR Monthly. The KLR Monthly will consist of a summary of all the Court<br />
of Appeal and select High Court decisions delivered in a particular month. The summary will incorporates brief head<br />
notes, a summary of essential facts, points arising for determination and the holdings by the court. The publication<br />
aims to address the need for Judicial Officers and legal practitioners to access for contextually relevant and abstracted<br />
content on judicial precedents published on a monthly or even weekly basis.<br />
The <strong>Law</strong>s of <strong>Kenya</strong> Department intends to establish fully fledged department to be able to sufficiently undertake the<br />
comprehensive and continuous revision and updating of the <strong>Law</strong>s of <strong>Kenya</strong>. In line with its past pioneering spirit,<br />
the department intends to consolidate the experience it has amassed in the recent years to formulate and document<br />
guidelines and manuals of law revision in <strong>Kenya</strong>.<br />
The Research Development department has proven vital in tracking and reporting judicial opinions containing<br />
pronouncements pertinent to legal and administrative reform. The department proposes to share this knowledge<br />
capital among judicial officers, the Legal Education Program.<br />
As part of the Council’s strategic planning process, the Council formulated a new staff structure involving eight<br />
departments:<br />
To read the Strategic Plan in its entirety please go to www.kenyalaw.org<br />
24<br />
<strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
<strong>Law</strong>s of <strong>Kenya</strong> Department<br />
THE CONSTITUTION OF KENYA 2010; PATH TOWARDS THE IMPLEMENTATION OF THE<br />
SUPREME LAW<br />
Mrs. Ann Asugah, Assistant Editor and<br />
Team Leader, <strong>Law</strong>s of <strong>Kenya</strong> Department.<br />
By Ann Asugah, <strong>Law</strong>s of <strong>Kenya</strong> Department<br />
Over two months ago, <strong>Kenya</strong>ns overwhelmingly voted in a<br />
referendum to have a new Constitution in place. On 27th<br />
August 2010, the President led the nation in promulgating the<br />
new Constitution at Uhuru Park Grounds. The expectations<br />
of the people are high and the implementation process of the<br />
new Constitution has started in earnest. The Constitution<br />
became effective on the day of its promulgation. However,<br />
the implementation process is spread over a period of over<br />
5 years and certain provisions only take effect after the 2012<br />
general elections.<br />
The coming into force of the Constitution 2010 heralds a new<br />
beginning for <strong>Kenya</strong> with regard to matters concerning the<br />
administration of justice especially with the introduction of<br />
the Supreme Court, entrenchment of alternative methods of<br />
dispute resolution etc. Several Commissions and institutions<br />
have to be put in place to oversee the implementation<br />
process. Below is a highlight of the path being taken towards the implementation process to realize the gains envisaged<br />
for the whole nation in the new Constitution.<br />
1.Commission for the Implementation of the Constitution Act, 2010<br />
Section 5 of the Sixth Schedule establishes the Commission for the Implementation of the Constitution. According<br />
to section 25 of the Sixth Schedule, the Commission ought to be in place within three months (ninety days) after<br />
the coming into force of the Constitution. On 29th October 2010, the government published the Commission for the<br />
Implementation of the Constitution Act, No. 9 of 2010. The Act seeks to provide for the functions, powers, qualifications<br />
of and appointment procedure for members of the Commission and other matters pertinent to the day to day workings<br />
of the Commission. The functions of the Commission are to monitor, oversee, and facilitate the development of legislation<br />
and overall implementation of the new Constitution. The Commission shall stand dissolved 5 years after its establishment<br />
or at the full implementation of the Constitution as determined by Parliament.<br />
2.Vetting of Judges and Magistrates Bill, 2010<br />
The vetting of judges and magistrates is provided for under the Sixth Schedule, section 23(1). The section requires<br />
Parliament to enact legislation establishing mechanisms and procedures for vetting the suitability of all judges and<br />
magistrates who were in office on the effective date within one year after the Constitution came into force.<br />
The Vetting of Judges and Magistrates Bill, 2010 was published on the 17th of September 2010 and proposes the<br />
establishment of an independent tribunal to vet all judges and magistrates within a period of one year but such period<br />
may be extended by a further period of one year by Parliament. The tribunal’s proceedings are to be conducted in<br />
camera unless the affected judges or magistrates request for a public hearing.<br />
Among the things to be considered by the tribunal include the track record of the concerned judicial officer, including<br />
prior pronouncements, competence, diligence, any pending or concluded cases against the concerned judicial officer<br />
and any recommendations for prosecution by the Attorney General or <strong>Kenya</strong> Anti- Corruption Commission.<br />
Once identified and recommended for appointment the judges will have to be approved by Parliament before being<br />
appointed by the President in consultation with the Prime Minister.<br />
In the event that the tribunal finds a judge or a magistrate unfit to hold office, he or she shall be required to proceed<br />
on leave immediately and the tribunal shall inform them in writing on the final determination including the reasons<br />
for the decision. According to the Bill, judges who are aggrieved by the decision of the tribunal can have recourse by<br />
applying to a review panel within 10 days of the date of determination.<br />
3.The Judicial Service Bill, 2010<br />
Article 171 of the Constitution establishes the Judicial Service Commission with the mandate of; facilitating the<br />
independence and accountability of the Judiciary and promoting the efficient, effective and transparent administration<br />
of justice.<br />
The Judicial Service Bill 2010 published on 24th September 2010 seeks to ensure that the Judicial Service Commission<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
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is the organ of management of judicial services and, in that behalf, shall uphold, sustain and facilitate a Judiciary that<br />
is independent, impartial and subject only to the provisions of the Constitution and the law.<br />
The Bill proposes to establish mechanisms and structures for the provision of judicial services and administration of<br />
the Judiciary; provide for the structure and appointment of the members of the Judicial Service Commission, to make<br />
provision for the operations of the Judiciary Fund which is established by Article 173 of the Constitution; provide for<br />
the procedure for appointment, discipline and removal of judges, other judicial officers and staff and to provide for<br />
National Council on Administration of Justice.<br />
UPCOMING LEGISLATION<br />
The Fifth Schedule of the Constitution provides a list of legislation that Parliament must enact within stated time frames.<br />
For instance, within 1 year, Parliament ought to have enacted legislation relating to citizenship, elections and electoral<br />
disputes, laws on Independent Electoral and Boundaries Commission and legislation on political parties. Others include<br />
legislation touching on the judiciary, public finance, speaker of county assembly not to mention legislation to guide the<br />
operationalization of newly reconstituted bodies such as the <strong>Kenya</strong> National Human Rights and Equality Commission<br />
and the Ethics and Anti-Corruption Commission.<br />
RECENT ENACTMENTS<br />
1.The Prevention of Organized Crimes Act, 2010<br />
Effectively dealing with organized crime has for a long time been hampered owing to inadequacy of legislative<br />
framework to tackle such crimes. The peculiar elements of these crimes made it difficult to be comprehensively dealt<br />
with under the Penal Code. Some of the organized crime threats include drug trafficking, tax evasion syndicates, cyber<br />
crime and counterfeiting. The Act provides for the prevention and punishment of organized crime and the recovery of<br />
proceeds of organized criminal group activities or criminal group funds.<br />
Dealing with suspects of organized crime will become easier thanks to the passing and subsequent signing into law<br />
the Prevention of Organized Crimes Bill. The Act came in to force on the 23rd of September 2010 and provides for stiff<br />
penalties for offenders found guilty of organized crimes. An offender under the Act may be jailed for 15 years or a fine<br />
of Ksh. 5 Million or to both. The Act moves <strong>Kenya</strong> closer towards effectively prosecuting the rising cases of syndicated<br />
crime and criminalizes administering or taking of oaths purporting to bind a person to belong to an organized criminal<br />
group.<br />
2.The Commissions of Inquiry (Amendment) Act, 2010<br />
Section 7 of the Commissions of Inquiry Act (Chapter 102 of the <strong>Law</strong>s of <strong>Kenya</strong>) has recently been amended on the<br />
passing of the Commissions of Inquiry (Amendment) Bill, 2009 to require a Commissioner to report the results of an<br />
inquiry to the National Assembly. In the recent past, reports of such inquires have only been submitted to the president.<br />
In a large number of cases, the results of such inquiries have remained unknown to the public despite the fact that<br />
inquiries are constituted to interrogate matters that are of a public nature and which directly affect the public. The<br />
move is aimed at ensure transparency and accountability in the functioning of the inquiry system.<br />
3.The Alcoholic Drinks Control Act, 2010<br />
The enactment of the controversial Alcoholic Drinks Control Act has changed the licensing regime relating to alcoholic<br />
drinks.<br />
The Act establishes the Alcoholic Drinks Control Fund from which is to be drawn capital and recurrent expenditure<br />
which is to be used research, documentation and dissemination of information on alcoholic drinks, and promoting<br />
national cessation, rehabilitation programs and aiding the operations of the District Committees. The Act prohibits the<br />
manufacture or production, sale, importation or exportation of any alcoholic drink without a licence.<br />
Section 8 of the Act establishes an Alcoholic Drinks Regulation Committee in every district to issue licenses under the<br />
Act. The committee will receive applications for licenses and within 21 days, give notice of the applications to allow<br />
for any objections. The committee is to gazette any grant of a licence under the Act.<br />
When the new law comes into force, the Chang’aa Prohibition Act (Cap. 70) and the Liquor Licensing Act (Cap. 121) will<br />
stand repealed. The repeal of the former Act means that the production and consumption of Chang’aa will now be legal.<br />
4.The Counter Trafficking in Persons Act no. 8 of 2010<br />
The passage of the Counter Trafficking in Persons Act is major step in combating the trafficking in persons in <strong>Kenya</strong>.<br />
Earlier in the year, <strong>Kenya</strong>ns were treated to sordid tales of women and young girls being lured to Saudi Arabia allegedly<br />
to be offered jobs and many have been seeking help to return to <strong>Kenya</strong>.<br />
26<br />
<strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Legislative Update<br />
Ms. Petronella Mukaindo, Assistant <strong>Law</strong><br />
Reporter, <strong>Law</strong>s of <strong>Kenya</strong><br />
The Counter Trafficking in Persons Act seeks to domesticate the United<br />
Nations Convention Against Transnational Organized Crime particularly its<br />
Protocol to prevent, suppress and punish trafficking in persons, especially<br />
women and children. The Act stipulates stiff penalties for persons who<br />
promote trafficking of persons; minimum sentences of 20 years and a fine of<br />
not less than Twenty Million shillings. The Act establishes a committee known<br />
as the Counter Trafficking in Persons Advisory Committee with representation<br />
from the ministries of immigration, foreign affairs, gender and children,<br />
labour, Attorney General’s office and others. The function of the Advisory<br />
Committee shall be to advise the Minister on inter-agency activities aimed at<br />
combating trafficking and the implementation of preventive, protective and<br />
rehabilitative programmes for trafficked persons. The Act was published on<br />
24th September 2010 and commences 90 days after publication or on a date to<br />
be gazette by the Minister. The Minister had not gazette the commencement<br />
of the Act at the time of going to press of this article.<br />
SUMMARY OF SELECTED NEW LEGISLATION BETWEEN THE MONTHS OF JULY TO NOVEMBER, 2010<br />
By Ms. Petronella Mukaindo, Assistant <strong>Law</strong> Reporter<br />
DATE OF<br />
PUBLICATION<br />
IN KENYA<br />
GAZETTE<br />
2nd July, 2010<br />
KENYA GAZETTE<br />
SUPPLEMENT<br />
NUMBER<br />
Supplement<br />
No. 41<br />
NAME OF LEGISLATION<br />
The Offices of Minister Act, 2010<br />
(No. 3 of 2010)<br />
REMARKS<br />
This Act was enacted prior to the promulgation of<br />
the Constitution and it seeks to limit the number of<br />
Ministers to not more than twenty four (inclusive of<br />
Prime Minister and the two Deputy Prime Ministers),<br />
and not less than fifteen. Under the Act, a person<br />
cannot be appointed Minister unless such person is<br />
a member of Parliament and is a holder of at least a<br />
university degree or its equivalent. These provisions<br />
are inconsistent with the Article 152 of the new<br />
Constitution which provides that a cabinet Secretary<br />
(equivalent of Minister) shall not be a Member<br />
of Parliament. The Constitution also provides for<br />
appointment of ‘not fewer than fourteen and not more<br />
than twenty-two Cabinet Secretaries.’<br />
Supplement<br />
No. 43<br />
The National Hospital Insurance<br />
Fund (Standard and Special<br />
Contributions) (Amendment)<br />
Regulations, 2010 (Legal Notice<br />
107/2010).<br />
The controversial NHIF rules sought to amend<br />
paragraph 3 of regulation 3 of the National Hospital<br />
Insurance Fund (Standard and Special Contributions)<br />
Regulations, 2003 (Legal Notice No. 185/2003) by<br />
upgrading contribution rates.<br />
The National Hospital Insurance<br />
Fund(Voluntary Contributions)<br />
(Amendment) Regulations, 2010<br />
(Legal Notice 108/2010)<br />
These regulations amend regulation 5 of the National<br />
Hospital Insurance Fund (Voluntary Contributions)<br />
Regulations, 2003 (Legal Notice 108/2003) by setting<br />
the minimum rate of contribution at three hundred<br />
shillings per month.<br />
16th July, 2010<br />
Supplement 44<br />
Supplement 45<br />
The Tea (Amendment)(No.2) Bill,<br />
2010<br />
The Physical Planning<br />
(Procurement of Physical<br />
Planning Services) Regulations,<br />
2010 (Legal Notice 109/2010)<br />
This Bill seeks to amend the Tea Act, (Chapter 343 of<br />
the <strong>Law</strong>s of <strong>Kenya</strong>) to introduce necessary reforms in<br />
the tea sub-sector. The Bill for instance seeks to repeal<br />
section 12A of the Act so as to allow for uprooting of<br />
tea without requirement for prior authority from the<br />
Tea Board.<br />
The Bill also seeks to expand the mandate of the Tea<br />
Board of <strong>Kenya</strong> to include all aspects of tea trade<br />
including import, export and local tea trade in addition<br />
to reducing the membership of the Board from the<br />
current sixteen members to eleven members.<br />
Made under section 49 (1) of the Physical Planning<br />
Act (Cap. 286), the regulations govern preparation of<br />
development plans by the Director of Physical Planning<br />
and the procurement of physical planning services.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
27
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Legislative Update<br />
Supp. 47<br />
The Government Financial<br />
Management (Water Towers<br />
Conservation Funds) Regulations,<br />
2010 (Legal Notice No. 115/2010)<br />
The Regulations establish a Water Towers Conservation<br />
Fund whose purpose it to provide funds for the<br />
restoration, conservation and sustainable management<br />
of the water towers in <strong>Kenya</strong>.<br />
The <strong>Kenya</strong> Information and<br />
Communications (Electronic<br />
Certification and Domain Name<br />
Administration) Regulations,<br />
2010<br />
The Regulations made under section 83R of the <strong>Kenya</strong><br />
Information and Communications Act (Cap. 411A) and<br />
brought about by legal notice 116 of 2010 provide<br />
for the granting of licenses to persons who wish to<br />
provide electronic certification services. They set out<br />
the responsibilities of certification service providers<br />
and the requirements to be met by such applicants.<br />
<strong>13</strong>th August,<br />
2010<br />
Supp. 49<br />
Retirement Benefits<br />
(Amendment) Bill, 2010<br />
The Bill seeks to amend the Retirement Benefits Act<br />
(No. 3 of 1997) by inserting a new section 35B so as<br />
to allow employees access to their full contributions<br />
upon leaving employment before the mandatory<br />
retirement age. On passing of this Bill, a member<br />
leaving employment after three years of membership<br />
will be entitled to a refund of his or her contribution<br />
and payment of up to fifty per cent of the employer’s<br />
contribution((together with investment incomes<br />
accrued thereon).<br />
Supp. 50<br />
The Bills of Exchange (Cheque<br />
Truncation) Regulations, 2010<br />
(Legal Notice 123/2010)<br />
Made under section 74C of the Bills of Exchange Act<br />
(Cap. 27), the regulations prescribe the particulars of<br />
electronic payment information and the particulars of<br />
image return documents. The rules also provide for the<br />
electronic payment information of cheques.<br />
Cheque truncation is a system of cheque clearing and<br />
settlement between banks based on electronic data or<br />
images or both electronic data and images, without the<br />
conventional physical exchange of instruments.<br />
The Central Bank of <strong>Kenya</strong><br />
(Currency Handling)<br />
Regulations, 2010 (Legal<br />
Notice 124/2010)<br />
These regulate the use of currency notes and coins and<br />
their images for publication or promotional purposes.<br />
The regulations also address the issue of licensing of<br />
cash in transit operators such as cash defacement<br />
devices and also the exchange of defaced notes.<br />
The regulations revoke the earlier 2008 Regulations<br />
(Legal Notice 148 of 2008).<br />
26th August,<br />
2010<br />
Supp. 52<br />
The Anti-Counterfeit<br />
Regulations, 2010<br />
(Legal Notice 126/2010)<br />
These regulations made under the Anti-Counterfeit Act<br />
(No. <strong>13</strong> of 2008) aid the operationalization of the Act.<br />
The rules among other things provide for the various<br />
forms to be used in making various applications for<br />
example in laying a complaint , applications to seize<br />
and detain counterfeit goods, inspection of suspect<br />
goods, etc.<br />
3rd September,<br />
2010<br />
Supp. 53<br />
The Truth, Justice and<br />
Reconciliation (Hearing<br />
Procedure) Rules, 2010<br />
Brought about vide legal notice <strong>13</strong>1 of 2010, these<br />
rules detail the procedure to be followed in hearing<br />
proceedings before the Truth Justice and Reconciliation<br />
Commission.<br />
Supp. 54<br />
The Persons with Disabilities<br />
(Amendment) Bill, 2010<br />
The Bill seeks to amend the Persons with Disabilities<br />
Act, 2003 (Act No. 14 of 2003) so as to accord<br />
recognition of persons with albinism as amongst the<br />
categories of persons identified as being disadvantaged<br />
under the Act. This category has not previously been<br />
recognized by law as disadvantaged hence not afforded<br />
rights that are entitled to the disabled.<br />
28 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Legislative Update<br />
17th September,<br />
2010<br />
Supp. 65<br />
The Civil Procedure Rules, 2010<br />
(Legal Notice 151/2010)<br />
Made under section 81 of the Civil Procedure Act,<br />
these Rules revoke the existing rules. They however<br />
come into force ninety (90) after their publication in<br />
the <strong>Kenya</strong> Gazette.<br />
Transitional provisions (Order 54 ) under the Rules<br />
provide that for all proceedings pending in court at the<br />
time of the coming into force of the rules, the provisions<br />
of these new rules shall thereafter apply, but without<br />
prejudice to the validity of anything previously done.<br />
However, where it is impracticable to pick up and<br />
apply these rules, then the old procedure continues to<br />
apply. The Chief Justice may also issue practice notes<br />
or directions as to the procedure to be adopted incase<br />
of doubt or any difficulty.<br />
24th September,<br />
2010<br />
Supp. 69<br />
The Counter-Trafficking in<br />
Persons Act, 2010<br />
The Counter-Trafficking in Persons Act (Act Number<br />
8 of 2010) is an important legislation in <strong>Kenya</strong>’s<br />
efforts to prevent, suppress and punish trafficking of<br />
persons especially women and children. The legislation<br />
provides stiff penalty for traffickers. A person who<br />
for instance trafficks another person for the purpose<br />
of exploitation or who finances, controls or abets<br />
the offence is liable to imprisonment of not less than<br />
thirty years or to a fine of not less than thirty million<br />
shillings or to both.<br />
The Act also provides guidelines on the trial of offenders<br />
and remedies for victims of trafficking in persons.<br />
Part IV of the Act establishes a Counter-Trafficking<br />
in Persons Advisory Committee responsible for<br />
advising on the efforts aimed at combating trafficking<br />
and implementation of preventive, protective and<br />
rehabilitative programmes for trafficked persons.<br />
Of importance is the Second Schedule to the Act which<br />
seeks to amend sections of the Penal Code (Cap. 63),<br />
the Sexual Offences Act (Act No. 3 of 2006) and the<br />
Children Act (Act No. 8 of 2001).<br />
The Act amends sections 260, 264 and 265 of the Penal<br />
Code (Cap. 63). A new section 266A of the Penal Code<br />
is also introduced in respect to this new legislation.<br />
The Act also seeks to repeal sections <strong>13</strong> and 18 of the<br />
Sexual Offences Act (Act No. 3 of 2006).<br />
*It is to be noted however that at the time of<br />
publication of this issue of the <strong>Bench</strong> <strong>Bulletin</strong>, the Act<br />
had not commenced.<br />
Supp. 70 The Court of Appeal Rules, 2010<br />
(Legal Notice 152/2010)<br />
Made under section 5 of the Appellate Jurisdiction<br />
Act (Cap. 9), these new Rules revoke and replace the<br />
existing rules. They take effect ninety (90) days after<br />
their publication in the <strong>Kenya</strong> Gazette.<br />
Just like the new Civil Procedure Rules, all proceedings<br />
pending in the Court at the time of the coming into<br />
force of the Rules shall thereafter be guided by the<br />
provisions of these Rules, but without prejudice to<br />
the validity of anything previously done. However,<br />
where it’s impracticable, then the earlier procedure<br />
applies. Part six on Transitional Provisions allow the<br />
judge or the Registrar to informally give directions as<br />
to the procedure to be adopted in case of any difficulty<br />
or doubt.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
29
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Legislative Update<br />
1st October,<br />
2010<br />
Supp. 72<br />
The Insurance (Amendment)<br />
Regulations, 2010 (Legal Notice<br />
154/2010)<br />
Through this amendment, the Minister for Finance<br />
amended the Fifteenth Schedule to the Insurance<br />
Regulations to extend the period to 31st December,<br />
2015 as the time the requirement that every insurer<br />
reinsures with the <strong>Kenya</strong> Reinsurance Corporation<br />
eighteen per cent of each of his reinsurance treaties in<br />
respect of general business placed in the international<br />
reinsurance market, shall cease to apply.<br />
Radiation Protection (Safety)<br />
Regulations, 2010 (Legal Notice<br />
160 of 2010)<br />
The Regulations made under section 18 of the<br />
Radiation Control Act (Chapter 243) of the <strong>Law</strong>s of<br />
<strong>Kenya</strong> provide for regulation on usage of radiation<br />
sources and also inspection of building facilities where<br />
radiation sources are used, stored or disposed. The<br />
Regulations also provide for various radiation signs.<br />
It is a requirement under the regulations that design<br />
plans of all buildings to be used for radiation-sources<br />
installation receive approval by the Board as being<br />
safe for the radiation protection of workers and the<br />
members of the public. These Regulations revoke the<br />
Structural Requirements and Inspection of Buildings<br />
Regulations of 1986.<br />
Supp. 73<br />
The Prevention of Organized<br />
Crimes Act-Commencement<br />
(Legal Notice 162/2010)<br />
The legal Notice sets 23rd of September, 2010 as the<br />
date on which the Prevention of Organized Crimes Act<br />
(No. 6 of 2010) comes into force.<br />
8th October,<br />
2010<br />
Supp. 74<br />
The Traffic (Amendment) Bill,<br />
2010<br />
If this Bill is enacted, persons will be able to exercise<br />
their freedom to individual taste and styles even in<br />
identification plates to their motor vehicles.<br />
The Bill seeks to amend Section 12 of the Traffic Act<br />
(Cap. 403) to enable the Registrar of Motor Vehicles<br />
to issue personalized identification plates to an<br />
applicant bearing the applicants name, initials or other<br />
prescribed features. An applicant for a personalized<br />
registration plate will however be required to pay an<br />
additional fee over and above that payable for ordinary<br />
registration.<br />
Supp. 75<br />
The Moi University College<br />
Order, 2010 (Legal Notice<br />
163/2010)<br />
The Order establishes the Karatina University College<br />
as a constituent college of Moi University and as the<br />
successor to Moi University Chepkoilel Campus.<br />
15th October,<br />
2010<br />
Supp. 76<br />
The Retirement Benefits<br />
(Occupational Retirement<br />
Benefits Schemes) (Amendment)<br />
Regulations, 2010 ( Legal Notice<br />
165/2010)<br />
The Amendment Regulations seem to echo the<br />
Retirement Benefits (Amendment) Bill which seeks<br />
to allow employees access to their full contributions<br />
upon leaving employment before the mandatory<br />
retirement age. These regulations replaced paragraph<br />
5 of regulation 19 by allowing a member of a defined<br />
benefit a retirement scheme who leaves employment<br />
after three years of membership but before attaining<br />
the specified early retirement age the option of<br />
payment of not more than fifty per cent of his accrued<br />
benefits, or to his own contribution and fifty per cent of<br />
his employer’s contribution and the investment income<br />
accrued in respect of those contributions.<br />
Supp. 76<br />
The Privileges and Immunities<br />
(The International Criminal<br />
Court) Order, 2010 (Legal Notice<br />
170/2010)<br />
To aid in the smooth flow of the operations of the<br />
International Criminal Court (ICC) process in <strong>Kenya</strong>,<br />
the Order afforded the ICC and its employees privileges<br />
and immunities as set out in Part I and Part III of the<br />
Fourth Schedule to the Privileges and Immunities Act<br />
30<br />
<strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Legislative Update<br />
(Cap. 179). The privileges include immunity from<br />
suits and legal processes, inviolability of premises<br />
occupied as offices and exemption from rates, taxes,<br />
or restrictions on goods directly imported by the ICC<br />
for its official use in <strong>Kenya</strong>.<br />
Supp. 77<br />
The Constitution of <strong>Kenya</strong>-<br />
Public Prosecutions-Delegation<br />
of Powers)<br />
Through legal Notice 172 of 2010, the Attorney General<br />
delegated all powers vested in him by Article 157(6)<br />
(a) of the Constitution (powers on institution and<br />
undertaking of criminal proceedings) to named State<br />
prosecutors.<br />
12th November,<br />
2010<br />
Supp. 79<br />
The International Crimes<br />
(Procedures for Obtaining<br />
Evidence) Rules, 2010 (Legal<br />
Notice (177/2010)<br />
Made under section 172 (b) of the International<br />
Crimes Act (No. 16 of 2008), the rules provide that<br />
the International Criminal Court may make a request<br />
to the Attorney-General for the taking of evidence or<br />
production of documents in relation to an investigation<br />
by the Prosecutor, or to any proceedings before the<br />
International Criminal Court. The Attorney General<br />
may then request the Chief Justice to designate a judge<br />
to take the evidence or preside over the production of<br />
any document if satisfied that provisions of section 77<br />
of the Act are met.<br />
The Rules further provide for the establishment<br />
of a court registry, the rules on issuance of witness<br />
summons and the taking of evidence.<br />
29th October,<br />
2010 & 12th<br />
November,<br />
2010<br />
Supp. 80<br />
The Commission for the<br />
Implementation of the<br />
Constitution Act<br />
The Act provides for the operations of the Commission<br />
already established under the new Constitution to<br />
steer the constitutional implementation process. The<br />
Commission is to be composed of a chairperson and<br />
eight other members who are to be appointed according<br />
to procedure laid down in the Act and the Constitution.<br />
The Commission is supposed to amongst other things<br />
monitor, facilitate, and oversee the development of<br />
legislation and administrative framework required to<br />
implement the new Constitution. It is also supposed<br />
to liaise with the Attorney-General and the <strong>Kenya</strong><br />
<strong>Law</strong> Reform Commission in preparing for tabling in<br />
Parliament relevant legislation.<br />
12th November,<br />
2010<br />
Supp. 81<br />
The HIV and AIDS Prevention<br />
and Control<br />
Act—Commencement (Legal<br />
Notice 180/2010)<br />
The HIV and AIDS Prevention and Control Act (No. 14<br />
of 2006) though passed in the year 2006 came into<br />
force on 30th March, 2009 except for sections 14, 18,<br />
22, 24 and 39 of the Act.<br />
Through this legal notice, these sections are set to<br />
commence on 1st December, 2010 save for section 39.<br />
Section 14 of the Act provides that a person can only<br />
perform an HIV test in respect of another person only<br />
with their informed consent or with the consent of<br />
the parent or guardian incase of a child or a person<br />
incapable of giving consent such as persons with<br />
disabilities.<br />
Section 18 and 22 provide for confidentiality and<br />
disclosure of HIV results. Results of an HIV test can<br />
only be released to the tested person, or in the case<br />
of a child, to a parent or legal guardian of such child.<br />
Under section 22, HIV results can only be released<br />
to another person only with the written consent of<br />
the tested person or if that person has died, with the<br />
written consent of that person’s partner, personal<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
31
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Legislative Update<br />
representative, administrator or executor or incases<br />
of a child, with the written consent of a parent or legal<br />
guardian of that child.<br />
Section 24 of the Act places an obligation on a person<br />
who knows to be HIV Positive to take all reasonable<br />
measures and precautions to prevent the transmission<br />
of HIV to others and to disclose their status before<br />
sharing needles or having sexual contact. Failure to<br />
observe the provisions attracts a maximum sentence<br />
of seven years and/or a fine of five hundred thousand<br />
shillings.<br />
Supp. 82<br />
The Weights and Measures<br />
(Amendment) Rules, 2010<br />
The Rules replaced the eleventh schedule to the<br />
Weights and Measures rules, which are rules under<br />
the Weights and Measures Act (Cap. 5<strong>13</strong>) by adjusting<br />
fees payable in respect of weights, measures and<br />
instruments examined, verified and stamped and also<br />
in respect to patterns of weighing and adjustment of<br />
weights and measures.<br />
32<br />
<strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
The <strong>Law</strong> Society Of <strong>Kenya</strong> Justice Cup, 2010<br />
FOOTBALL MATTERS; TALENTED KENYA LAW REPORTS TEAM DOES IT AGAIN!<br />
1<br />
2<br />
3<br />
4<br />
1 above: The National Council for <strong>Law</strong> Reporting’s football team (NCLR), 2 and 3 the<br />
Council’s team in action. 4 The NCLR football team in celebration after a win.<br />
The 2010 edition of the <strong>Law</strong> Society of <strong>Kenya</strong> Justice Cup which was held on the 17th of July at the Parklands Sports<br />
Club attracted a far bigger entry from various quarters than the previous similar events. A total of 36 teams took part in<br />
the tournament making it the most competitive of the tournaments so far held amongst members of the legal fraternity.<br />
The <strong>Kenya</strong> <strong>Law</strong> Report’s team, which was still riding high on the sterling performance it had exhibited at the inaugural<br />
Uwazi Football Tournament’ that had been held just two months earlier, having reached the semi-finals, went into the<br />
tournament in high spirits. The team, which was pooled alongside some of the perennial tournament’s favourites, felled<br />
many a team, including this year’s pre-tournament favourites Rachier & Amollo Adavocates. At the group stage, the<br />
team whipped Amolo Gachoka Advocates and Rachier & Amolo Advocates 1 goal to nil each before walloping Mboya &<br />
Wangondu Advocates 5 goals to 2. It however drew nil-nil with Kairu & McCourt Advocate, John Mburu & Co Advocates,<br />
Raffman Dhanji & Virdee Advocates as well as Committee of Experts. Special recognition goes to our lead lady striker<br />
Miss. Siphira Gatimu who was a thorn in flesh of many teams’ defences. Her scoring skills confounded even professional<br />
referees who officiated the matches.<br />
The team soldiered on, determined to lift the main cup until it was narrowly bundled out, albeit on inferior goal<br />
difference from other teams in the pool. It however emerged as the best losers in the group, earning itself a place in<br />
the plate category where it went up to the semi-finals.<br />
The <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong> team is already making preparations for an even more successful participation in the 2011<br />
edition of the tournament’.<br />
Cornelius W. Lupao,<br />
Senior <strong>Law</strong> Reporter and<br />
KLR Football Team Coach<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
33
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Feature Case<br />
Violation of Suspect’s Constitutional Right Not A Reason For Acquittal<br />
Julius Kamau Mbugua v Republic [2010] KLR (www.kenyalaw.org)<br />
Court of Appeal at Nairobi<br />
EM Githinji, PN Waki & A Visram JJ A<br />
October 8, 2010<br />
Reported by Michael Murungi<br />
In October, the Court of Appeal delivered a landmark judicial opinion on a question of great public importance over<br />
which there has been a divergence of interpretation in both the High Court and the Court of Appeal: whether a criminal<br />
suspect whose constitutional rights have been violated by a prolonged and unreasonable period of incarceration before<br />
his first arraignment in court would be entitled to an acquittal or a discharge regardless of the evidence against him.<br />
The repealed Constitution provided in section 72(3) that a person who is arrested upon reasonable suspicion of having<br />
committed a criminal offence was to be brought to court as soon as it was reasonably possible to do so. Where the<br />
accused person was not brought to court within 24 hrs or within 14 days if his arrest related to an offence punishable<br />
by death (such as murder and robbery with violence) he was to be brought to court within fourteen days. Where a<br />
suspect is detained for a longer period, the section placed the burden on the prosecution to prove that he had been so<br />
detained for a reasonable and justifiable purpose.<br />
In a fifty-page judgment in which it has analyzed previous <strong>Kenya</strong>n case law and made a comparative analysis of<br />
international jurisprudence, the Court of Appeal has now stated that the breach of a right to personal liberty of a<br />
suspect by police before trial is merely a breach of a civil right, though constitutional in nature, which is beyond the<br />
statutory duty of a criminal court and which was by section 72(6) of the repealed Constitution expressly compensatable<br />
by damages . The breach of the right to personal liberty is not trial-related and it did not render the subsequent trial<br />
a nullity. If police breached the right, the suspect had the right to apply to the High Court for a writ of habeas corpus<br />
to secure his release . In contrast, the right to a trial within a reasonable time guaranteed by section 77 (2) was trialrelated.<br />
It was not the duty of a trial court or an appellate court dealing with an appeal from a trial court to go beyond<br />
the scope of the criminal trial and adjudicate on the violations of the right to personal liberty which happened before<br />
the criminal court assumed jurisdiction over the accused. The right protected by section 72 (3) (b) was the right to<br />
be taken to court as soon as reasonably practicable and not a right not to be taken to court after unreasonable delay.<br />
Back in 2006 when in Albanus Mwasia Mutua vs. Republic [2006] KLR the Court of Appeal held that an unexplained<br />
violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of the<br />
evidence which may be adduced in support of the charge, that decision “had immediate ramifications on the criminal<br />
justice system” the Court has how noted. The majority of appellants invariably raised the issue of unlawful detention.<br />
Initially many appellants had some measure of success and many appeals were allowed and appellants released on the<br />
ground that their constitutional rights had been violated. “It was not before long that a sharp divergence of opinion<br />
arose on the interpretation of the law amongst the judges of the Court of Appeal and the High Court.”<br />
The case at hand involved one Julius Mbugua who was arrested on November 7 2005 on the suspicion that he had<br />
murdered his wife, Milcah Wamanji. The offence was said to have been committed in September 2005 in Gatunyu Village<br />
of Thika District. On February 8 2006, which was about 107 days after his arrest, he was arraigned before the High<br />
Court for trial. At a stage during his trial, Mbugua filed a petition under section 84 of the now repealed Constitution<br />
seeking a declaration that his detention for the period of 107 days and his subsequent arraignment on the criminal<br />
charge was a gross violation of his constitutional rights and that on that basis, he should be discharged and the state<br />
forever restrained from arresting or prosecuting him. Ultimately, the petition was dismissed on the main ground that<br />
it was a mere afterthought and it had been brought too late in the trial to afford the prosecution adequate time to rebut<br />
it. Mbugua had filed an appeal against the dismissal of his petition.<br />
From its consideration of Commonwealth and international jurisprudence on the right to be tried within a reasonable<br />
time, the Court of Appeal made several general observations. First, although the right to a trial within a reasonable<br />
time is part of international human rights law, the right is not absolute as it must be balanced with equally fundamental<br />
societal interest in trying suspected criminals. The general approach to the determination whether the right has been<br />
violated is a judicial determination whereby the court is obliged to consider all the relevant factors within the context of<br />
the whole proceedings. What amounts to unreasonable incarceration depends on the particular circumstances of each<br />
case and in the context of domestic legal system and the prevailing economic, social and cultural conditions. Although<br />
an applicant has the ultimate legal burden throughout to prove a violation, the evidentiary burden may shift depending<br />
on the circumstances of the case. The standard of proof of an unconstitutional delay is a high one and a relatively high<br />
threshold has to be crossed before the delay can be categorized as unreasonable. The violation of the right should be<br />
34 <strong>Issue</strong> <strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
Feature Case<br />
raised at the earliest possible stage in the proceedings to enable the court to give an effective remedy otherwise the right<br />
may be defeated by the doctrine of waiver where applicable. The right is to trial without undue delay. It is not a right<br />
not to be tried after undue delay (except in Scotland) and it is not designed to avoid trials on the merits. The remedy for<br />
the violation of the right varies from jurisdiction to jurisdiction but in most of the Commonwealth countries with Bill of<br />
Rights and a Constitution based on the Westminster model, courts can grant any relief they consider appropriate in the<br />
circumstances of the case. In some jurisdictions, where the applicant is already convicted the quashing of a conviction<br />
is not considered a normal remedy and the court could take into account the fact that the applicant has been proved<br />
guilty of a crime, the seriousness and prevalence of the crime and design an appropriate remedy without unleashing<br />
a dangerous criminal to the society.<br />
The Court further noted that even if unlawful pre-arraingment incarceration is shown to have a direct bearing on the<br />
subsequent trial, nevertheless, to acquit or discharge the accused person would be a disproportionate, inappropriate<br />
and draconian remedy seeing that the public security would be compromised. If by the time an accused person makes<br />
an application to the court the right has already been breached, the only appropriate remedy under Section 84(1) of<br />
the repealed Constituition was an order for compensation for such breach. The Court agreed with Justice A. Emukule<br />
in Republic v David Geoffrey Gitonga that a breach of section 72(3)(b) entitled the aggrieved person to monetary<br />
compensation only.<br />
Regarding the procedure applied in the hearing of Mbugua’s constitutional petition in the High Court, the Court of<br />
Appeal observed that it had been unprocedural for the Court to hear the petition firstly as part of the trial proceedings<br />
and secondly in the presence of assessors who had no power to give opinions in an application of that nature.<br />
The appeal was dismissed with no order as to costs.<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010 35
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
Jurisdiction of the Court of Appeal over appeals from election courts<br />
Mwakwere Chirau Ali v Ayub Juma Mwakesi and Another<br />
Civil Appeal No. 38 of 2010<br />
Bosire, O’kubasu & Visram, JJ.A.<br />
Court of Appeal at Nairobi<br />
June 4, 2010<br />
Reported by Njeri Githang’a<br />
Case History<br />
(Appeal from the judgment and certificate of the High Court of <strong>Kenya</strong> at Mombasa (Ibrahim Mohamed, J.) dated 5th<br />
February, 2010 in Election Petition No. 1 of 2008)<br />
Court structure - Court of Appeal-jurisdiction-appeals from the election court-jurisdiction<br />
of the Court of Appeal to hear appeals from an Election Court- preliminary objection to the<br />
effect that the Court had no jurisdiction to hear appeals arising from the High Court on the<br />
question of validity of an election of a Member of Parliament- establishment of the Court of<br />
Appeal by the Constitution under Section 64(1)- procedure to be adopted by the election<br />
court with regard to appeals-whether the National Assembly and Presidential Elections Act<br />
donated the power to hear appeals from an Election Court to the Court of Appeal- Constitution<br />
of <strong>Kenya</strong> Section 64(1)- National Assembly and Presidential Elections Act (Cap. 7) section 2<br />
and 23.<br />
The Hon. Mr. Justice<br />
A. Visram<br />
The appeal arose from the election court where the appellant’s election as a Member<br />
of Parliament had been declared to be null and void. Before the hearing of the appeal<br />
commenced, the respondent raised a preliminary objection to the effect that the Court<br />
had no jurisdiction to hear appeals arising from the High Court on the question of validity<br />
of an election of a Member of Parliament.<br />
In his submission, the respondent maintained that the decision of the High Court was final as there was no decree from<br />
the High Court but a certificate. He went on to argue that election petitions were proceedings of a special nature and<br />
that the right of appeal could only emanate from section 44 of the Constitution.<br />
On the other hand, in his submission the appellant stated that the right of appeal to the Court of Appeal was statutory<br />
and hence the appeal lay to the Court by virtue of the National Assembly and Presidential Elections Act (Cap. 7). It<br />
was further submitted that as that Act had never been declared to be ultra vires the Constitution then, it followed that<br />
the Court had jurisdiction to hear appeals from the Election Petition Courts.<br />
Held:<br />
1. Section 64(1) of the Constitution provided that “There shall be a Court<br />
of Appeal which shall be a superior court of record and which shall have<br />
such jurisdiction and powers in relation to appeals from the High Court as<br />
may be conferred on it by law.” In view of the foregoing, the right of appeal<br />
to the Court emanated from the Constitution.<br />
2. The relevant legislation governing the hearing and determination of<br />
election petitions was National Assembly and Presidential Elections Act<br />
(Cap. 7). Section 2 of that Act defined election Court as “…the High Court<br />
in the exercise of the jurisdiction conferred upon it by section 44(1) of the<br />
Constitution.”<br />
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<br />
to the Court of Appeal from any decision of an election court, whether the decision was interlocutory or final. It was<br />
immaterial whether the decision gave rise to an order, decree, or certificate. The law had donated the power to hear<br />
appeals from an election Court.<br />
Preliminary objection dismissed.<br />
36<br />
<strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
Jurisdiction of the Court of Appeal over appeals from the High Court in certain succession matters<br />
Francis Gachoki Murage v Juliana Wainoi Kinyua and another<br />
Civil Appeal (Application) No. <strong>13</strong>9 of 2009<br />
Omolo, D.K.S. Aganyanya & Visram, JJ.A<br />
Court of Appeal at Nyeri<br />
June 24, 2010<br />
Reported By Njeri Githang’a<br />
Case History<br />
(Being an Appeal from the Judgment of the High Court of <strong>Kenya</strong> at Embu (Khaminwa, J) Dated 16th January, 2008 in<br />
H.C. C. A. No. 46 of 2005)<br />
Civil Practice and Procedure - succession - second appeal against a decree passed by a<br />
subordinate court- jurisdiction of the court- whether the court had the jurisdiction to determine<br />
a second appeal on a succession matter- Constitution of <strong>Kenya</strong>, section 64 (1) - Appellate<br />
Jurisdiction Act (Cap 9), Section 3 (1).<br />
Statutes - interpretation of statutes - appeal in succession matters-section 50 of the <strong>Law</strong> of<br />
Succession Act vis a vis section 66 of the Civil Procedure Act –section 66 providing for appeals<br />
to the Court of Appeal-where section 50 provided that an appeal to the High Court from the<br />
orders or decrees of a magistrate’s court was final- whether section 66 of the Civil Procedure Act<br />
(Cap 21) could over-ride the specific provisions of section 50 (1) of Cap (160)-<strong>Law</strong> of Succession<br />
Act (Cap 160) section 50- Civil Procedure Act (Cap 21) section 66.<br />
The Hon. Mr. Justice<br />
D. K. S. Aganyanya<br />
The appellant sought to challenge a judgment dismissing an appeal which he had been<br />
lodged in the High Court from a decree passed by a Principal Magistrate Court. The dispute<br />
subject of the appeal fell within the <strong>Law</strong> of Succession Act, (Cap 160).<br />
The 2nd respondent lodged a notice of motion under Rule 80 of the Court of Appeal Rules praying for the appeal to be<br />
struck out on the ground that under section 50 (1) of the <strong>Law</strong> of Succession Act, no appeal could lie against the decree<br />
of High Court in its appellate jurisdiction in succession matters emanating from the lower court.<br />
The appellant opposed the motion to strike out the appeal on the ground that the High Court’s order was a decree and<br />
therefore the appellant was entitled to appeal against it under section 66 of the Civil Procedure Act.<br />
Held:<br />
1. The matter dealt with by the two courts below was determined under and in accordance with the <strong>Law</strong> of Succession<br />
Act. Section 50 (1) of that Act specifically provided, that an appeal to the High Court from the orders or decrees of a<br />
magistrate’s court was final.<br />
2. There was no valid legal basis for the contention that section 66 of the Civil Procedure Act was superior to and<br />
had to over-ride the <strong>Law</strong> of Succession Act. Under section 64 (1)<br />
of the Constitution, the Court of Appeal had such jurisdiction and<br />
powers in relation to appeals from the High Court as was conferred<br />
on it by law. Section 50 (1) of the <strong>Law</strong> of Succession Act specifically<br />
deprived the Court jurisdiction to hear appeals under that section.<br />
3. Section 3 (1) of the Appellate Jurisdiction Act, (Cap 9)<br />
provided that “The Court of Appeal shall have jurisdiction to hear<br />
and determine appeals from the High Court in cases in which an<br />
appeal lies to the Court of Appeal under any law.” Accordingly,<br />
no appeal lay to the Court under section 50 (1) of the <strong>Law</strong> of<br />
Succession Act and the section 66 of the Civil Procedure Act could<br />
not over-ride the specific provisions of section 50 (1) of the <strong>Law</strong><br />
of Succession Act.<br />
Application allowed, appeal struck out<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
37
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
Joseph Nathaniel Kipruto arap Ng’ok v Attorney General & another [2010] eKLR<br />
Civil Appeal No. 326 of 2005<br />
Court of Appeal at Nairobi<br />
S. E. O. Bosire, E. M. Githinji & J. G. Nyamu, JJA<br />
July 2, 2010<br />
Reported by Nelson Tunoi<br />
Case History<br />
(Appeal from the ruling and order of the High Court of <strong>Kenya</strong> at Nairobi (Ransley, J.) dated 26th September, 2005 in<br />
H.C.C.C. No. 565 of 2004)<br />
The Hon. Mr.<br />
Justice<br />
S. E. O. Bosire<br />
Attorney-General’s discretion to appear on behalf of a public body or officer<br />
Civil Practice and Procedure – setting aside - appeal against exercise of judicial discretion to<br />
set aside judgment entered in default of appearance and defence - principles governing the<br />
exercise of the court’s discretion to set aside a judgment obtained exparte - principles on which<br />
an appellate court can interfere with the exercise of judicial discretion by a Judge.<br />
Civil Practice and Procedure – legal representation – where the Attorney General had entered<br />
appearance and filed defence on behalf of the second respondent – duty of parties to a suit to<br />
file a record of change of advocates – whether the Attorney General had unquestionable right<br />
to represent the second respondent in civil proceedings - Government Proceedings Act (cap 40)<br />
section 34; Civil Procedure Rules (cap 21 Sub Leg) Orders III rule 9A, VI.<br />
The appellant lodged an appeal against the exercise of judicial discretion to set aside judgment<br />
entered ‘‘in default of appearance and defence’’ and also against the consequential order<br />
giving IPC leave to enter appearance and file a defence.<br />
The appellant had filed a suit against the respondents on the basis that the two had wrongfully<br />
and fraudulently terminated his contract of employment as Executive Chairman of Investment<br />
Promotion Centre (IPC), a State Corporation established under the Investment Promotion Centre (Repealed) Act (Cap<br />
485, <strong>Law</strong>s of <strong>Kenya</strong>). The AG was sued on behalf of the Permanent Secretary (PS), Ministry of Trade & Industry as he<br />
was the one who allegedly terminated the appellant’s services.<br />
The appellant thus filed a suit seeking a declaration that the PS’s purported termination of his services was unlawful,<br />
illegal and unprocedural and sought both special and general damages.<br />
Upon service of the summons to enter appearance together with plaint on IPC, the Managing Director of IPC requested<br />
the AG to represent it vide a letter dated June 30, 2004. Thereafter, the AG prepared a joint defence and counter-claim<br />
of himself as first respondent and also IPC (second respondent). These were verified by the affidavit of the Managing<br />
Director of IPC. The AG then entered appearance on behalf of the two respondents and also filed a joint defence and<br />
counter-claim on behalf of the 1st and 2nd respondents.<br />
The appellant subsequently filed an application for orders that the defence and counter-claim be struck out and for<br />
leave to enter judgment for non appearance and default in filling defence by the IPC. The application was mainly based<br />
on the ground that the memorandum of appearance and the defence filed by the AG on behalf of IPC was an abuse of<br />
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<br />
with power to sue and be sued in its name. The AG opposed the application contending, among other things, that IPC<br />
was legally and properly being represented by the AG.<br />
In allowing the application, the High Court (Ojwang J.) held that the AG had no legal standing to enter appearance<br />
and file a defence and counter-claim on behalf of IPC and that the appearance and defence and counter-claim were<br />
thus a nullity with the result that IPC must be taken as not having filed a defence and counter-claim. The High court<br />
thereupon struck out the appearance and the defence and counter-claim and gave leave for entry of judgment against<br />
IPC for non-appearance and for default of defence and as a result entered judgment against IPC.<br />
IPC then instructed a firm of advocates to enter appearance on behalf of it and the firm filed an application seeking to<br />
set aside the exparte judgment entered against IPC under the Civil Procedures Rules (cap 21 sub leg). The application<br />
was ultimately heard and allowed by the High Court (Ransley J.) in September, 2005 thereby precipitating the instant<br />
appeal.<br />
During the hearing of the appeal, counsel for the appellant contended that the judge lacked jurisdiction to set aside<br />
the judgment as the judgment was not an exparte judgment in the first place. He further argued that the judge had<br />
38 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
misdirected himself in both law and in fact in failing to appreciate that there was inordinate delay from the time<br />
IPC was served with summons to enter appearance and the time it applied<br />
for setting aside of the judgment and that the Judge had erred in law in<br />
allowing the firm of advocates to represent IPC when the firm was not<br />
properly on record as it had not sought leave of the court to appear for IPC.<br />
Held:<br />
1. Under the Order III rule 9A of the Civil Procedure Rules, a change of<br />
advocate after the judgment has been passed should not be effected without<br />
an order of the court upon an application with notice to the advocate already<br />
on record. However this only applied to a situation where a party who had<br />
previously engaged an advocate in a suit intended either to act in person or had engaged another advocate after the<br />
court has passed judgment, which was different from the present case as IPC had not engaged AG as counsel but had<br />
merely requested the AG to represent it. Therefore there was in essence no change of advocates and hence no leave<br />
of court was required.<br />
2. The superior court’s ruling (Ojwang J.) that the AG’s documents were a nullity as the AG had no locus standi to<br />
represent IPC meant that IPC had not been represented by AG ab initio hence, no advocate had been on record. Therefore<br />
there was in essence no change of advocates and hence no leave of court was required.<br />
3. The decision of the superior court that the AG had no locus standi to represent IPC was solely based on the narrow<br />
ground that IPC was a body corporate with its own power to sue and be sued in its own name. There was however no<br />
restriction on the right of representation. The superior court had thus confused the power of the Attorney General to<br />
institute civil proceedings and the discretion of the Attorney General to appear as a counsel for a party in civil proceeding.<br />
4. The Attorney General has discretion to appear as counsel for any public officer (even though the officer is sued in<br />
a private capacity) or for any public body. The appellant had been appointed and retired by the Government (through<br />
the relevant Permanent Secretaries) and the role of IPC was thus peripheral. The court below had erred in law in<br />
excluding the Attorney General from representing IPC and in striking out the appearance, defence and counter-claim<br />
filed on its behalf by AG.<br />
5. The superior court (Ransley J.) had exercised its discretion judicially, in view of the fact that had the superior<br />
court declined to set aside the judgment, IPC would have suffered great injustice as it would have been condemned<br />
unheard for no fault of its own.<br />
Appeal dismissed.<br />
Overriding objective – Hearing appeals on merit versus striking out on a technicality<br />
Joseph Kiangoi v Wachira Waruru and 2 others<br />
Civil Appeal (Application) No. <strong>13</strong>0 of 2008<br />
Onyango Otieno, Aganyanya & Nyamu, JJ.A.<br />
Court of Appeal at Nairobi<br />
July 9, 2010<br />
Reported by Njeri Githang’a<br />
Case History<br />
(An application to strike out the Notice of Appeal and record of Appeal being an appeal from the judgment and decree<br />
of the high Court of <strong>Kenya</strong> at Nairobi (Osiemo, J.) dated 21st September, 2007 in H.C.C.C. No. 701 of 2001)<br />
Civil Practice and Procedure - striking out-striking out record of appeal for lack of serviceapplication<br />
on the ground that the appellants/respondents had failed to serve the notice of appeal<br />
on the 3rd defendant in the High Court; a person directly affected by the appeal-test to be applied<br />
to determine a directly affected party-where the 3rd defendant was out of court’s jurisdiction and<br />
attempts to serve her had been futile- overriding objective- interpretation of the overriding objective<br />
by the court – where in the circumstances, justice was to be found in sustaining the appeal instead<br />
of striking it out on a technicality-whether the application could be allowed- Court of Appeal Rules,<br />
rule 76(1).<br />
The application was brought under Rules 80 and 42(1) of the Court of Appeal Rules and sought<br />
The Hon. Mr. Justice to strike out the 1st and 2nd respondents’ notice and the record of appeal. The ground of the<br />
J. G. Nyamu application was that the respondents/applicants were in breach of rule 76(1) of the Court of<br />
Appeal Rules which required an intended appellant to serve the notice of appeal to all persons<br />
directly affected by the appeal. It was alleged that the respondents had failed to serve the notice of appeal on the 3rd<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010 39
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
defendant in the High Court being a person directly affected by the appeal.<br />
The superior court had delivered a judgment in favour of the<br />
applicant in a defamation suit. Aggrieved by the said judgment,<br />
the respondent filed a notice of appeal which it failed to serve<br />
on the 3rd defendant in the suit in the superior court.<br />
It was submitted that, because the respondents had not served<br />
the hearing notice as required under rule 76 and had also not<br />
brought themselves under the proviso to the rule by seeking<br />
dispensation as stipulated, the Court had no jurisdiction and<br />
that the omission was fatal to both the Notice and the Record<br />
of Appeal.<br />
Held:<br />
1. The phrase “directly affected by the appeal” under Rule 76(1) of the Court of Appeal Rules did not have a technical<br />
meaning. It was a question of fact whether a party would or would not be affected by the outcome of an appeal. The<br />
test had to be whether if the appeal was to succeed, the result would adversely affect that party.<br />
2. Applying the test to the facts in the application in view of the fact that the 3rd defendant did not have any<br />
representation at the time the judgment was obtained and did not also give evidence meant that she would not be<br />
directly affected by the outcome of the appeal. The 3rd defendant had migrated from <strong>Kenya</strong> and the respondents had,<br />
though unsuccessfully tried to bring themselves within the proviso to rule 76 of the Court’s rules.<br />
3. The unsuccessful attempt by the respondents to bring themselves within the proviso to rule 76(1) could be cured<br />
by taking a broad view of justice as mandated by the overriding objective principle. In the circumstances, justice was<br />
to be found in sustaining the appeal for it to be heard on merit instead of striking it out on a technicality.<br />
4. The Court’s had to lean more towards sustaining appeals rather than striking them out as far as was practicable<br />
and fair. As a tool of justice, the overriding objective principle was both procedural and substantive. In the case, the<br />
substantive aspect of sustaining the appeal had to, in the interest of justice; override the procedural rule requiring<br />
the striking out of the notice of appeal and the record just because the respondents failed to seek restoration of the<br />
application for dispensation in circumstances which indicated that the 3rd defendant was outside the Court’s jurisdiction.<br />
Allowing the application would in the special circumstances of the case, act unjustly and the Court would fail to give<br />
effect to the overriding objective.<br />
Application dismissed<br />
Power of KACC to seek mutual legal assistance from foreign states<br />
<strong>Kenya</strong> Anti-Corruption Commission v First Mercantile Securities Corporation<br />
Civil Appeal No. 194 of 2008<br />
R S C Omolo,S E O Bosire & P N Waki JJ A.<br />
Court of Appeal, at Nairobi<br />
July 16, 2010.<br />
Reported by C W Lupao.<br />
<strong>Kenya</strong> Anti Corruption Commission - legitimacy of powers conferred upon the <strong>Kenya</strong> Anti Corruption Commission to<br />
seek assistance from foreign authorities in foreign jurisdictions in execution of its mandate- Anti-Corruption and Economic<br />
Crimes Act, 2003, section 12(3).<br />
The Hon. Mr. Justice<br />
R.S.C. Omolo<br />
This was an appeal against the judgement of the superior court (Lesiit J) barring the appellant<br />
from carrying out investigations into Anglo-Leasing related scandals in foreign jurisdictions.<br />
The respondent had moved to court to seek to bar the appellant from carrying out such<br />
investigations after the appellant had allegedly sought Mutual Legal Assistance from the<br />
Swiss authorities to carry out investigations into transactions related to the Anglo Leasing<br />
Contracts. After an application by the respondent, the superior court had ruled that the<br />
appellant, the <strong>Kenya</strong> Anti Corruption Commission, in the letter of Request for the Mutual<br />
Legal Assistance had breached the Municipal <strong>Law</strong>; that it was requesting a foreign country<br />
to carry out functions and exercise powers which were not donated to it under the Anti-<br />
Corruption and Economic Crimes Act, 2003; that it was in breach of the Act in that it purported<br />
it had power and duty to perform functions which either it could not do under the Act and<br />
or which it could only perform in a stipulated laid down procedure without or with judicial<br />
enforcement; that the Commission was seeking seizure of documentary evidence and of<br />
40 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
equipment and freezing of accounts, through means that were unlawful in <strong>Kenya</strong>, which,<br />
according to the court was not permitted.<br />
Upon the superior court’s ruling, the appellant filed this appeal contending<br />
among other things; that the learned Judge of the Superior Court erred in<br />
law in failing to appreciate the powers conferred on the Appellant by the<br />
Anti-Corruption and Economic Crimes Act, 2003; that the Judge misdirected<br />
herself in the interpretation of the powers conferred by section 12 (3) and 23<br />
(1) of the Act ; that the Judge erred in law in failing to find that the appellant<br />
was empowered to conduct its investigations with the co-operation of<br />
agencies outside <strong>Kenya</strong> and to make such request for Mutual Legal Assistance<br />
as it had in the circumstances made and lastly, that the learned Judge erred<br />
in law in restraining the appellant from performing its statutory mandate.<br />
Held:<br />
1. It was the sovereign Parliament of <strong>Kenya</strong> which gave to the appellant power to work in co-operation with any<br />
foreign government. So, in section 12 (3) of the Act, the Parliament of <strong>Kenya</strong> had conferred upon the appellant the<br />
power to work or act together or assist and be assisted by other foreign governments and if the appellant was carrying<br />
out an investigation into corruption or economic crime, it was at liberty to work or act together and to be assisted by<br />
any foreign government, international or regional organization. It logically followed that if the appellant wished to<br />
call upon the assistance of a foreign government, it had to ask for that assistance. Whether such assistance was to be<br />
called “Mutual Legal Assistance” or whatever name one could give it the truth of the matter was that the Parliament<br />
of <strong>Kenya</strong> gave the appellant authority to seek such assistance.<br />
2. The mere making of the request did not mean that the request would be automatically given; it could well be<br />
refused. But that the appellant had the right to make such request was specifically provided for under section 12 (3)<br />
of the Act which created it.<br />
3. The request was, if accepted, to be carried out in accordance with the Swiss <strong>Law</strong>. If that law allowed Swiss Authorities<br />
to seize documents and equipment, to freeze bank accounts etc, without any need to seek court orders there would<br />
be nothing wrong with that. If the Swiss law required them to obtain court orders before doing any of those things, it<br />
would be the duty of the Swiss Authorities to do so. The appellant could not have told the Swiss Authorities to provide<br />
their assistance and in doing so, require the Swiss Authorities comply with the <strong>Law</strong> of <strong>Kenya</strong>. That would be insulting<br />
to a foreign government.<br />
4. The appellant was a statutory body under <strong>Kenya</strong>n <strong>Law</strong> and it could only do that which its creating statute empowered<br />
it to do.<br />
Appeal allowed.<br />
Rules of natural justice and employment contracts<br />
<strong>Kenya</strong> Revenue Authority v Menginya Salim Murgani<br />
Civil Appeal No. 108 of 2009<br />
R S C Omolo,P N Waki & J G Nyamu JJ A.<br />
Court of Appeal, at Nairobi<br />
July 16, 2010.<br />
Reported by C W Lupao.<br />
Case History<br />
(Being an appeal from the judgment and decree of the High Court <strong>Kenya</strong> at Nairobi (Ojwang, J.) dated 22nd September,<br />
2008 in H.C.C.C. No. 1<strong>13</strong>9 of 2002)<br />
The Hon. Mr. Justice<br />
P. N. Waki<br />
Contract - terms of contract of service-where terms of contract of service prescribe how disciplinary<br />
action against an employee under the terms should be disciplined-employee alleging that his<br />
fundamental rights were breached during a disciplinary action-whether a court can import and<br />
consider rules of natural justice in adjudicating on a dispute involving a contract whose terms did<br />
not contain matters on rules of natural justice.<br />
Contract - termination of contract-termination of contract of service where terms of the contract<br />
do not specify duration of notice before the contract should be terminated-need for a reasonable<br />
notice to be given-what constitutes reasonable notice.<br />
Contract - termination of contract of service-whether a party to a contact of service need necessarily<br />
give any reason for termination of the contract as against the other party.<br />
Tort - tort of misfeasance- tort of misfeasance only capable of being committed by a public officer<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010 41
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
and not a public body as an entity.<br />
Damages - exemplary damages- circumstances under which exemplary damages are awarded in tort as against a public<br />
servant.<br />
Civil Practice and Procedure - damages-calculation of damages-calculation of damages being a judicial functions as<br />
opposed to being a ministerial act -whether a court can delegate calculation of damages to a different person such as the<br />
Deputy Registrar.<br />
This was an appeal arising from the judgment and decree of the superior court (Ojwang J) in which the learned judge<br />
found for the respondent in an action for damages for alleged breach of contract of service by the respondent. The<br />
respondent, who had been engaged by the appellant as Senior Research<br />
Officer, apparently on permanent and pensionable terms, had been dismissed<br />
from employment for alleged negligence of duty that led to evasion of duty<br />
on some goods by third parties. Following the said dismissal, the respondent<br />
successfully moved the superior court for damages on account that the<br />
appellant had terminated his employment yet the contract of employment<br />
was regulated by the appellant’s Code of Conduct and was not to be<br />
terminated save in accordance with the said Code. The Code allegedly had<br />
an implied term of employment that specified that unless the respondent<br />
was dismissed for misconduct or gross misconduct or compulsorily retired<br />
under the Code of Conduct, he would continue until he attained the age of<br />
55 years. In the alternative, the respondent pleaded that it was a further express term of the contract of employment<br />
that his employment would continue until determined by a six month notice in writing on either side or in lieu thereof,<br />
a payment of six months’ salary and alternatively, it was an implied term that the respondent’s employment would be<br />
determined only on service of a reasonable notice which in the circumstances meant six months or three months. On<br />
this account, the superior court awarded exemplary damages in the sum of Kshs.1million but gave ‘directions’ that<br />
the Deputy Registrar of the High Court ‘calculates’ the other heads of damages resulting in to the respondent being<br />
awarded of Kshs.28,883,712.00 as damages hence the appeal.<br />
The main grounds of appeal were; that the Judge erred in directing that the quantum of damages be assessed by the<br />
Deputy Registrar of the superior court yet he did not have the powers; that the Judge erred in directing the appellant<br />
to pay to the respondent salary and leave allowance for a period of seven years and six months which period was not<br />
reasonable and was infact manifestly excessive in the circumstances; that the Judge erred in directing the appellant<br />
to pay to the respondent salary and leave allowance for a period of seven years and six months which period was<br />
not reasonable and was infact manifestly excessive in the circumstances ; that the Judge made a fundamental error<br />
of law in holding that the applicant committed an actionable wrong known as misfeasance in public office when the<br />
respondent did not prove or establish the ingredients of that tort to the degree required by law.<br />
The central issues for determination were; whether a contract whose terms were an permanent and pensionable<br />
could be terminated by the giving of a reasonable notice, whether in the circumstances, the contract was properly<br />
terminated and if so, the legal consequences of such termination; if the contract had been wrongly terminated, what<br />
were the legal consequences of such termination; whether the superior court was justified in law in awarding general<br />
damages in respect of a contract of employment in lieu of the award of salary for the period of notice; whether the<br />
superior court was justified in law in awarding exemplary damages; whether the superior court was correct in law<br />
in awarding only one head of damages, namely exemplary damages in the sum of kshs.1 million and directing the<br />
calculation of the other heads to be done by the Deputy Registrar and the effect of the court’s directions; and lastly<br />
whether the superior court was justified in holding that in the circumstances, the appellant had committed actionable<br />
wrong known as misfeasance in public office?<br />
Held:<br />
1. It was a serious misdirection or misapprehension of the applicable law and of the factual position on the part of<br />
the Court to import into the contract both the rules of natural justice as it understood them including incorporating<br />
into the contract of employment the provisions of section 77 of the Constitution. It was not the business or function of<br />
a court of law to rewrite a contract for the parties by prescribing how the organs entrusted with disciplinary matters<br />
in a contract were to operate or to introduce terms and conditions extraneous to the contract. It was for the parties to<br />
provide in the contract how such organs should operate and how the hearings, if any, were to be conducted. A court<br />
of law could not import into a written contract of service rules of natural justice and the Constitutional provisions<br />
relating to the right of hearing unless parties themselves specifically stated so in their contract.<br />
2. Either party was allowed to terminate the contract by giving the stipulated notice or a reasonable notice if not<br />
specifically stipulated in the contract or alternatively, tender equivalent salary in lieu of notice. This applied whether<br />
or not the contract was permanent or pensionable and the right was vested in both the employee and the employer.<br />
3. A contracting party did not have to rely on misconduct in order to terminate a contract of service and a party could<br />
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terminate such a contract without giving any reason! If the reasons for dismissal were wrongful the measure of damages<br />
should have been in respect of the period of notice specified in the contract, and if not specified a reasonable notice.<br />
4. Application of the tort of misfeasance in public office just because the appellant was a parastatal had no basis<br />
in fact or law because whatever powers the appellant was exercising in dismissing the respondent stemmed from a<br />
contract of service between it and its employee and did not spring from the statutory power conferred on the appellant<br />
by the statute creating it, the <strong>Kenya</strong> Revenue Authority Act. For the purposes of entering into contract of employment<br />
a parastatal was just like any other employer and there could not be any legal basis for creating a distinction between<br />
contracts of service entered into by private companies with their employees and those entered into between parastatals<br />
and their employees.<br />
5. Even if the tort of misfeasance in public office was established on the basis of the facts in the matter, it would not<br />
lie against the appellant as a public body. It would only lie against a public officer of the appellant, whereas, in this<br />
matter the suit had been filed against the appellant. For the tort of misfeasance in public office to be proved it had to<br />
be shown at least that a public officer had done in bad faith or possibly, without reasonable cause, an act in the exercise<br />
or purported exercise of some power or authority with which he was clothed by virtue of the office he held.<br />
6.The superior court’s findings that the appellant was exercising statutory power was a serious misdirection in law<br />
which in turn led to the court’s erroneous findings that in the circumstances, the tort of misfeasance in public office<br />
had been committed by the appellant. The appellant as an employer in finally making the decision to dismiss the<br />
respondent was not exercising its statutory power under the Act creating it but rather exercising disciplinary power<br />
under a contract of service<br />
7. The termination was based on the contract between the parties and its invocation by the appellant to terminate or<br />
dismiss the respondent could not constitute an actionable tort just because the appellant happened to be a creature<br />
of statute.<br />
8. On the basis of the evidence, the appellant’s conduct could not be said to be oppressive, arbitrary or unconstitutional,<br />
hence, the superior court’s award of exemplary damages was erroneous. The two categories when exemplary damages<br />
are usually awarded are in the case of oppressive, arbitrary or unconstitutional action by the servants of the government<br />
and in the case where the defendant’s conduct had been calculated to make a profit for himself which might well exceed<br />
the compensation payable to the plaintiff.<br />
9. The superior court’s delegation for calculation of some heads of damages was erroneous since this act amounted<br />
to converting a judicial function into a ministerial function. Both the award and the level or quantum of damages was<br />
a judicial function which the superior court could not rightfully delegate to a Deputy Registrar. There is no provision in<br />
law for delegating any judicial functions to the Deputy Registrar. Any such delegation would be a nullity. A judgment<br />
must be complete and conclusive when pronounced and therefore it could not be left to the Deputy Registrar to perfect<br />
it. Assessment of damages was not a ministerial act as envisaged by Order 48 of the Civil Procedure Rules.<br />
Appeal Allowed.<br />
Extension of time: Inordinate delay<br />
Attorney General v Hon Prof George Saitoti<br />
Civil Application No. Nai 75 of 2007<br />
Alnashir Visram JA<br />
Court of Appeal at Nairobi<br />
July 29, 2010<br />
Reported by C W Lupao.<br />
Case History<br />
(Application for extension of time to file a record of appeal in an intended appeal from the judgment of the High Court<br />
of <strong>Kenya</strong> at Nairobi (Nyamu, Wendoh & Emukule, JJ.) dated 31st July, 2006 in Misc. Civil<br />
Application No. 102 of 2006.<br />
Civil Practice and Procedure- application-application for extension of time to file an<br />
intended appeal-applicant making the application 4 years after the decision being appealed<br />
against was delivered-effect of the inordinate delay on the application-factors considered<br />
by court before grant of application for stay pending appeal-Court of Appeal Rules, rule4.<br />
The Hon. Mr. Justice<br />
A. Visram<br />
This was an application for extension of time to file an appeal from the judgment and order<br />
of the superior. The judgment in the case before the superior court was delivered on 31st<br />
July, 2006 and a notice of appeal filed within time on 10th August, 2006. The applicant<br />
was subsequently provided with a copy of the typed record of proceedings on 9th February,<br />
2007, the last day for filing the record of appeal being 10th April, 2007. However, on 5th<br />
April, 2007 the applicant filed an application for extension of time seeking<br />
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From the Courts — Court of Appeal<br />
an order that his time to lodge the Record of Appeal against the superior<br />
court’s judgment and decision be extended by such period and upon such<br />
terms as the Court would deem appropriate. Counsel for the respondent<br />
submitted that it would be unjust to grant the applicant an indefinite extension<br />
of time, that the delay therein was inordinate and inexcusable, and that the<br />
same was highly prejudicial of the respondent who had to step down as<br />
Minister in the Government of <strong>Kenya</strong>, and who faced similar prospect, had<br />
the matter been allowed to drag on indefinitely.<br />
Held:<br />
1.The order sought by the applicant, given the manner in which it was drafted, and based on submissions made before<br />
the court, appeared to be for an indefinite period of time.<br />
2.The court’s discretion as given by rule 4 of the Court of Appeal Rules to extend time had to be exercised judiciously.<br />
3.The decision whether or not to extend the time for appealing was essentially discretionary. The matters which the<br />
court took into account in deciding whether to grant an extension of time were first the length of the delay. Secondly,<br />
the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application was granted and<br />
fourthly the degree of prejudice to the respondent if the application were granted.<br />
4. Any further delay in this litigation was highly and unfairly prejudicial to the respondent who had once had to step<br />
down from his ministerial duties, and who continued to face the prospect of further embarrassment, inconvenience,<br />
loss and injury to his character and reputation, unless the matter came to an end. He had waited four years from the<br />
date of judgment in the superior court and was entitled to bring the matter to a closure.<br />
5.The delay to seek extension to file appeal after 4 years was inordinate and unacceptable.<br />
Application dismissed.<br />
Procurement: Stay of a High Court decision on a Judicial Review of a decision of the Appeals Review Board<br />
R v Public Procurement Administrative Review Board & 3 Others<br />
Civil Application No Nai 63 of 2010 (UR 43/2010)<br />
Court of Appeal at Nairobi<br />
Githinji,Aganyanya &Visram JJ A<br />
July 30, 2010<br />
Reported by Emma Kinya<br />
Case History<br />
An appeal from the judgment of the High Court of <strong>Kenya</strong> at Nairobi (Wendoh, J.) dated 18th March, 2010 in H C C C<br />
No.53 of 2010<br />
Civil practice and Procedure – stay – application for orders of certiorari and mandamus made by High Court to be stayed<br />
pending the determination of intended appeal – allegation that High Court only had jurisdiction to grant orders of certiorari,<br />
prohibition and mandamus and not a nullification contract – application defective – where the application sought for<br />
stay of order rather than stay of execution – overriding objective of the Appellate jurisdiction Act – whether<br />
the court could treat the application as an application for stay of execution – whether the High<br />
Court had jurisdiction to declare the contract null and void – Rule 5 (2) (b) Court of Appeal Rules<br />
and sections 3A, 3B of the Appellate Jurisdiction Act and section 9 (5) <strong>Law</strong> Reform Act<br />
The applicants applied for orders of certiorari and mandamus made by the High Court to<br />
be stayed pending the determination of the intended appeal and further, that the Public<br />
Procurement Administrative Review Board be barred from hearing a request for review<br />
pending the hearing and determination of the intended appeal.<br />
The Hon. Mr. Justice<br />
D. K. S. Aganyanya<br />
The application was based on a dispute between the applicant, <strong>Kenya</strong> Electricity Generating<br />
Company Limited, who was a procuring entity and the 1st interested party, Zhongman<br />
Petroleum 7 Natural Gas Group Limited, who was the unsuccessful tenderer. The applicant<br />
had invited tenders for the supply of Electrical Land Rigs and associated equipment for drilling<br />
wells for geothermal power generation. The tender was awarded to Shengli oil Fields Highland<br />
Petroleum Equipment Limited.<br />
Zhongman Petroleum & Natural Gas Limited was aggrieved by the applicant’s decision and subsequently presented a<br />
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request for review to the respondent alleging breaches of various provisions of the Public Procurement and Disposal<br />
Act and the Regulations. However, the applicant filed a Notice of Preliminary Objection to the hearing of the review<br />
on the ground that the Review Board had no jurisdiction to entertain the request for review since the request was<br />
allegedly made after the stipulated period of 14 days of notification to the unsuccessful tenderer. The Review Board<br />
upheld the Preliminary Objection and dismissed the request for review.<br />
Zhongman Limited aggrieved by the decision of the Review Board, filed a Judicial Review application seeking an order<br />
of certiorari to quash the decision of the Review Board and an order of<br />
Mandamus to compel the Review Board to hear the Request for Review. The<br />
High Court allowed the Judicial Review application and not only granted the<br />
orders of certiorari and mandamus but also held that the contract between the<br />
applicant and the 2nd Interested Party was illegal and a nullity ab initio.<br />
Subsequently, the appellant appealed against the order that sought the order of<br />
certiorari and mandamus to be stayed and further filed an application seeking<br />
an order that the orders of certiorari and mandamus be stayed.<br />
The issues before court questioned the legality of the Judicial Review proceedings which had resulted in the nullification<br />
of the contract and in the grant of the order of mandamus, whether High Court had jurisdiction to nullify the contract<br />
and to grant the order of mandamus and whether the Review Board had jurisdiction to hear the request for Review.<br />
Held:<br />
1.The application was defective for two reasons: Firstly, Rule 5 (2)(b) of the Court of Appeal Rules did not give court<br />
jurisdiction to grant a general stay order as sought in the application, rather, it gave the court jurisdiction to grant<br />
three specific orders, namely, to order a stay of execution, grant an injunction or a stay of any further proceedings. The<br />
applicant should have sought a stay of execution.<br />
2.An order of certiorari by its nature could not be stayed pending appeal by interlocutory proceedings. It could only<br />
be set aside in the appeal itself and therefore, the quashing of the decision of the High Court by an order of certiorari<br />
could not be suspended pending appeal and the application was incompetent to that extent.<br />
3.The defect in the application which sought a stay of order of mandamus rather than a stay of execution of the order<br />
of mandamus was minor and in accordance with the overriding objective of the Appellate Jurisdiction Act, court treated<br />
the application as an application for stay of execution of the order of mandamus.<br />
4.The High Court construed section 100(4) of the Public Procurement and Disposal Act (Cap 3) which prescribed a<br />
limitation period of 30 days as not being a fetter to the unlimited jurisdiction of the High Court conferred by section<br />
60 of the Constitution of <strong>Kenya</strong> and ruled that it was seized of the matter until it had rendered a decision.<br />
5.The High Court declared the contract illegal, null and void on the ground that it was entered into before Zhongman<br />
Limited had exhausted its right to challenge the decision of the Review Board.<br />
6.An appeal lay to the Court of Appeal as of right from the impugned decision of the High Court. The issue could be<br />
raised at the hearing of the appeal for final determination.<br />
7.The appeal would be rendered nugatory as the substratum of the appeal would not have been subsisting unless the<br />
Review proceedings before the Review Board were stayed. In addition, the appeal had raised important jurisdictional<br />
issues in the procurement process. The procurement jurisprudence was evolving and it was in the public interest that<br />
the issues raised in the appeal should have been determined by the court of the last resort.<br />
8.The 1st Interested Party, Zhongman would not have suffered prejudice if the application was allowed because the<br />
effect of the order of stay was not to reverse the order of certiorari or mandamus. It was not correct that the contract<br />
would be performed if the order of stay was not granted. The order of stay would only relate to the proceedings before<br />
the Review Board.<br />
Application allowed.<br />
Legality of imposing a mandatory death sentence for murder<br />
Godfrey Ngotho Mutiso v Republic [2010] eKLR<br />
Criminal Appeal 17 of 2008<br />
Court of Appeal at Mombasa<br />
R. S. C. Omolo, P. N. Waki & J. W. Onyango Otieno, JJA<br />
July 30, 2010<br />
Reported by Emma Kinya<br />
Case History:<br />
(An appeal from a judgment of the High Court of <strong>Kenya</strong> at Mombasa (Sergon, J.) dated 29th February, 2008 in H C CR<br />
C No 55 of 2004)<br />
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From the Courts — Court of Appeal<br />
Constitutional <strong>Law</strong> -constitutional right-right to life-enjoyment of right to life-where a sentencing regime imposes a<br />
mandatory sentence of death on all proven murder cases-whether an accused person sentenced under such a regime should<br />
be given a chance for mitigation on the basis of his criminal culpability.<br />
Sentence-death sentence -inconsistency of section 204 of the Penal Code (cap 63) <strong>Law</strong>s of <strong>Kenya</strong> vis-à-vis Constitutional<br />
Provision for Protection against Inhuman or Degrading Punishment or Treatment-whether a conviction for murder should<br />
necessarily attract death sentence.<br />
Jurisdiction -jurisdiction of the Court of Appeal to adjudicate on alleged contravention of one’s constitutional rights as<br />
enshrined in the Constitution of <strong>Kenya</strong>.<br />
The appellant had been convicted of the offence of murder by the High Court and subsequently<br />
sentenced to death. He was aggrieved by his conviction and sentence and therefore appealed<br />
on the ground that the imposition of a mandatory death sentence upon him was arbitrary<br />
and unconstitutional and that the execution of the same would amount to an inhuman and<br />
degrading punishment in breach of section 74(1) of the Constitution of <strong>Kenya</strong>; an arbitrary<br />
deprivation of life in breach of section 71(1) and 70 (a) of the Constitution and a denial of<br />
his right to fair trial in breach of section 77 of the Constitution of <strong>Kenya</strong>.<br />
The Hon. Mr. Justice<br />
R.S.C. Omolo<br />
However, before the hearing, the president had issued a blanket commutation of all the death<br />
sentences imposed against all the death row convicts in the country including the appellant.<br />
The commutation was on advice of the Advisory Committee on Prerogative of Mercy and the<br />
Powers were exercised under the Constitution.<br />
During the hearing, the appellant submitted that the imposition of the mandatory death penalty for particular offences<br />
was neither authorized nor prohibited in the current Constitution and therefore, it was upon the courts to give a valid<br />
constitutional interpretation on the mandatory nature of the sentence. He further stated that the mandatory death<br />
sentence was antithetical to fundamental human rights and that there was no constitutional justification for it. He further<br />
stated that an accused person ought to be given an opportunity to show why the death sentence should not have been<br />
passed against him. The appellant found the imposition of a mandatory death sentence to have been arbitrary because<br />
the offence of murder covered a broad spectrum. He submitted that section 204of the Penal Code which was to the effect<br />
that any person convicted of murder shall be sentenced to death was unconstitutional and should be declared a nullity.<br />
The issue before court was whether it was inhuman to impose a sentence of death without considering mitigating<br />
circumstances of the commission of the offence and the offender; whether the dignity of humanity is ignored if this<br />
final and irrevocable sentence is imposed without the individual having any chance to mitigate; whether the lawful<br />
punishment of death should only be imposed after there was a judicial consideration of the mitigating factors relative<br />
to the offence itself and the offender.<br />
Held:<br />
1.Section 84 of the Constitution of <strong>Kenya</strong> provided for the enforcement of the protective provisions under Chapter<br />
V and did not provide for exclusive jurisdiction of the High Court. Further, subsection 7 provided for appeal to the<br />
Court of Appeal as of right on matters determined by the High Court and therefore, it had jurisdiction to explore and<br />
adjudicate on the constitutional issues raised in the appeal.<br />
2.Section 204 of the Penal Code which provided for a mandatory death sentence was antithetical to the Constitutional<br />
provisions on protection against inhuman or degrading punishment or treatment and fair trial. The Constitution<br />
recognized the death penalty as being lawful but it had not mentioned anywhere that when a conviction for murder<br />
was recorded, only the death sentence should be imposed.<br />
3.Section 204 of the Penal Code was inconsistent with the letter and spirit of the Constitution to the extent that it<br />
provided that the death penalty was the only sentence in respect of the crime of murder.<br />
4.The High Court erred by imposing the death penalty upon convicting the appellant. According to section 329 of<br />
the Criminal Procedure Code, he was entitled to receive such evidence as he would have thought fit before passing<br />
sentence in order to have informed himself as to the proper sentence to pass. The appellant was therefore entitled to<br />
have his antecedents and other mitigating factors recorded for purposes of assisting the President in exercise of mercy<br />
but no information was recorded.<br />
5.Courts would continue to impose the death penalty but that would only be done after the court had heard submissions<br />
relevant to the circumstances of each particular case.<br />
Appeal allowed.<br />
Case remitted to High Court to record both the prosecution and appellant’s submission before deciding on the appropriate<br />
sentence.<br />
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From the Courts — Court of Appeal<br />
Framing of a charge of rape and defilement<br />
Mwango Jambo Chilango v Republic<br />
Criminal Appeal No. 415 of 2009<br />
Court of Appeal at Mombasa<br />
P.K. Tunoi, P. N. Waki, J.G. Nyamu JJ.A<br />
July 30, 2010<br />
Reported by Monica Achode<br />
Case History<br />
Appeal from a judgment of the High Court of <strong>Kenya</strong> at Malindi (OMbija, J) dated 29th July, 2009 in H.C.CR.A. No. 31 of 2006<br />
The Hon. Mr. Justice<br />
P. K. Tunoi<br />
Criminal Practice and Procedure – appeal – second appeal – appeal against conviction and<br />
15 year sentence on a charge of defilement of a child - definition of the word “defilement” –<br />
whether the appeal had merit – Penal Code section 145(1) (Cap 63).<br />
Criminal Practice and Procedure – charge - defective charge sheet – charge sheet failing<br />
to state the word “unlawfully” as part of the particulars of the charge – effect of – whether<br />
the omission prejudiced the accused – whether the omission could be cured by the provisions<br />
of section 382 of the Criminal Procedure Code (Cap 75) – appellant not charged with others -<br />
evidence – identification – identification by recognition – appellant being an uncle to the<br />
complainant – appellant claiming that an identification parade should have been conducted<br />
– concurrent findings from the lower and superior court – whether the appellate court could<br />
challenge that.<br />
The appellant brought a second and final appeal against a conviction of 15 years on a charge<br />
of defilement of a girl. Amongst his grounds of appeal were that the charge sheet was defective for failing to include<br />
the word “unlawful” in the framing of the charge and that he should have been charged jointly with the other accomplices.<br />
It was his contention that these omissions occasioned him an injustice. He further claimed that he had not been properly<br />
identified by the witnesses and that an identification parade should have been conducted. During the trial it emerged<br />
that the appellant was an uncle to the complainant and had therefore been identified<br />
by means of recognition. The prosecution on its part stated that failure to use the<br />
word “unlawful” in the charge sheet was not fatal because there could not be<br />
“consensual” defilement and, further that the defect, was curable under Section 382<br />
of the Criminal Procedure Code.<br />
Held:<br />
1. The Court has consistently applied the provisions of Section 382 of the Criminal<br />
Procedure Act to cure the omission of the word “unlawfully” in a charge sheet. The omission of the word “unlawful”<br />
from both the main and alternative counts did not in any way whatsoever prejudice the appellant in putting forward<br />
his defence. The major purpose of a charge was to inform the accused of what he was charged with.<br />
2. In a charge of rape there could be no question of two or more people “jointly raping a victim”.<br />
3. From the definition of the offence of the defilement in Section 145 of the Penal Code the main ingredients were the<br />
act of defilement and the age of the girl. It therefore followed that the offence of defilement as defined in the section<br />
was complete without the addition of the word “unlawful”. The word only became relevant when the defence in the<br />
proviso to the section was invoked.<br />
4. The appellant was identified by the complainant and his two relatives who separately and consistently described<br />
the appellant as their uncle. There was no reason to interfere with the concurrent findings of the lower and superior<br />
courts holdings on identification. Under those circumstances an identification parade was not necessary.<br />
Appeal against conviction and sentence dismissed<br />
Advocate:<br />
Mr. Ondari, Assistant Director of Public Prosecution<br />
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From the Courts — Court of Appeal<br />
Salim Mohammed Oyuga v Republic<br />
Criminal Appeal No. 207 of 2009<br />
E.O. O’kubasu, E.M. Githinji, J.W. Onyango Otieno<br />
Court of Appeal at Kisumu<br />
September 23rd 2010<br />
Reported by Monica Achode<br />
Case History<br />
Appeal from a judgment of the High Court of <strong>Kenya</strong> at Kisumu (Mwera & Karanja, JJ) dated 21st July, 2009 in H.C. Cr.<br />
A. No. 103 of 2006<br />
The Hon. Mr. Justice<br />
E. M. Githinji<br />
Duty to call necessary witnesses<br />
Criminal Practice and Procedure – appeal – second appeal – appeal against a conviction on a<br />
charge of robbery with violence – appellant convicted on the doctrine of recent possession – appellant<br />
convicted on the evidence of a single witness – whether that doctrine had been applicable – failure<br />
by prosecution to call some witnesses – claims of discrepancies in the dates adduced – court duty<br />
to call witnesses where evidence was essential – whether omissions and discrepancies were curable<br />
– whether the case had been proven to the required standards - Evidence Act (Cap 80) section 143,<br />
Penal Code (Cap 63) section 296 (2).<br />
The appellant came to court seeking to appeal against a decision of the superior court convicting<br />
him on a charge of robbery with violence. The appellant’s advocate contended that had not been<br />
properly identified as there was no connection between the appellant and the robbers. She<br />
further contended that the date given in the charge sheet contradicted the evidence given by<br />
the witnesses on that issue. It was also her contention that as the complainant alleged that she<br />
was attacked, but produced no P3 form to prove the same, the offence of robbery with violence under section 296 (2)<br />
of the Penal Code was not proved. Lastly, the appellant’s advocate maintained that the doctrine of recent possession<br />
was not applicable in this case as the investigating officer did not give evidence in this case and thus the case was not<br />
proved within the standards required by law.<br />
On its part the respondent submitted that the conviction was properly entered against the appellant as it was based<br />
on possession of recently stolen property and as the robbers were more than one, it did not matter whether personal<br />
violence against the complainant was proved or not. On the discrepancy on the date of the arrest, the respondent<br />
submitted that it resulted from a typographical error and was thus curable under section 382 of Criminal Procedure<br />
Code. Lastly, state counsel submitted that even though the investigating officer was not called as a witness, nonetheless,<br />
the evidence though of a single witness that was adduced in court was adequate and there was no need for any other<br />
evidence in respect of the entire case. The main issue in contention was whether the doctrine of recent possession<br />
was applicable in the case.<br />
Held:<br />
1. Matters such as whether the failure by the prosecution to call the investigating officer to testify was fatal or whether<br />
the discrepancy in the date of arrest as given in evidence had any serious bearing in the case, were matters that could<br />
not be of serious consequences. Under section 143 of the Evidence Act, no particular number of witnesses shall, in<br />
the absence of any provision of law to the contrary, be required for the proof of any fact.<br />
2. The court could on its own as a matter of a right and a duty call witnesses where evidence<br />
appeared essential to the just determination of the case. Nonetheless this was only where<br />
the evidence called was so inadequate that the court could infer that the evidence of<br />
uncalled witnesses would have tended to be adverse to the prosecution. This was not<br />
such a case.<br />
3. On the issue of the discrepancy between the date of arrest as in the charge sheet<br />
and as given in evidence, again we say nothing turns on that as the appellant himself<br />
agrees that he was arrested on 10th August, 2005 and not on 16th August as appears in<br />
the charge sheet. The error in the charge sheet was clearly curable by the provisions of<br />
section 382 of the Criminal Procedure Code.<br />
4. The superior court, in analyzing and evaluating the same evidence afresh also accepted<br />
the evidence of the prosecution witnesses that the mobile phone had been received<br />
from the appellant. In law, the appellate court would be reluctant to interfere with such<br />
a finding on second appeal.<br />
5. The two courts were plainly right that the appellant was shown by the single witness, whose evidence was believed<br />
by the two courts to have been in possession of the stolen mobile phone only a few hours after robbery. He gave no<br />
48 <strong>Issue</strong><strong>13</strong>: July-December 2010
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<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
explanation whatsoever for that possession. The law was clear that under the circumstances he was proved to be one<br />
of the robbers. As the robbers were more than one, it did not matter that the complainant had not proven violence<br />
by producing P3 form. Even if that ingredient was ignored, the other ingredient of the complainant and others being<br />
attacked and robbed off their properties by more than one person was enough to prove the offence under section<br />
296(2) of the Penal Code. Failing to produce a P3 form did not disprove the offence as charged.<br />
Appeal lacks merit.<br />
Advocates:<br />
Mrs. Odoyo for the appellant;<br />
Miss Oundo Principal Sate Counsel<br />
Standard Limited v G.N. Kagia t/a Kagia & Company Advocates<br />
Civil Appeal No115 of 2003<br />
Court of Appeal, at Nairobi<br />
P K Tunoi, Moijo Ole Keiwua & J G Nyamu JJ A<br />
September 24, 2010<br />
Reported by Cornelius W Lupao.<br />
Civil Practice and Procedure -damages-award of damages- mandate and latitude of the Court of Appeal and the principles<br />
it applies to interfere with a trial court’s award of damages in libel- Rock-vs- Fairrie [1941] I All ER 297; Tanganyika<br />
Transport Company Ltd. –vs- Ebrahim Nooray [1961] E.A. 55.0<br />
The Hon. Mr. Justice<br />
D. K. J. G. S. Nyamu Aganyanya<br />
Defamation: Award of damages<br />
Tort - libel-assessment of damages by the trial court in an action for libel-factors the trial court<br />
should consider in assessment of damages in an action for libel.<br />
Tort - libel- essence and rationale for award of damages in libel.<br />
This was an appeal against the quantum of damages awarded to the respondent following the<br />
publication of an alleged defamatory story by the appellant. It had been alleged that on or about<br />
the 6th of December 1999, the appellant wrote, printed and published or caused to be written<br />
certain falsehoods concerning the respondent. The said publication had allegedly implied that<br />
the respondent was one of the advocates who had made false insurance compensation claims.<br />
Aggrieved, the respondent filed a suit against the appellant in the superior court, to which Rimita,<br />
J. found for the respondent and awarded him general damages in the sum of Kshs.5, 000,000<br />
and exemplary damages in the sum of Kshs.1, 000,000. As a result, the appellant appealed to the<br />
Court of Appeal restricting itself to the quantum of damages awarded. Counsel for the appellant<br />
argued that the damages awarded were inordinately high and out of line with awards in some four comparable cases.<br />
He further argued that the respondent had failed to mitigate his loss because an offer of amends had been made by<br />
the appellant and finally, that a Kshs.2, 000,000.00 award in respect of general damages would have been sufficient.<br />
On his part, counsel for the respondent argued that the award was neither excessively high nor inordinately high; that<br />
in all the authorities relied on by the appellant on quantum, damages awarded were in the range of 1 (one) to 2 (two)<br />
million and that they were distinguishable because in some, the libel was restricted to either one institution or it was<br />
contained in a book and publication which was restricted to the book readers as opposed to the libel the subject matter<br />
of this case where the publication was to all readers and their associates; and that an advocate of 30 years standing in<br />
terms of injury to his reputation was in the same position as other prominent advocates and other prominent people<br />
awarded damages in the range of (6) six to (30) thirty million in the past and finally that, there was proof that his client<br />
had lost business as a direct consequences of the libel.<br />
Held:<br />
1.The latitude in awarding damages in an action for libel is very wide, that is, a Court of Appeal is to avoid substituting<br />
its own opinion as to what it would have awarded for the sum which had been awarded by a Judge below.<br />
2.An appellate court would not disturb an award of damages unless it is so inordinately high or low as to represent<br />
an entirely erroneous estimate. It must be shown that, the Judge proceeded on wrong principles or that he/she<br />
misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high<br />
or low.<br />
3.In an action for libel, the trial court in assessing damages is entitled to look at the whole conduct of the defendant<br />
from the time the libel was published down to the time the verdict was given. It could consider where his conduct had<br />
been before action, after action and in court during the trial.<br />
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From the Courts — Court of Appeal<br />
4.A man defamed does not get compensation for his damaged reputation but rather he gets damages because he is<br />
injured in his reputation, that is, simply because he is publicly defamed. For this reason, compensation by damages<br />
operates in two ways - as a vindication of the plaintiff to the public and as a consolation to him for a wrong done.<br />
5.In situations where the author or publisher of a libel could have with due diligence verified the libelous story, for<br />
instance, where the author or publisher was reckless or negligent, then this factors should be considered.<br />
6.The level of damages awarded should be such as to act as deterrence and to instill a sense of responsibility on the<br />
part of the authors and publishers of libel such that personal rights, freedoms and values should never be sacrificed<br />
at the altar of profiteering by authors and publishers.<br />
Appeal allowed in part, award of Kshs.6, 000,000 (six million) substituted with an award of Kshs. 3,000,000 (three<br />
million).<br />
Advocates:<br />
Mr. Billings for the Appellant<br />
Mr. Mugi for the Respondent.<br />
Wellington Nganga Muthiora v Akamba Public Road Services Limited & Another<br />
Civil Appeal No. 260 of 2004<br />
M. Ole Keiwua, J.W. Onyango Otieno, A. Visram JJ.A<br />
Court of Appeal at Kisumu<br />
September 24, 2010<br />
By Monica Achode<br />
Case History<br />
Appeal from the judgment and decree of the High Court of <strong>Kenya</strong> at Kisumu (Warsame, J.) dated 3rd May, 2004 in<br />
H.C.C.C. No. 78 of 2003<br />
The Hon. Mr. Justice<br />
A. Visram<br />
Civil Practice and Procedure – appeal – second appeal against a decision of the lower and<br />
superior court dismissing suit for damages in a road traffic accident – appellant having produced<br />
a police abstract as proof ownership of the motor vehicle – evidentiary and probative value of a<br />
police abstract - whether a police abstract produced in proof of ownership of the subject vehicle<br />
was enough evidence – appellate court jurisdiction to hear the appeal.<br />
The appellant brought a second and final appeal against the lower and superior courts’ decision<br />
to dismiss his suit. It had been a claim for damages against the respondent for negligently causing<br />
the appellant injuries in a road traffic accident. Neither the trial nor the high court believed the<br />
appellant’s story as regards his being in the subject vehicle as his name was not in the manifest<br />
and he failed to produce ticket showing he was a fare paying passenger. In dismissing his suit the<br />
high court had stated that the police abstract had little evidentiary and probative value capable<br />
of ascertaining the legal ownership of the motor vehicle which was alleged to have caused the<br />
accident. The issue of the appellate court’s jurisdiction to hear the appeal was also raised.<br />
Held:<br />
1. Where police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even<br />
cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as<br />
proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not<br />
beyond reasonable doubt as is in criminal cases. However, where it was challenged by evidence or in cross-examination,<br />
the plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of<br />
the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary.<br />
2. Where a right of appeal was confined to question of law, an appellate court had loyalty to accept the findings of<br />
fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of<br />
fact and law. It was not to interfere with the decision of the trial or first appellate court unless it was apparent that<br />
on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the<br />
decision was bad in law. As the appellant’s evidence was not believed and as it was a matter of fact, the appellate court<br />
could not interfere with that finding which was a concurrent finding of the<br />
two courts below.<br />
Appeal lacks merit and is dismissed with costs to the respondents.<br />
Advocates:<br />
Mr. Otieno h/b for Mr. Gathua for the appellant;<br />
Mr. Odhiambo for the respondent<br />
Proof of ownership of accident vehicle by police abstract<br />
50 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
Ali hassan Abdirahman v Mahamud Muhumed Sirat & 2 others<br />
Civil Appeal No 26 of 2010<br />
Court of Appeal at Nairobi<br />
Githinji, Waki & Viram JJ A<br />
October 12, 2010<br />
Reported by Emma kinya<br />
Case History<br />
(An appeal from the ruling and order made by the superior court at Nairobi (Kimaru,J.)dated 22nd January, 2010 in<br />
H C ELECTION PETITIION No. 15 of 2008<br />
The Hon. Mr. Justice<br />
P. N. Waki<br />
Election law – interlocutory appeal – appeal against decision of the High Court dismissing an<br />
application for dismissal of an election petition, by holding that the 1st respondent was not in<br />
breach of the law in filing the election petition since the election court could not invalidate his<br />
National Identity Card and Passport – ground; that the speaker of the National Assembly acted on<br />
a certificate issued by the election court when the law made provisions for an appeal against the<br />
decision of that court - whether such an appeal would be efficacious once the writ had been issued<br />
– whether the appeal had merit – National Assembly and Presidential Elections Act (Cap 7) section<br />
23(4).<br />
This was an interlocutory appeal arising from the High Court ruling which had dismissed an<br />
interlocutory application seeking the dismissal of an election petition filed in relation to Wajir<br />
South constituency. The applicant had made an application seeking to have the election petition<br />
dismissed on the grounds that the respondent was not a <strong>Kenya</strong>n citizen as he had acquired Australian citizenship and<br />
therefore did not qualify to participate in an election. The High Court dismissed the application by holding that the 1st<br />
respondent was not in breach of the law in filing the election petition since the High Court sitting as an election court<br />
could not validate his National Identity Card and Passport.<br />
The appellant preferred an appeal challenging the High Court’s decision on the grounds that the speaker of the National<br />
Assembly had acted on a certificate issued by the election court when the law had made provisions for an appeal against<br />
the decision of that court. He submitted that the law presupposed that as long as the parliamentary seat remained<br />
vacant, the process could be reversed by a successful appeal and that since the parliamentary seat was still vacant, the<br />
Court of Appeal was not precluded from granting the prayer sought in the memorandum of appeal.<br />
The issue before the court was whether the appeal would be efficacious once the writ had issued.<br />
Held:<br />
1.The interlocutory appeal had been overtaken by events and any orders issued would be made in vain which was<br />
an eventuality that any court would not countenance.<br />
2.The interlocutory application made before the High Court, sitting as an election court, was predicated on an election<br />
petition and as long as that petition remained undetermined, the Court of Appeal could make orders which would bind<br />
the High Court in the main petition. However, this position had ceased.<br />
3.The Court of Appeal recognized that High Court had declared the elections held in Wajir South Constituency as null<br />
and void and had proceeded to issue a certificate to that effect in accordance with the law. Further, that the speaker<br />
had also issued a writ and that nominations were completed and a by-election imminent.<br />
4.Section 23(4) of the National Assembly and Presidential Elections Act (Cap 7) allowed for an appeal against the<br />
decision of the election court but it was not clear whether such an appeal would still be efficacious once the writ<br />
had been issued by the speaker. However, the Court of Appeal noted that the matter was not an issue it was called to<br />
adjudicate upon.<br />
5.The interlocutory appeal served no purpose as it hung in the air after the conclusion of the Election Petition on<br />
which it was predicated.<br />
Appeal dismissed.<br />
Election petition: Interlocutory appeal overtaken by events<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010 51
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From the Courts — Court of Appeal<br />
Plea bargaining Plea bargaining - restricted - consideration right of appeal of the against victim sentence impact statement befor sentencing<br />
Jacob Kirimu Kabiru v Republic<br />
Criminal Appeal No. 363 of 2009<br />
Bosire, Githinji & Nyamu, JJ A<br />
Court of Appeal at Nyeri<br />
November, 2010<br />
By Njeri Githang’a<br />
Case History<br />
(Appeal from a conviction and decree of the High Court of <strong>Kenya</strong> at Nyeri (Makhandia, J.) dated 16th December, 2009<br />
in H C CR C No. 63 of 2008)<br />
The Hon. Mr.<br />
Justice<br />
S. E. O. Bosire<br />
Criminal Practice and Procedure - plea bargaining – appellant’s murder charge reduced to<br />
manslaughter after plea bargaining-appellant sentenced to 10 years imprisonment-appeal on the<br />
ground that appellant’s mitigating factors had not been considered while sentencing- where there<br />
was no right of appeal against a sentence following a plea bargaining agreement -factors to be<br />
considered by the trial court before sentencing-failure by the court to take into consideration the<br />
willingness of the appellant to assist the dependants of the victim since he was a family memberwhether<br />
the sentence could be reduced- Criminal Procedure Code(Cap 75) sections <strong>13</strong>7A to E, <strong>13</strong>7L<br />
(1) and 329 (c)<br />
The appellant had been charged with murder but pursuant to a plea bargaining agreement, the<br />
charge of murder was reduced to manslaughter. The trial court consequently convicted him on his<br />
own plea of guilt and sentenced him to ten years imprisonment. The appellant was aggrieved by<br />
the sentence and sought to appeal against it. The appeal was brought on the ground that having<br />
pleaded guilty to the lesser charge of manslaughter and having saved the court’s time and resources, the appellant<br />
should have been given a non custodial sentence or the sentence of ten years be reduced to match the mitigating factors.<br />
The State submitted that the sentence was well merited taking into account that the appellant hit the appellant with<br />
an unidentified object in the head causing fatal injuries.<br />
Held;<br />
1.An appeal arising from a plea bargaining agreement had to be considered in the light of sections <strong>13</strong>7A to E of the<br />
Criminal Procedure Code. Section <strong>13</strong>7L (1) provided that “the sentence passed by a court under this part shall be final<br />
and no appeal shall lie therefrom except as to the extent or legality of sentence imposed” The effect of the provision was<br />
that no appeal lay to the Court from the sentencing court which in the case was the superior court except on severity<br />
or legality of the sentence.<br />
2.The restricted right of appeal where a bargain had been struck was to assist in speeding up the process and to<br />
attain finality at the earliest time possible. However, the superior court even after realizing that the plea was based on<br />
a plea bargaining agreement did not consider the mandatory provisions of section <strong>13</strong>7 I (2) of the Criminal Procedure<br />
Code and in particular, the need to take into account a victim impact statement. In our view, such a victim impact<br />
statement would have been necessary because the appellant had alluded to the possibility of assisting the dependants<br />
of the victim since he was a family member. The appellant had stated that the victim was his brother in law and it was<br />
therefore possible that that factor could have resulted in a reduced sentence so as to avail the appellant an opportunity<br />
to assist the victims of the crime.<br />
3.Section <strong>13</strong>7 I and section 329 (c) of the Criminal Procedure Code respectively provided for the factors the Court<br />
was to consider while passing a sentence. However the superior court was not on record as having addressed both<br />
sections <strong>13</strong>7A to N and 329 (c) of the Criminal Procedure Code. Although section 329 (c) gave the court discretion<br />
to consider the appropriateness of a victim’s impact statement, that factor which had a bearing on the severity of the<br />
sentence ought to have been considered.<br />
Appeal allowed sentence reduced to nine years<br />
52 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
David Irungu Muriithi v Republic<br />
Criminal Appeal No. 379 of 2009<br />
Tunoi, Githinji & Onyango Otieno, JJ A<br />
Court of Appeal at Nyeri<br />
November, 2010<br />
By Njeri Githang’a<br />
Case History<br />
(Appeal from a conviction and sentence of the High Court of <strong>Kenya</strong> at Nyeri (Makhandia, J.) dated 29th September,<br />
2009 in H.C.CR.C. No. 2 of 2008)<br />
The Hon. Mr. Justice<br />
E. M. Githinji<br />
Criminal Practice and Procedure - plea bargaining – appellant’s murder charge reduced to<br />
manslaughter after plea bargaining-appellant sentenced to 10 years imprisonment-appeal on the<br />
ground that appellant’s constitutional right under section 72 (3) (b) of the repealed Constitution<br />
had been breached and his mitigating factors had not been considered while sentencing- where<br />
there was no right of appeal against a sentence following a plea bargaining agreement -factors to<br />
be considered by the trial court before sentencing-where the trial court had complied with all the<br />
procedures relating to plea agreements -whether the sentence could be reduced- Criminal Procedure<br />
Code(Cap 75) sections <strong>13</strong>7A to E, Section <strong>13</strong>7L (1) and 329 (c)<br />
The appellant had been charged with murder contrary to section 203 as read with section 204<br />
of the Penal Code. He however entered into a plea agreement pursuant to section <strong>13</strong>7A (1) of the<br />
Criminal Procedure Code whereby the State agreed to reduce the charge to manslaughter and<br />
the appellant on his part agreed to plead guilty to the manslaughter. The trial court accepted<br />
the plea agreement pursuant to section <strong>13</strong>7H of the Criminal Procedure Code and the court entered the factual basis<br />
of the plea on record and proceeded to convict the appellant in compliance with section <strong>13</strong>7 L (1) of the Criminal<br />
Procedure Code. The court invited the parties to address it on the issue of sentencing in accordance with section 216<br />
of the Criminal Procedure Code and upon considering the respective submissions, sentenced the appellant to 10 years<br />
imprisonment.<br />
The appellant appealed against the sentence on the ground that; his mitigation that he was a father of two children<br />
who solely depend on him was not considered and further that the court erred in law in convicting and sentencing him<br />
without considering that his rights under section 72 (3) (b) of the 1963 Constitution had been violated.<br />
Principal State Counsel submitted that the sentence was well merited and the trial Judge had taken into account all<br />
factors; that life was lost over a minor dispute and that the sentence was very lenient.<br />
Held;<br />
1.The ground relating to the breach of constitutional right under section 72 (3) (b) of the repealed Constitution had no<br />
merit because the appellant raised that ground as preliminary objection to the charge and the trial court made a finding<br />
that the constitutional rights of the appellant had not been violated and hence dismissed the preliminary objection.<br />
2.An appeal against conviction was incompetent upon the court convicting and sentencing an appellant pursuant<br />
to a plea agreement under section <strong>13</strong>7L of the Criminal Procedure Code. The section prohibited any appeal except as<br />
to the extent or legality of the sentence imposed. The trial Judge strictly and cautiously complied with the procedure<br />
relating to plea agreements contained in section <strong>13</strong>7A – <strong>13</strong>7 L of the Criminal Procedure Code including taking into<br />
account the stipulated factors before passing the sentence.<br />
Appeal dismissed<br />
Plea bargaining - restricted right of appeal against sentence<br />
High Court’s power of review under Order 44<br />
Aneriko M. Simiyu v Redempta Simati<br />
Civil Appeal No. 227 of 2004<br />
R. S. C. Omolo, D. K. S. Aganyanya, J. G. Nyamu JJA<br />
Court of Appeal at Kisumu<br />
September 24th 2010<br />
By Monica Achode<br />
Case History<br />
Appeal from the ruling of the High Court of <strong>Kenya</strong> at Bungoma (Sergon, J.) dated 23rd July, 2004 in H.C.C.C. No. 94 of 1999<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010 53
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<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
Civil Practice and Procedure – appeal – appeal against a decision review – claims that the court had erred in hearing<br />
a second application for review contrary to the rules of procedure – dispute involving land - manner in which applications<br />
for review ought to be dealt with – whether the review was within the ambit of the review jurisdiction – whether<br />
the appeal had merit - Civil Procedure Rules Order 44.<br />
This was an appeal from the ruling of the superior court whose subject matter was an application for review under Order<br />
44 of the Civil Procedure Rules. In that application the applicant had sought to restrain the appellant from alienating<br />
the suit property known as East Bukusu/South Kanduyi/8051, an order of review to set aside the superior court’s<br />
order of <strong>13</strong>th December, 2001; an order restoring 0.97 Hectares to East Bukusu/South Kanduyi/15 to be excised from<br />
East Bukusu/South Kanduyi/8051 and an order of rectification of the register to reflect the changes. The application<br />
for review resulted in the superior court setting aside the court order and an order the 0.97 hectares of land excised<br />
be restored.<br />
The respondent in a civil suit had sought an eviction order against the appellant from East Bukusu/South Kanduyi/7029.<br />
The presiding magistrate referred the dispute to the Land Disputes Tribunal, Kanduyi. The tribunal made an award in<br />
favour of the deceased’s legal representative against which the appellant filed an appeal in the superior court which in<br />
turn quashed the award. The appellant then subdivided the suit property into three. The un-subdivided parcel namely<br />
bordered parcel No. East Bukusu/South Kanduyi/15 which was registered in the name of the deceased and was not<br />
the subject matter of the case in the magistrate’s court or the land tribunal.<br />
However, through proceedings conducted ex parte, a vesting order in favour of the appellant was made in respect<br />
of East Bukusu/South Kanduyi/15 but the vesting order was subsequently raised or lifted on 24th November, 2000<br />
when the respondent moved to court. The Deputy Registrar of the superior court signed the vesting order and the<br />
Executive Officer of the superior court signed mutation forms excising from East Bukusu/South Kanduyi/15 parcel<br />
of land measuring 0.97 hectares and adding to East Bukusu/South Kanduyi/7029 thereby increasing its acreage to<br />
1.41 hectares.<br />
In the appeal the appellant submitted that the learned Judge, erred in hearing a second application for review contrary<br />
to the provisions of Order 44 of the Civil Procedure Rules and that the effect of the second review amounted in the<br />
court sitting on appeal of a judge of cognate jurisdiction. The appellant further submitted that the delay in bringing<br />
the application for review was inordinate and for this reason the court should not have allowed it.<br />
The respondent on her part submitted that the application which had<br />
resulted in the ex parte order being made had not been served on her but<br />
all the same the court proceeded to issue the orders. She claimed that it<br />
was the un-served application which introduced into the dispute parcel<br />
East Bukusu/South Kanduyi/8051 although it was not part of the tribunals<br />
proceedings and therefore this was also a reviewable error which was<br />
apparent on the face of the record.<br />
Held:<br />
1. What emerged from the combination of the two parcels above was that there was an error on the face of the record<br />
in that the ruling which purported to bring the proceedings of parcel East Bukusu/Kanduyi/15 into the proceedings<br />
of the tribunal and in the magistrate’s court had errors apparent on the face of the record. These errors entitled the<br />
court to exercise its powers of review under Order 44 of the Civil Procedure Rules and the learned Judge could not in<br />
the circumstances be said to have sat on appeal in respect of the ruling of a judge of cognate jurisdiction.<br />
2. The superior court handled the situation admirably in terms of putting to an end what appeared to have been a<br />
suspicious mutation and subdivision which unfortunately involved some court officials when it was clear that such<br />
transactions were ordinarily handled by the Lands office and the survey office. Consequently, the review was within<br />
the ambit of the review jurisdiction.<br />
3. The challenge that the learned Judge could only have acted on the basis of oral evidence instead of relying on<br />
affidavit evidence had no basis in law. Review applications were invariably dealt with by the courts on the basis of<br />
affidavit evidence. In this regard, it was incorrect to state that the court relied on extraneous evidence whereas it was<br />
clear from the record that, the court in reviewing its past decisions relied solely on the record. Again, it could not be<br />
correct that a court of law would be said to be functus officio when moved to correct a mistake or mistakes apparent<br />
on the face of the record because the ultimate result would be injustice.<br />
Appeal dismissed with costs to the respondent.<br />
Advocates:<br />
Mr. Sichangi for the appellant;<br />
Mr. Kibera for the represented<br />
54 <strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — Court of Appeal<br />
<strong>Kenya</strong> Shell Limited v Milkah Kerubo Onkoba<br />
Civil Appeal No. 298 of 2004<br />
S. E.O. Bosire, P. N. Waki, J. D. Nyamu JJ.A<br />
Court of Appeal at Kisumu<br />
September 24, 2010<br />
Reported by Monica Achode<br />
Case History<br />
Appeal from the judgment and decree of the High Court of <strong>Kenya</strong> at Kisii (Wambilyangah, J.) dated 25th September,<br />
2003 in H.C.C.C. No. 369 of 1997<br />
The Hon. Mr.<br />
Justice<br />
S. E. O. Bosire<br />
Negligence: the Rule in Rylands v Fletcher<br />
Civil Practice and Procedure – appeal – appeal against a decision of the court awarding the<br />
respondent damages in a suit for – negligence – where a diesel tank belonging to the appellant<br />
leaked into the respondent’s well – principles established in a claim for damages – defence of Act of<br />
God – duty of the injured party to mitigate the damage - principle of environmental law that the<br />
polluter must pay – whether failure to disclose the specific tort committed was fatal to the claim –<br />
rule in Rylands v Fletcher – whether the facts established the appellant’s liability.<br />
The appellant came to Court of Appeal seeking to appeal the decision of the superior court<br />
holding it liable for contamination of the respondent’s borehole and awarded her a global sum of<br />
Kshs. 600,000/= as general damages. This was after a full hearing where the respondent testified<br />
and the appellant had failed to offer any evidence in rebuttal. The respondent’s case against the<br />
appellant had been that a diesel tank belonging to the appellant leaked into the respondent’s well.<br />
She claimed general and special damages occasioned by the escape of diesel from the appellant’s<br />
tank. The appellant company made efforts to clean her borehole but their effort was unsuccessful<br />
and the water in the well remained unclean for a long time after the leakage. As a result, the appellant made an effort<br />
to supply her with water for two weeks only and thereafter stopped, forcing her to seek an alternative supply at the<br />
rate of Kshs. 800/= per day. She had claimed special damages of Shs. 800/= per day until the date the respondent<br />
would successfully clean the borehole or the appellant would be in a position to sink an alternative borehole for the<br />
respondent. The appellant had denied liability stating that it had been occasioned by an Act of God. The superior court<br />
awarded in favour of the respondent prompting the appeal against the decision.<br />
It was argued by the appellant’s advocate that neither the plaint nor the proceedings disclosed the specific tort which<br />
had been committed by the appellant and consequently the award of general damages was wrongful. Further, it was<br />
stated that the respondent had not proved special damages and the court should not have used the special damages<br />
allegedly incurred per day as a benchmark or the basis for awarding general damages. The advocate further contended<br />
that no evidence was adduced on the inconvenience suffered and that the superior court did shift the burden of proof<br />
to the appellant and that there was no nexus between the alleged damage and the appellant and if there was any such<br />
leakage, it must have been an act of God for which the appellant was not responsible. Finally, the appellant’s counsel<br />
submitted that the respondent had a duty to mitigate any loss and had not done so yet this factor was not taken into<br />
account by the court when awarding damages.<br />
The respondent’s advocate on his part urged the Court to note that the<br />
superior court made a finding on the issue of liability, on the basis of the<br />
evidence adduced by the respondent and two of her witnesses since the<br />
appellant had declined to do so. He also argued that, the fact that the<br />
appellant had tried to clear the borehole after the event was an admission<br />
of liability. He further submitted, that the water from the respondent’s<br />
borehole was analyzed by experts from the <strong>Kenya</strong> Bureau of Standards and<br />
it was confirmed that an underground oil tank had leaked and oil had seeped<br />
into the plaintiff’s borehole<br />
Held:<br />
1. Although there was no dispute on the cost of sinking a new borehole the respondent’s abortive efforts to clean<br />
the borehole confirmed the continuing pollution of the respondent’s land and for this reason, it would not have been<br />
reasonable to expect the respondent to mitigate her loss by sinking a new borehole at that cost until such time that<br />
the appellant would either repair the leak or remove the underground tank.<br />
2. The leak had an environmental dimension in that it was a cardinal principle of environmental law that the polluter<br />
must pay. Viewed from this standpoint, the global amount awarded cushioned the respondent against loss the full extent<br />
of which was not as at the time of hearing ascertainable due to its continuing nature. The respondent had discharged<br />
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her duty to mitigate.<br />
3. On the issue of damages, the averments in the plaint were sufficiently clear to have indicated to the court that the<br />
tort perpetrated was that under the rule in Rylands –vs- Fletcher [1868] LR 3H.L.330. This rule stated that the occupier<br />
of land who brought and kept upon it anything likely to do damage if it escaped was bound at his peril to prevent its<br />
escape, and was liable for all the direct consequences of its escape, even if he had been guilty of no negligence. Therefore<br />
failure by the respondent to specify the actual tort was not fatal to the claim since the particulars given in the plaint<br />
pointed to the tort.<br />
4. Lability had been admitted by the appellant by its conduct and in particular the supply of water for two weeks;<br />
and the unfruitful effort to clean the respondent’s borehole.<br />
Appeal dismissed with costs to the appellant<br />
Advocates:<br />
Mr. Lungaho Siganga for the appellant;<br />
Mr. G. J. M. Masese for the respondent<br />
56 <strong>Issue</strong> <strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — High Court<br />
Sobeth Developers Ltd v South Nyanza Sugar Co. Ltd<br />
Civil Case No. 85 of 2000<br />
High Court at Kisii<br />
A. MAkhandia, J<br />
May 14, 2010<br />
Reporetd by Monica Achode<br />
Arbitration – arbitration award – setting aside of arbitration award – stay of effect of award – grounds of bias – arbitration<br />
being in regard to several suits involving both parties – arbitrator having been agreed upon by both parties – test for bias<br />
in conduct of arbitration proceedings - grounds of setting aside an arbitrator’s award - procedure of moving the court<br />
in such applications - whether the arbitrator misconducted himself in the manner he presided over the arbitration - Civil<br />
Procedure Act (Cap 21) section 3A Arbitration Act (4 of 1995) sections 35, 37 Civil Procedure Rules Order 45 rule 3(1),<br />
15, and 19.<br />
The applicant came to court seeking orders that the arbitration award by the arbitrator be set aside and that any other<br />
consequential orders arising there from be stayed. It was the applicant’s contention that the arbitrator fraudulently<br />
concealed the fact that he was a client and family friend of the defence counsel, a fact which was material to the result<br />
of the arbitration proceedings on the basis of bias.<br />
Further, it was contended for the applicant that the arbitrator misconducted himself by not reading the award and<br />
insisting that his full fees be paid upfront before he could deliver the same. The respondent’s denied the claims of bias<br />
stating that the arbitrator had been agreed upon by both parties. It was their contention that the test for bias had not<br />
been met. The respondent also contended that the application had not been brought properly before the court. The<br />
arbitration proceedings had been in regard to several suits involving both parties. The issue for determination was<br />
whether the arbitrator misconducted himself in the manner he presided over the arbitration proceedings.<br />
Held:<br />
1. There were two essential grounds of setting aside an arbitrator’s award; corruption and misconduct of the arbitrator<br />
and secondly, either party fraudulently concealing any matter which he ought to have disclosed, or willfully misleading<br />
and deceiving the arbitrator.<br />
2. Sections 35 of the Arbitration Act provided for the application for setting aside of the arbitral award and section<br />
37 thereof dealt with grounds for refusal of recognition or enforcement of the award. Considering those provisions of<br />
the application was properly before court.<br />
3. From the time of his appointment up to the end of the arbitration proceedings, the arbitrator was required without<br />
delay to disclose any such circumstances to parties unless the parties already had the information. Failure of disclosure<br />
amounted to misconduct.<br />
4. The question of bias was really a matter of perception. The test for bias as established in Locabail(UK) Ltd V. Bayfield<br />
Properties Ltd & another(200) IALL E.R.65 was that where it was alleged<br />
that there was a real danger or possibility of bias on the part of a judicial<br />
decision-maker, that danger would be eliminated and the possibility<br />
dispelled if it is shown that the judge was unaware of the matter relied<br />
upon as appearing to undermine his impartiality. In contrast, a real danger<br />
of a bias would be thought to arise if there was personal friendship or<br />
animosity between the judge and any member of the public involved in<br />
the case or if the judge was closely acquainted with any member of the<br />
public involved in the case.<br />
Application allowed.<br />
Advocates:<br />
Mr. Oduk for the applicant;<br />
Mr. Makori for the respondent<br />
Procedure for setting aside arbitration award on grounds of bias<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
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<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — High Court<br />
Service of Election Petitions. Liability of election body for the acts of a Returning Officer<br />
Dickson Daniel Karaba v John Ngata Kariuki & another [2010] eKLR<br />
Election Petition No. 3 of 2008<br />
High Court at Nairobi<br />
M Warsame J<br />
May 21, 2010<br />
Reported By Njeri Githang’a<br />
Election Petition – service – service of process – application to strike out an election petition on the grounds that it had<br />
not been served on the 2nd respondent within twenty eight days after the publication of the results as required by law<br />
- affidavit of service of the process server silent on service upon the 2nd respondent – application opposed – claim that<br />
due diligence was exercised in the service of the election petition –whether the 2nd respondent was duly served with the<br />
election petition in accordance with the law – National Assembly and Presidential Elections Act (Cap 7) Section 20(1) (a)<br />
(iv) - National Assembly (Election Petition Rules) rule 14 (1).<br />
Election Petition – service- definition and purpose of service – where personal service was the best mode of service<br />
– whether personal service could have been inferred in the circumstances – whether the application was incompetent<br />
-National Assembly and Presidential Elections Act (Cap 7) Section 20(1) (a) (iv).<br />
Agency – principal and agent – relationship between a returning officer and the Electoral body- where one is deemed an<br />
agent if he acts for another or by operation of the law–presumption in law that a statutory body appointed responsible,<br />
knowledgeable and honest officers in performance of its Constitutional mandate – mandate of the 2nd respondent in<br />
carrying out elections in Kirinyaga Central Constituency - duty of the 3rd respondent to be responsible for the negligence,<br />
want of care and failure to conduct and conclude free and fair elections of the 2nd respondent unless there was evidence<br />
of malpractices for the benefit of the 2nd respondent-whether the 3rd respondent was liable for the acts and omissions of<br />
the 2nd respondent – Constitution of <strong>Kenya</strong>, section 41.<br />
Estoppel - equitable estoppel -estoppel by conduct-second respondent having submitted himself to court without filing<br />
any documents under protest-notice of instruction and appointment filed o behalf of the 2nd respondent-applicant having<br />
entered an unconditional appearance in proceedings in court-whether that waived any irregularities-where there was<br />
delay of 40 days in bringing the application-whether that estopped the 2nd respondent from challenging service.<br />
Civil Practice and Procedure - striking out of pleadings-striking out an election petition for want of service-where<br />
striking out of a petition on irregularity amounted to a denial of a fundamental right of equality before the law-where<br />
it was a general rule of law founded on public policy that matters before the court had to be determined on substantive<br />
merit without undue regard to technicalities or procedure - where striking out of pleadings was drastic and draconian<br />
which could only be resorted when the jurisdiction of the court had been properly invoked - whether the failure to serve<br />
the petition personally could entitle the petitioner to seek and obtain final or interlocutory judgment.<br />
Statutes – interpretation of statutes-where the rules governing election petitions made no provisions for personal service<br />
or non service- section 22 (22(a) (Cap 7) providing that petitions would only be summarily rejected where there was no<br />
sufficient grounds to grant reliefs sought-“Sufficient grounds” not to be curtailed by placing a limited interpretation upon<br />
its meaning-duty of the court to give an intelligent interpretation to the legislation, and not to construe it, in a manner<br />
which would imply to it, a meaning not expressly provided for -whether the repetitive or continuous use of a particular<br />
procedure gave the court authority to strike out a petition when the law did not provide for that procedure- National<br />
Assembly and Presidential Elections Act (Cap 7) Section 22(a).<br />
Jurisdiction - jurisdiction of the High Court-where the High Court enjoyed unrestricted and unlimited powers in all<br />
matters of substantive law, concerning the general administration of justice in order to fulfill, properly and effectively its<br />
role as a court of law- duty of the High Court to ensure strict compliance with the relevant provisions of the law- where<br />
the National Assembly and Presidential Elections Act and the rules there under did not provide for striking out an election<br />
petition- whether the court had the jurisdiction to strike out the petition-Constitution of <strong>Kenya</strong>, section 60(1).<br />
The applicant, the returning officer in the Kirinyaga Central Constituency in the 2007 parliamentary elections, sought to<br />
strike out an election petition on the ground that he had not been served with the petition within the period prescribed<br />
by law. It was the applicant’s case that no personal service was effected on him as prescribed by section 20 (1) (a) of<br />
the National Assembly and Presidential Elections Act and Rule 14 (1) of the National Assembly (Election Petition Rules).<br />
The petitioner opposed the application and relied on an affidavit of service sworn by the process server. The process<br />
server had narrated the chain of events that led him to affix the copy of the petition on the house at Kihuyo village.<br />
He explained that because the applicant had not given his physical address, he made inquiries from Nyeri the Interim<br />
Independent Electoral Commission (IIEC) office and later from the locals about the location of the second respondent’s<br />
house. He chose to affix the petition after several futile attempts to locate and serve the second respondent. It was<br />
hence contended that although no personal service was effected, it could be inferred from the circumstances in the case.<br />
58 <strong>Issue</strong> <strong>13</strong>: July-December 2010
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<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — High Court<br />
Held:<br />
1. The purpose of service was to bring to the knowledge or attention of a litigant that there was a cause of action or<br />
proceedings in which he was concerned and in the same breadth, he was warned of some step or action which could be<br />
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<br />
by the rules of the court to bring documents filed in court to an individual’s attention.<br />
2. Personal service remained the best form of service in all areas of litigation however, where it was not possible,<br />
other forms could be resorted to. The law required the petitioner to demonstrate to the court’s satisfaction that he<br />
made efforts to effect service but the effort did not bear fruits.<br />
3. The 2nd respondent discharged his duties in consultation, coordination and under the direction of the Electoral<br />
Commission of <strong>Kenya</strong> (ECK). The court was capable of looking at the allegations against the 2nd respondent not<br />
in respect of any willful misconduct that could attract personal liabilities or retribution but which could amount to<br />
possible impropriety into the way the election process took place in the constituency and whether the defunct ECK<br />
carried out its functions and duties competently, fairly and freely and on the same breadth determine the extent of<br />
any allegations and whether it was true or credible. In determining that task the court had to ensure the right parties<br />
were before court and the parties were rightly served.<br />
4. The primary duty of an agent was to carry out, the business he had undertaken and the rights of an agent flow from<br />
the principal as representative and acting on his behalf and is therefore entitled to be indemnified for such liabilities<br />
incurred and losses suffered as were in contemplation when the agency was undertaken. As a general rule, a principal<br />
was responsible for all the acts of his agents within the authority of the agent.<br />
5. An employer was vicariously liable or responsible for the negligence of his employee in the course of his employment.<br />
In certain circumstances, he could incur responsibilities by reason of their acts or omissions. The Returning officer<br />
in an election was given definite instructions as to the manner in which the election had to be conducted. He had to<br />
follow the instructions given clearly and strictly, provided they were lawful. He had no discretion to disregard the<br />
instructions given and in that regard he had to exercise care, skill and diligence. In essence he was not required to go<br />
beyond his reasonable and expected duty.<br />
6. Applying the principles of vicarious liabilities and principal/agent meant that the 3rd respondent was likely<br />
to be responsible for the negligence, want of care and failure to conduct and conclude free and fair elections of the<br />
2nd respondent unless there was evidence that the malpractices alleged by the petitioner was for the benefit of the<br />
returning officer.<br />
7. The 3rd respondent could not escape liability for the conduct of the election officials; hence the absence or the<br />
inclusion of the 2nd respondent in the petition was immaterial. There existed a relationship of master and servant<br />
between the 2nd and the 3rd respondents and the absence of the returning officer as a party was not fatal to a petition<br />
filed by an aggrieved party.<br />
8. An election petition was not about the returning officer but the wholesome process of the electoral process<br />
conducted by the election authority. If the election body felt that the presence or the omission of the returning officer<br />
was fundamental to its case, then it could make the relevant application before court for that party to be enjoined in<br />
the proceedings. A returning officer was not a party who was necessary in the effectual and complete determination<br />
of a petition filed by aggrieved party.<br />
9. Rule 10 of the Election Petition Rules did not compel a Returning Officer to supply his personal or physical address<br />
to the ECK offices, it was hence practically impossible in the circumstances to trace the Returning Officer’s residence<br />
since he was not a man who can be said was a prominent individual within Kirinyaga or Nyeri Districts.<br />
10 The application by the 2nd respondent was incompetent and an abuse of the court process as the basis of the<br />
application was whether the petition was properly served or not. The only way to know whether a particular document<br />
was served personally or otherwise was possession of evidence or facts alleging that the said person was served. The<br />
application was based on a different affidavit of service while the 2nd respondent was complaining that he was not<br />
personally or otherwise served.<br />
11. Admittedly, the 2nd respondent had not been personally served but he filed notice of appointment on January<br />
23, 2008 and he submitted himself before the court. A party who submitted himself before court and who had not<br />
filed, any documents under protest could not seek the striking out of a matter in which he submitted himself without<br />
any protestation.<br />
12. It was a general rule of law founded on public policy and recognized by parliament that litigation or matters filed<br />
before court had to be determined on substantive merit without undue regard to technicalities or procedure. Section<br />
23 (1) (d) of Cap 7 was a clear manifestation in that regard. It was unduly oppressive and disproportionate to strike<br />
out a cause of action on allegation of personal service. In that regard, disposal of proceedings without trial had to<br />
achieve the ends of justice.<br />
<strong>13</strong>. Where a party entered an unconditional appearance to an action, it was regarded as an act which waived any<br />
irregularities. There was no specific provision in the Act and the Rules for conditional appearance. However it had<br />
been the practice where appropriate to enter a conditional appearance.<br />
14. The 2nd respondent acknowledged service by instructing his advocates to file notice of appointment on January<br />
23, 2008. An acknowledgement of service could only be amended or withdrawn with the leave and permission of<br />
the court. The 2nd respondent had not sought leave of the court to file the application, after filing an unconditional<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
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<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — High Court<br />
appearance and participating in the proceedings before court.<br />
15. A further aspect of the 2nd respondent’s conduct as constituting evidence of waiver was the great delay in bringing<br />
the application in question. It had been brought 40 days after the filing of an unconditional notice of appointment on<br />
behalf of the 2nd and 3rd respondents. Although no time limit was prescribed for the bringing of such an application,<br />
it was inherent in the obligation attaching to a party seeking a relief of that nature to ensure that there was prompt<br />
and quick resolve in pursuing what he felt was a defence or a point of attack.<br />
16. The statute and the rules governing the election petitions made no provision or gave no step to be taken by the<br />
failure of the petitioner to serve personally or in cases where the respondent raised an issue of personal service or<br />
non service. In essence there was no step that could be taken against the respondent other than setting the petition<br />
for hearing. Where a party filed an unconditional notice of appointment and there being no evidence that he had<br />
suffered any prejudice, injury or damage, he could not be heard to question the mode of service that was used by the<br />
petitioner in serving the petition.<br />
17. The failure to serve the petition personally or otherwise, could not entitle the petitioner to seek and obtain final<br />
or interlocutory judgment. The entry of an unconditional appearance waived any irregularities in the service against<br />
the 2nd respondent. Matters of procedures (service) were not normally of a fundamental nature to defeat the case of<br />
a party seeking justice for disclosed grievances.<br />
18. The notice of instruction and notice of appointment filed on behalf of the 2nd and 3rd respondents created the<br />
unqualified presumption in favour of the petitioner that the petition was properly served by use of the correct means<br />
and mode. The 2nd respondent could not contradict his principal and the advocate on record by stating that he was<br />
not personally served and that the petition came to his knowledge on February 4, 2008. A party could not be allowed<br />
to benefit from his own wrong or from his own contradiction.<br />
19. The only time a respondent could challenge service was when it was served outside the mandatory 28 days. An<br />
individual was entitled to fundamental justice in the adjudication of his/her case on merit. That was a right not a<br />
privilege accorded by courts. Striking of a petition on an irregularity amounted to a denial of a fundamental right of<br />
equality before the law. In any case there was no direct link or connection between personal service and striking out<br />
of a petition where a party seeking the orders was before court having suffered no injury or was unlikely to suffer any<br />
damage.<br />
20. Allowing an application for striking out a petition on personal service was reverse or narrow focus or reactionary<br />
and/or retrogressive jurisprudence developed by the courts. Its principles and underlying premises were not so firmly<br />
entrenched in the statute and it was not so fundamentally sound to acquire precedence status.<br />
21. The defect of which the 2nd respondent complained in regard to the service of the petition constituted an<br />
irregularity capable of being waived.<br />
22. According to section 22(a) a petition could only be rejected summarily if the court considered that there was<br />
no sufficient grounds for granting the relief claimed as disclosed in the petition. “Sufficient grounds” were not to be<br />
curtailed by placing a limited interpretation upon its meaning or by reading into it, the requirement of striking out<br />
the whole petition. No limitation could be prescribed to say what particular set of circumstances would constitute<br />
sufficient grounds. If the court was to give an intelligent interpretation to the legislation, and not to construe it, in<br />
a manner which would imply to it, a meaning not expressly provided for. The words ‘no sufficient ground’ had be<br />
considered separately and independently from the issue of personal service or non-service at all.<br />
23. Section 22(a) of Cap 7 was equivalent to Order 6 Rule <strong>13</strong> which clearly spelt out when a cause of action could be<br />
struck out. Where a statute confered a jurisdiction upon a court, unless the exercise of such jurisdiction was made<br />
conditional upon rules of the court first being made, the fact that no rules had been made regulating the procedure did<br />
not prevent the jurisdiction from being exercised. Habitual, repetitive or continuous use of a particular procedure did<br />
not give the court authority to strike out a petition when the law did not provide for that procedure.<br />
24. It was the responsibility of the High Court to ensure strict compliance with the relevant provisions of the law.<br />
It could be easily demonstrated that the court exercised powers donated by a particular statute in addressing and<br />
answering a question put to it or placed before it for answers. In answering questions put before court, the court had<br />
to be clothed with proper jurisdiction.<br />
25. The High court enjoyed unrestricted and unlimited powers in all matters of substantive law, concerning the general<br />
administration of justice in order to fulfill, properly and effectively its role as a court of law. However, the overriding<br />
features of justice were that it must not only be done but it must be seen to be done. In all the circumstances before<br />
the High court where petitions had been struck out, the parties seeking the intervention of High Court were before<br />
court but alleged procedural issues of personal service or non-service at all. Where a statute conferred a jurisdiction<br />
upon a court, then unless the exercise of such jurisdiction was made conditional upon the rules of the court first being<br />
met, the fact no rules had been made regulating the procedure did not prevent the court from addressing its mind to<br />
the issue of substantive justice.<br />
26. The court has no jurisdiction to strike out a petition because of personal service or non-service at all. The court<br />
also had no jurisdiction to strike out a petition on the grounds that it was served outside the mandatory 28 provided<br />
there were sufficient reasons for doing so. In civil proceedings, the summons could be extended or enlarged even after<br />
1 year and up to 2 years depending on the circumstances. The provision limiting the time of service to 28 days was<br />
discriminatory and did not support the principle of equality before the law.<br />
60 <strong>Issue</strong> <strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — High Court<br />
27. The court’s mandate was to determine what was the proper construction of sections 20(1) (a), 22(a), 23(1) (d)<br />
of Cap 7 was and it was no concern to the court whether a particular mode of service was the best or not. Legislative<br />
would have expanded the scope and application of section 20(1) (a), thereby enlarging the court’s jurisdiction to<br />
grant the relief of striking out a petition for non service or personal service. The absence did not necessarily connote<br />
impediment, disability, void or vacuum preventing a petition from proceeding to full hearing if no personal service<br />
existed. Any statement to the contrary was an incorrect statement of law and could not be followed.<br />
28. Striking out of pleadings was drastic and draconian which could only be resorted to when the jurisdiction of the<br />
court had been properly invoked. Where the statute and rules granting the court jurisdiction, did not permit such a<br />
route, the court had no powers to do so.<br />
29. Under section 82(1) of the Constitution, provided that no law would make any provision that was discriminatory<br />
either itself or in its effect. The law did not allow affording different treatment to different persons attributable wholly<br />
or mainly to their positions. The striking out of a petition mainly on issue of personal service or non-service when the<br />
party alleging such defect was before court, was in violation of the Constitution. Where the law did not impose a duty<br />
or an obligation upon a party it could not be inferred or imported that it was intended. The law never implied and the<br />
court never presumed unless there was an absolute necessity to do so.<br />
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<br />
a duty on the petitioner to personally serve the respondent. The failure by the petitioner to personally serve the 2nd<br />
respondent would not and could not render the whole petition invalid so long as the respondent was made aware and<br />
was properly before court having suffered no prejudice.<br />
31. The National Assembly and Presidential Elections Act Cap 7 and the rules made thereunder, did not provide for<br />
striking out an election petition, and in the absence of an express power to strike out a pleading, the court could only<br />
invoke its inherent power prescribed under section 60(1) of the Constitution.<br />
32. The court could not exercise its inherent jurisdiction, when the exercise would lead to an injustice. The inherent<br />
jurisdiction of the court enabled it to exercise control over process by regulating its proceedings by preventing the abuse<br />
of the process. It was not intended to displace a party of his matured right which was likely to result in an injustice.<br />
33. Striking out of a petition was outside the inherent jurisdiction of the High Court and it could not be exercised to<br />
aid a party who had not suffered any prejudice or injustice due to the acts or omission of another party.<br />
Application dismissed<br />
Advocates:<br />
Mr. Wamae for the Petitioner<br />
Mr. Arusei for the 2nd Respondent<br />
Carriage by road - carries duty of care<br />
Kingsway Motors Limited v Corner Garage Transport Limited<br />
Civil Suit No <strong>13</strong>90 of 1999<br />
High Court, at Nairobi.<br />
Justice P. Kihara Kariuki<br />
June 3, 2010<br />
Reported by Cornelius W. Lupao<br />
Contract-contract for transportation of goods-where transporter (common carrier ) inserts an exclusion clause in the<br />
contract exempting it from liability arising from damage to the goods transported-whether such an exclusion clause can<br />
exempt the transporter from the liability arising from damage occasioned to the goods transported-meaning of common<br />
carrier.<br />
The plaintiff, Kingsway Motors Ltd, alleged that it had consigned five units of cars to the defendant to transport to Nairobi<br />
by road. The said cars were allegedly damaged while being transported by the defendants. Consequently, the plaintiff<br />
argued, the transporter was under a duty to deliver the goods to Nairobi undamaged or in the condition in which they<br />
were handed over to them (defendant) at the Port of Mombasa. In its defence, the transporter, argued that the goods<br />
were carried at the owner’s risk, and therefore as a transporter, it was exempt from liability as far as the damage to<br />
the goods was concerned.While making his submissions, counsel for the plaintiff submitted that although on the face<br />
of the Delivery Note it was stated that the goods were to be transported “at owners risk” and that the vehicles were to<br />
be transported subject to the transporter’s conditions of carriage, that alone could not absolve the transporter from<br />
liability in the event of loss of or damage to the goods. This, Kingsway further argued, was because, in law, as a bailee<br />
for reward or a common carrier, the transporter was under a duty to safely and securely deliver the goods entrusted<br />
to it to the designated destination. Moreover, Kingsway submitted that the declaration that the goods were carried at<br />
the risk of the owner and on the transporter’s terms and conditions of carriage could not exempt the transporter from<br />
liability where loss or damage was caused by negligence on the part of the transporter or its servants. Kingsway was<br />
of the opinion that the fact that it had successfully made a claim for compensation for the damage from its insurers did<br />
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<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — High Court<br />
not prevent it from recovering damages against the transporter in what in insurance law is known as a subrogatory suit.<br />
Kingsway also pointed out that apart from relying on the exemption printed on the Delivery Note, the transporter had<br />
made no attempt to place before the court evidence to show that the accident which had resulted in the damage to the<br />
goods was not caused by negligence on its part or on the part of its employee for which , it would be vicariously liable.<br />
On its part, the transporter submitted that it was fully exempted from any<br />
liability by virtue of the notice that the goods were to be carried at the<br />
owner’s risk and the express stipulation that they were to be transported<br />
subject to the transporter’s terms and conditions of carriage regardless of<br />
whether the loss or damage was caused by negligence on its part or not.<br />
Indeed, one of the terms in the conditions of carriage stated that the company<br />
was not to be liable for ‘loss, damage, deviation, mis-delivery, delay or<br />
detention of or to a consignment or any part thereof or to any goods whether<br />
or not such loss, damage, deviation, mis-delivery, delay or detention was<br />
caused by or through or due to the negligence of the Company or its servants<br />
or otherwise’. It was also submitted that since the transporter was a common carrier, it could exempt itself from liability<br />
even in a case where negligence was alleged or even proved.<br />
Held:<br />
1.The exemption clause in the transporter’s terms and condictions of carriage was an unfair term as it virtually gave<br />
it an open license to steal or damage its client’s goods with impunity and without right of recourse.<br />
2.Whether as a common carrier or bailee for reward, the transpoter was under a duty to transport the goods in a<br />
secure condition and to deliver them to the Plaintiff at the agreed destination.<br />
Advocates:<br />
Mr. Mansur Satchu for the Defendant<br />
Mr. Satchu and Mr. Luseno for the Third Party.<br />
The Hon. Lady. Justice<br />
M Okwengu J<br />
State liability for torture and inhuman and degrading treatment<br />
Harun Thungu Wakaba and 20 others v The Attorney General [2010]<br />
Misc.Appl. No. 1411(OS) of 2004 (consolidated)<br />
High Court of <strong>Kenya</strong> at Nairobi<br />
H. M. Okwengu J.<br />
July 21, 2010<br />
Reported by Njeri Githang’a<br />
Constitutional <strong>Law</strong> - fundamental rights and freedoms-protection against torture or inhuman<br />
treatment -claim that the plaintiffs had been subjected to interrogation and various acts of torture,<br />
inhuman and degrading treatments– sufficiency of facts- where the pleadings were supported by<br />
evidence -whether there was breach of the plaintiffs’ rights- Constitution of <strong>Kenya</strong> Sections 70,<br />
72(3 & 5), 74(1), 77, 78(1) and79 (1) - the Universal Declaration of Human Rights, Article 5.<br />
Constitutional <strong>Law</strong> - fundamental right and freedoms-limitation period-time within which to seek<br />
redress for breach of the rights- -limitation provisions under the Public Authorities Limitations Act<br />
– where there was no limitation under the Constitution -whether the Public Authorities Limitations<br />
Act could override the Constitution and be used to curtail rights provided under the Constitution-<br />
Constitution of <strong>Kenya</strong> section 3, Public Authorities Limitations Act.<br />
Constitutional <strong>Law</strong> - jurisdiction-jurisdiction of the High Court to deal with the issue of violation<br />
of constitutional rights-claim that the Truth, Justice and Reconciliation Commission (TJRC) could<br />
deal with the issue- where the Act establishing the Commission had come into effect after the<br />
plaintiffs had filed their suits- whether the court had the mandate to deal with the plaintiffs’<br />
claims - Constitution of <strong>Kenya</strong> Section 84 .<br />
Constitutional <strong>Law</strong> - fundamental rights and freedoms- breach of -award of damages-quantum of damages-whether<br />
the court could award general damages .<br />
The plaintiffs who had been victims of the ‘Nyayo House Torture Chambers’, had each filed suits against the Attorney<br />
General seeking for compensation for breach of their fundamental rights and freedoms under sections 70, 72(3 & 5),<br />
74(1), 77, 78(1), 79(1) & 80(1), 82(3) of the Constitution of <strong>Kenya</strong>.<br />
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<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — High Court<br />
The complaints were that each plaintiff was arrested individually on a particular<br />
date, taken to a police station and thereafter to the Nyayo House Basement where<br />
each was held incommunicado in a completely dark cell. Each of the plaintiffs was<br />
subjected to interrogation and various acts of torture, inhuman and degrading<br />
treatments at the Nyayo House. After being held for a number of days, most of the<br />
plaintiffs were charged in court, several with treason offences and others with some<br />
minor offences. The plaintiffs complained of having suffered physical and<br />
psychological torture, and also having suffered loss and damage as a result of the<br />
incarceration.<br />
In objecting to the claim, the State submitted that the facts sworn to by the plaintiffs in their affidavits did not disclose<br />
the full facts and therefore the matter was not properly before the Court. It was further submitted that the matter<br />
complained of, could be adequately adjudicated upon by the Truth, Justice, and Reconciliation Commission (TJRC).<br />
The State reiterated that in enacting the TJRC Act, Parliament was concerned that some of the transgressions against<br />
the country and its people could not be properly addressed by the judicial institutions due to procedural and other<br />
hindrances and that this constituted such a case.<br />
It was also argued that the plaintiffs had filed their suits out of time. It was further argued that the claims filed by the<br />
plaintiffs offended Section 3 of the Public Authorities Limitation Act, as the same ought to have been brought within<br />
one year. Finally, the State submitted that fundamental rights or human rights, were not absolute, but were subject to<br />
the rights of others and the society.<br />
Held:<br />
1. The plaintiffs had given sufficient particulars of their arrest and confinement, and where applicable arraignment<br />
in court. The particulars given were hence sufficient to enable the defendant to know the nature hence the plaintiffs’<br />
claims were properly before the court.<br />
2. Although it was important to bring proceedings to court as early as possible in order that reliable evidence be brought<br />
to court for proper adjudication, there was no limitation period for seeking redress for violation of the fundamental<br />
rights and freedoms of the individual under the Constitution of <strong>Kenya</strong>.<br />
3. Section 74(1) of the Constitution was identical to Article 5 of the Universal Declaration of Human Rights which<br />
had also been ratified by <strong>Kenya</strong> on its definition of ‘torture’.<br />
4. The facts of the case showed that there was actual infliction of severe physical pain, caused by physical assault thus<br />
all the ingredients of the definition of torture were present.<br />
5. The actions described in the affidavits constituted infringement of the right to protection against inhuman treatment<br />
as provided under Section 74(1) of the Constitution.<br />
6. The Truth, Justice and Reconciliation Commission (TJRC), had come into effect after the plaintiffs had filed their<br />
suits. The Act did not make any provision for dealing with matters which were already before the court. Secondly,<br />
the plaintiffs had come to the court seeking declaratory relief and monetary redress for violation of their fundamental<br />
rights and freedoms under the Constitution. The mandate of the court to deal with the plaintiffs’ claims was provided<br />
under Section 84 of the Constitution which was the supreme law of the country.<br />
7. The court had the powers to award damages to an individual whose fundamental rights and freedoms had been<br />
violated in exercise of its jurisdiction under Section 84 of the Constitution. However, it was not be possible to value<br />
or measure in monetary terms what an individual had undergone through violation of his fundamental rights. In the<br />
circumstances of the case, it was appropriate to make a global award in respect of the violations, taking into account<br />
the element of punitive damages and in doing so, the rights violated and the period of violations was relevant.<br />
8. Offences such as treason and being members of an unlawful society were serious offences which the government<br />
through its law enforcement agencies had the responsibility to investigate, carry out arrests and where appropriate,<br />
arraign the perpetrators of the offences in court. Nonetheless, the exercise of these responsibilities, particularly by<br />
law enforcement agencies, had to be carried out within the confines of the law.<br />
Petition allowed, a total sum of Kshs. 39.2million awarded to all the plaintiffs the highest being KShs. 3 million and the<br />
least being Kshs.1 million.<br />
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From the Courts — High Court<br />
Salina Soote Rotich v Caroline Cheptoo & 2 Others<br />
Civil Appeal No. 48 of 2010<br />
High Court at Eldoret<br />
P.M Mwilu. J<br />
July 28,2010<br />
Reported by Andrew Halonyere<br />
Customary <strong>Law</strong> – burial dispute – Keiyo customary law in regard to burial – claim that the deceased subjected himself<br />
to Keiyo customs –whether he was bound by the said customs –whether Keiyo customs was repugnant to justice and<br />
morality.<br />
Interpretation of Statutes – interpretation of section 2 of the Magistrate’s Court Act - whether the provisions of the said<br />
section excluded customary burials from matters that the Magistrate’s Court had jurisdiction to hear and determine –<br />
Judicature Act (Cap 8) section 3(2) – Magistrate’s Court Act (Cap 10) sections 2,9.<br />
The appellant brought a suit against the respondents before the Chief Magistrate’s Court in Eldoret seeking an order to<br />
inter the remains of her deceased son, simultaneously with filing the suit she filed an application pursuant to section<br />
3(2) of the Judicature Act (Cap 8) , section 9 of the Magistrate’s Act (Cap 10) and sections 3, 3A of the Civil Procedure<br />
Act (Cap 21) and order 39 rules 1,2 and 3 of the Civil Procedure Rules, seeking orders for exhumation of the body<br />
and preservation until determination of the suit. The Magistrate’s Court granted the orders pending determination<br />
of an appeal. The Magistrate’s Court having heard the suit ordered that the remains of the deceased be released to<br />
the deceased father and the first respondent (deceased daughter) for burial and that the appellant (mother to the<br />
deceased) and other family members were to be involved in the burial arrangements if they so wished. The appellant<br />
was dissatisfied with the decision hence the appeal.<br />
The issues for determination before the High Court were whether Keiyo customary law with regard to burial was<br />
pleaded and proved and whether the deceased was subject to such custom.<br />
The High Court suo motu raised the issue of whether the provisions of section 3(2) of the judicature Act (Cap 8) as<br />
read with section 2 of the Magistrate’s Court Act (Cap 10) donated to the Magistrate’s Court jurisdiction to determine<br />
customary law burial disputes.<br />
Held:<br />
1. The deceased was a Keiyo who had subjected himself to the customs of his father and forefathers and who became<br />
incapable of divesting himself from the customs of his people. He was for all practical purposes bound by those customs.<br />
Keiyo customs with regard to burial were not repugnant to justice and morality and they were not inconsistent with<br />
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<br />
was a taboo for the Keiyo community.<br />
2. Section 2 of the Magistrate’s Court Act (Cap 10) provided that unless the context otherwise required, a claim under<br />
customary law meant a claim concerning any of the following matters under African customary law, Land held under<br />
customary tenure, marriage, divorce, maintenance or dowry, seduction or pregnancy of an unmarried woman or girl,<br />
enticement of or adultery with a married woman, matters affecting status, and in particular the status of women widows<br />
and children, including guardianship, custody, adoption and legitimacy and Intestate succession and administration<br />
of intestate estates so far as not governed by any written law . Those provisions clearly excluded customary burials<br />
from matters that the Magistrate’s Court had jurisdiction to hear and determine. The word “means” appearing at the<br />
definition part of section 2 of the Magistrate’s Act (Cap 10) was inclusive and excluded all matters not mentioned<br />
therein, therefore the Magistrate’s Court had no jurisdiction to hear and determine the case, such jurisdiction rested<br />
with the High Court which had unlimited original jurisdiction in civil and criminal matters and such other jurisdiction<br />
and powers as would be conferred on it by the constitution or any other law.<br />
3. Obiter “Whilst appreciating the role Christianity has played in affecting customs to the extent that some customs<br />
have indeed been disregarded, some modified and others changed, Christianity has not totally eradicated customs and<br />
it is unlikely to do that any time soon, if ever. There are good customs and there is always a purpose for the practice<br />
of a custom”.<br />
4. Obiter “It is now urgent and opportune, in my humble view, that parliament does consider it a matter of priority<br />
to legislate a law governing burials in this country, a law applicable to all the people of <strong>Kenya</strong>. This, once done, will<br />
bring uniformity in burials amongst the people of <strong>Kenya</strong> and ease the work of the courts. May that time come soon.”<br />
Appeal succeeds, the remains of the deceased was to be released to the appellant for burial in accordance with Keiyo<br />
Customary <strong>Law</strong>.<br />
Application allowed.<br />
Advocates<br />
Mr. Nabasenge – Advocate for Appellant<br />
Mr. Omusundi - Advocate for Respondent.<br />
Customary law – Burial customs of the Keiyo<br />
64 <strong>Issue</strong> <strong>13</strong>: July-December 2010
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From the Courts — High Court<br />
Election petition - Jurisdiction of election court<br />
William Maina Kamanda v Maragaret Wanjiru Kariuki & 2 others<br />
Election Petition No 5 of 2008<br />
High Court at Nairobi<br />
P.Kihara Kariuki J<br />
July 30, 2010<br />
Reported By Emma Kinya<br />
Election Petition – declaration - application brought by the petitioner seeking to be declared the member of parliament<br />
for Starehe Constituency – where the petitioner had earlier on filed an election petition that sought to nullify the election<br />
of the 1st respondent as a Member of Parliament – allegations that the parliamentary and presidential elections were<br />
flawed and tainted with illegality – whether the election was conducted in accordance with the law – whether the<br />
petitioner could be declared as the Member of Parliament for starehe Constituency in place of the 1st respondent –<br />
Section 44(1)(a)Constitution of <strong>Kenya</strong>; Section 30(1) National Assembly and Presidential Elections Act; Rule 4(3) & (7)<br />
of the National Assembly and Presidential Elections(election Petition) Rules<br />
The petitioner filed an election petition where he raised several complaints against the respondents among them, that<br />
he garnered the highest number of valid votes cast yet the Returning Officer had declared the 1st respondent who had<br />
received fewer votes as the winner; that the Returning Officer had not announced all the results of the parliamentary<br />
candidates; that the statutory forms had not been duly signed by the presiding Officers or their deputies to authenticate<br />
the accuracy of the results and that they were also not signed by the agents of the candidates as required by law.<br />
The petitioner averred that there had been non compliance with the Constitution, National Assembly and Presidential<br />
Elections Act (NAPE) and the Election Offences Act and further, that the difference between the total votes cast for the<br />
Parliamentary elections and the Presidential elections was prima facie evidence of a flawed Parliamentary election. He<br />
relied on that ground to apply for scrutiny and recount of the votes cast which was allowed by High Court.<br />
The petitioner also alleged that the results that he received from his agents indicated that he had won Parliamentary<br />
elections in the constituency against the 1st respondent. He further stated that the 1st respondent was captured on<br />
camera two days after the election complaining that the Parliamentary elections had been rigged. According to him,<br />
the tallying process of the votes cast in starehe constituency was flawed and tainted with illegality and therefore had<br />
to be declared null and void. It is for these reasons that the petitioner brought the above application seeking to be<br />
declared the Member of Parliament for Starehe Constituency in place of the 1st respondent.<br />
However, the 1st respondent denied the allegations made against her. The issues<br />
before court were whether the 1st respondent was validly elected as the Member of<br />
Parliament for Starehe Constituency and whether the court had the jurisdiction to<br />
declare the petitioner as the Member of Parliament for Starehe Constituency in place<br />
of the 1st respondent.<br />
Held:<br />
1.The jurisdiction of the petition court was limited to determining only the question whether the person had been<br />
validly elected as a member of the National Assembly and that could only have related to a sitting member who was<br />
declared by a Returning Officer at an election as having been elected. There was no other question contemplated by<br />
Section 44(1) (a) of the Constitution of <strong>Kenya</strong>.<br />
2.The 1st respondent had not been validly elected as the Member of Parliament for the Starehe Constituency and<br />
therefore, her election was declared null and void.<br />
3.No credible evidence was produced to support the allegations of electoral offences alleged to take place during the<br />
voting and tallying process.<br />
Petition allowed<br />
<strong>Issue</strong> <strong>13</strong>: July-December 2010<br />
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<strong>Bench</strong> <strong>Bulletin</strong><br />
From the Courts — High Court<br />
High Court’s jurisdiction over cases relating to the constitution review process<br />
Mary Ariviza v Interim Independent Electoral Commission of <strong>Kenya</strong> & another [2010] eKLR<br />
Misc. Civil Application No. 273 of 2010<br />
High Court at Nairobi<br />
Okwengu J<br />
August 24, 2010<br />
Reported By Njeri Githang’a<br />
Judicial Review - certiorari-application to quash a gazette notice on referendum results-application on the ground they<br />
were not published according to the law-prayer to prohibit the promulgation of the proposed Constitution of <strong>Kenya</strong>whether<br />
the court could grant the orders sought.<br />
Jurisdiction - Jurisdiction of the High Court- matters arising from the Constitutional review process –original jurisdiction<br />
on matters arising out of the Constitutional Review process vested on the Interim Independent Constitutional Dispute<br />
Resolution Court (IICDRC) –whether the special jurisdiction of the High Court to determine matters of judicial review<br />
conferred under the <strong>Law</strong> Reform Act was limited- where the applicant’s complaint related to the management of the<br />
referendum process after the voting- where Section 46(1) of the Constitution of <strong>Kenya</strong> Review Act gave jurisdiction to the<br />
IICDRC to issue appropriate remedies- whether the matter fell within the conduct of the referendum and could be brought<br />
by way of petition before the IICDRC -whether the application was within the mandate of the Court–Constitution of <strong>Kenya</strong><br />
Review Act Sections 43(1), 46(1), 60 A (1).<br />
The applicant brought a judicial review application seeking to quash a Gazette Notice in the <strong>Kenya</strong> Gazette which<br />
published a notice of the certificate of results of the referendum held on August 4th 2010. The applicant argued that<br />
the results were not published according to the law. The applicant further made an application for leave to apply for<br />
orders to prohibit the promulgation of the proposed Constitution of <strong>Kenya</strong> by operation of the law and the publication<br />
of its text in the <strong>Kenya</strong> Gazette which leave was to operate as a stay of the promulgation of the new law.<br />
It was the applicant’s case that regulation 36(1) (d) of the Constitution of <strong>Kenya</strong> Review (Referendum) Regulation 2010,<br />
which provided for the publication of the referendum results, in the format set out in schedule 2 of the Constitution of<br />
<strong>Kenya</strong> Review (Referendum) Regulations 2010, was ultra vires section 43(1) of the Constitution of <strong>Kenya</strong> Review Act<br />
2008. Secondly, she argued that the Gazette Notice which purported to be a certificate of the results of the referendum<br />
did not conform to the format set out in schedule 2 of the Constitution of <strong>Kenya</strong> (Referendum) Regulations 2010 and<br />
finally, that there had been some contradictory reports regarding the publication of a valid notice of the final results<br />
of the referendum.<br />
The 1st respondent and 2nd respondent raised a preliminary objection to the hearing of<br />
the application on the issue of jurisdiction. It was their argument that the High Court had<br />
no jurisdiction to hear the application filed before it. They based their argument on section<br />
60A (1) of the Constitution which established the Interim Independent Constitutional<br />
Dispute Resolution Court (IICDRC) with the exclusive original jurisdiction to hear and<br />
determine all and only matters arising from the Constitutional review process. They<br />
argued that in so far as matters arising from the Constitutional Review Process were<br />
concerned, Section 60A(1) of the Constitution, explicitly ousted the unlimited original<br />
jurisdiction granted to the High Court by Section 60 of the Constitution.<br />
It was further submitted that Judicial Review was a special jurisdiction in which the High<br />
Court exercised supervisory jurisdiction over acts of the executive. In the application in<br />
question, both the law and the constitution were express on the authority and jurisdiction of the High Court and the<br />
act complained of was not a normal executive act which could be subject of judicial review.<br />
The applicant on the other hand submitted that Section 60 of the Constitution set out the High Court of <strong>Kenya</strong> as a<br />
Superior Court of record, as opposed to the IICDRC. She argued that the only jurisdiction of the High Court which was<br />
limited by Section 60A of the Constitution was the civil and criminal jurisdiction, to the extent that it touched on the<br />
Constitutional Review Process. She maintained that the special jurisdiction of the High Court to determine matters of<br />
judicial review conferred under the <strong>Law</strong> Reform Act was not limited.<br />
The applicant further contended that that under Section 46(1) of the Constitution of <strong>Kenya</strong> Review Act, the only<br />
relief which could be granted by the IICDRC, was in relation to a petition challenging the conduct or result of the<br />
Referendum. These powers, according to the applicant, did not include powers to quash the Gazette Notice or the<br />
promulgation of the Constitution.<br />
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From the Courts — High Court<br />
Held:<br />
1. Section 60A (1) of the Constitution expressly suspended the jurisdiction of the High Court to deal with matters<br />
relating to the Constitutional Review process.<br />
2. It was evident that there was a deliberate action on the part of the legislature through Section 60A of the Constitution,<br />
to create a special court other than the High Court, with a specific mandate, of hearing disputes concerning Constitutional<br />
Review Process for a given period. In order to achieve that purpose, the Legislature deliberately temporarily suspended<br />
the powers of the High Court with regard to the Constitutional Review Process and gave the powers to the IICDRC.<br />
3. The powers of the High Court which were suspended during the lifetime of the IICDRC, were not just original<br />
jurisdiction of the High Court in regard to criminal and civil matters relating to the Constitutional Review Process, but<br />
also included all other powers specified in Section 60 as relates to the Constitutional Review Process. Such powers<br />
included the powers of the High Court of Judicial Review which were donated through the <strong>Law</strong> Reform Act Cap 26 in<br />
so far as such power related to the Constitutional Review Process.<br />
4. The applicant’s cause of action could not fall under Section 44 of the Constitution of <strong>Kenya</strong> Review Act 2008 as<br />
she was only questioning the Gazette Notice publishing the results of the Referendum. The section did not limit the<br />
petitions challenging the referendum to merely the results of the referendum. It included the conduct or results of<br />
the referendum.<br />
5. The court defined conduct as “the manner in which a person behaves and the directing or managing of something”.<br />
That meant the conduct of the referendum by IIEC included the management of the process until conclusion when the<br />
results of the referendum became final and were declared in accordance with Section 43 of the Constitution of <strong>Kenya</strong><br />
Review Act. Since the applicant’s complaint related to the management of the referendum process after the voting, it<br />
fell within the conduct of the referendum and could be brought by way of petition before the IICDRC, in accordance<br />
with Section 44 of the Constitution of <strong>Kenya</strong> Review Act 2008.<br />
6. Section 46(1) of the Constitution of <strong>Kenya</strong> Review Act 2008 gave jurisdiction to the IICDRC to issue any appropriate<br />
remedies.<br />
Application dismissed.<br />
Right to bail for capital offence suspects under the new Constitution<br />
Republic v Taiko Kitende Muinya<br />
Criminal Case No.65 of 2010<br />
High Court of <strong>Kenya</strong> at Nairobi<br />
F.A.Ochieng J.<br />
September 2, 2010<br />
Reported by Njeri Githang’a<br />
Constitutional <strong>Law</strong> - rights of an accused person – bail – application for bail pending trial– accused person charged with<br />
murder-right of an arrested person to be released on bond or bail-a new Constitution having been passed under which all<br />
offences were bailable-where one was only entitled to be released on reasonable conditions- principals to be considered<br />
by the court before granting an applicant bail– where the deceased was a son to the accused -whether the applicant was<br />
entitled to bail pending trial- Constitution of <strong>Kenya</strong>, 2010 Article 49(1) (h).<br />
The accused person had been charged with murder to which he pleaded ‘not guilty’ He consequently sought to be<br />
released on bail under the Constitution of <strong>Kenya</strong> 2010 on the ground that there was no reason to warrant any conclusion<br />
that he could abscond if he was granted bail.<br />
The state conceded that indeed the Republic of <strong>Kenya</strong> had earlier ushered in a new Constitution under which there<br />
was no category of offences which had been classified as being non-bailable. However, the State contended that there<br />
were compelling reasons to warrant the deprivation of bail to the accused person.<br />
Held:<br />
1. Under Article 49(1) (h) of the Constitution of <strong>Kenya</strong>, 2010 an arrested person had the right to be released on bond<br />
or bail, on reasonable conditions, pending a charge or trial, unless there were compelling reasons not to be released.<br />
An arrested person was hence entitled to be released pending either his being charged or his being tried. Therefore,<br />
even before a person who was under arrest was charged, he was entitled to ask that he be released on bond or bail.<br />
2. Although an arrested person was entitled to be released on bond or bail, the court could decline to release him in<br />
appropriate cases as one was only entitled to be released on reasonable conditions. What was reasonable would be<br />
determinable by references to the facts and circumstances prevailing in each case. The appropriateness or otherwise<br />
was no longer pre-determined by statute, as was the case prior to August 27, 2010 when all persons charged with<br />
offences carrying death sentences could not be granted bail or bond pending trial. The question as to whether or not any<br />
particular case disclosed compelling reasons to deny an arrested person his right was to be determined by the court.<br />
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From the Courts — High Court<br />
3. Although the Constitution did not cite the seriousness of the offence with which an accused was charged as a<br />
factor, it was undoubtedly a relevant factor. The sentence which the offence attracted was also a factor to be taken into<br />
account and lastly, the relationship, if any, between the accused person and the potential witnesses was another factor.<br />
4. An accused person would be more inclined to abscond if the charge against them was serious, and if the sentence<br />
was heavy. Where the accused was a person who was either related to the witnesses or a person who stood in a position<br />
of influence vis-à-vis the potential witnesses, there could arise a legitimate anxiety about the impact he might have on<br />
the witnesses, if he was released pending trial.<br />
5. In the application in question, the deceased was a son to the accused and it had been alleged that the accused had<br />
absconded from home for about 2 months. Furthermore, the offence of murder was so serious that it still attracted<br />
the death sentence, upon conviction.<br />
Application dismissed<br />
Constitutionality of military recruitment exercise<br />
Kerosi Ondieki v Minister of State for Defence and another<br />
Petition No. 181 of 2010<br />
In The High Court of <strong>Kenya</strong> at Kisii<br />
D. Musinga J.<br />
September 20, 2010<br />
Reported by Njeri Githang’a<br />
Constitutional <strong>Law</strong> - interpretation of various provisions in the Bill of Rights-recruitment into the military-application<br />
for a temporary injunction to restrain the 1st respondent from recruiting service men/women and constabularies into<br />
the armed forces in contravention of the Constitution - application on the ground that the conditions set out for recruiting<br />
into the armed forces manifestly and grossly contravened or violated the Bill of Rights as contained in Chapter 3 of the<br />
Constitution - where it was alleged that there was discrimination in the requirements for recruitment - whether the<br />
requirements stipulated by the 1st respondent for recruitment were discriminatory and thus contrary to Article 27of the<br />
Constitution-Constitution of <strong>Kenya</strong> 2010, Articles 19, 20, 21, 22, 23, 27, 28, 36, and 259.<br />
Constitutional <strong>Law</strong> - interpretation of the Constitution-Constitutional duties of<br />
the Defence Force- where one of the factors that determined the strength of a<br />
Defence Force was the quality of the people serving therein- whether fundamental<br />
rights and freedoms were absolute or whether they could be limited by other<br />
reasonable and justifiable considerations –where the alleged discrimination was<br />
in the interest of the health of the recruits -whether the requirements for the<br />
recruitment were discriminatory- Constitution of <strong>Kenya</strong> 2010, Article 241 (3).<br />
Constitutional <strong>Law</strong> - fundamental rights and freedoms-locus standi to bring<br />
such applications-scope of persons to enforce fundamental rights and freedoms<br />
in the Bill of Rights- petition brought through the petitioner’s advocate-whether<br />
such a procedural technicality could cause the petition to be struck out-Constitution of <strong>Kenya</strong> 2010, Article 22, 159(d)<br />
The petition was filed following an advertisement for recruitment of service men/women and constabularies into<br />
the armed forces on September 14, 2010 in the “The Standard” newspaper. The petitioner sought to have the court<br />
issue a temporary injunction to restrain the 1st respondent from recruiting service men/women and constabularies<br />
into the armed force s in contravention of the Constitution of <strong>Kenya</strong>. The application was made on the grounds that<br />
the advertisement in its entirety was unconstitutional. It was submitted that the conditions set out for recruiting into<br />
the armed forces manifestly and grossly contravened and violated the Bill of Rights as contained in Chapter 3 of the<br />
Constitution of <strong>Kenya</strong>.<br />
In the advertisement the conditions for recruitment were stated as:<br />
Conditions for Recruits<br />
(1) “Must be <strong>Kenya</strong>n Citizens. Membership in boy scouts and girl guides will be an added advantage.<br />
(2) Age – Between 18 and 26 years old.<br />
(3) Education – a minimum of mean grade D (Plain) in KCSE.<br />
(4) Be medically fit.<br />
(5) Have no criminal record.<br />
(6) Minimum Height – 5 ft 3 in (5’ 3”).<br />
(7) Minimum Weight:<br />
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(a) Men – 54.55 Kg(120 lb)<br />
(b) Women – 50.00 Kg (110 lb).<br />
(8) Women candidates must NOT be pregnant.<br />
(9) Potential candidates must turn up in appropriate running gear.”<br />
It was the petitioner’s view that vulnerable Members of society referred to in conditions 2, 4, 6, 7, and 8 of the<br />
advertisement had been denied their constitutional rights.<br />
The petition was opposed on the ground that the petitioner lacked legal standing to bring the petition and further that<br />
the petition ought to have been by the petitioner and not by his advocates. It was further submitted that the petitioner<br />
had not shown that he had any personal interest in the intended recruitment and neither did he fall within the category<br />
of the persons referred to in clause (2) of Article 22 of the Constitution.<br />
It was also contended that the conditions set by the Armed Forces in the aforesaid advertisement had not violated any<br />
constitution provision and in particular Articles 19 and 27 as fundamental rights were not absolute and in construing<br />
rights of an individual other peoples’ rights had to be also taken into account.<br />
Held:<br />
1. Article 22 stretched to the fullest the scope of persons who had the right to come to court to enforce any right or<br />
fundamental freedom in the Bill of Rights. As long as a person could demonstrate to a court that right or fundamental<br />
freedom in the Bill of Rights had been denied, violated or infringed or was threatened then he met the minimum<br />
threshold required under the law and therefore had locus standi. It was preferable to have citizens who were zealous in<br />
protecting their Constitution Rights and freedom than a situation where the courts restricted enforcement of such rights.<br />
2. Though the petition ought to have been by the petitioner and not by his advocates, Article 159 (d) of the Constitution<br />
provided that Justice had to be administered without undue regard to procedural technicalities. The defects pointed<br />
out by the respondents could not cause the court to strike out the petition.<br />
3. In considering whether the requirements for the recruitment were discriminatory and thus contrary to Article 27<br />
of the Constitution, the court had to take into account the constitutional duties of the Defence Force as outlined under<br />
Article 241 (3).<br />
4. Defence Forces had to be enabled in every respect to fulfill their role which included defence and protection of<br />
the sovereignty and territorial integrity of the Republic. One of the factors that determined the strength of a Defence<br />
Force was the quality of the people serving therein and such service started with recruitment. The defence Forces had<br />
to be in a position to recruit <strong>Kenya</strong>ns whom it believed were capable to competently undertake the duties expected<br />
of personnel in the force.<br />
5. Selection of recruits was preceded by vigorous physical examination. Medical examination was also a mandatory<br />
requirement. Potential candidates were also required to compete in running as part of the selection criteria. A candidate<br />
who was physically or medically unfit would not only fall such a test but could also endanger his/her life in trying to<br />
pass the selection process. Thus such rights had to be protected.<br />
6. Article 24 and 27 did not show that the conditions which had to be met by recruits were discriminatory as the<br />
alleged discrimination was in the interest of the health of the recruits and in the case of pregnant women the rights of<br />
the unborn child Article 26 recognized that the life of a person began at conception. No right or fundamental freedom<br />
was absolute as the right could be limited by other reasonable and justifiable considerations.<br />
7. Though the conditions that required to be met by recruits would of necessity cause several young men and women<br />
to be ineligible, it had to be borne in mind the work of the Armed Forces was not ordinary civil employment. The Armed<br />
Forces had to be given the liberty to recruit only those <strong>Kenya</strong>ns who were fit for the job. The preamble of the Constitution<br />
recognized the Almighty God as the God of all creation. There was need to acknowledge that the Almighty God granted<br />
different gifts, qualities and capabilities to different people so that they could excel in different jobs and/or occupations.<br />
Application dismissed; intended recruitment ordered to go on as scheduled.<br />
Constitutionality of committal to civil jail<br />
In Re the Matter of Zipporah Wambui Mathara [2010] eKLR<br />
Bankruptcy Cause No. 19 of 2010<br />
High court at Nairobi<br />
M. K. Koome J.<br />
September 24, 2010<br />
Reported by Njeri Githang’a<br />
Bankruptcy - stay of execution - application for stay of execution of order of committal to civil jail pending bankruptcy<br />
proceedings- application on the ground that the applicant was not in a position to appear before the official receiver to<br />
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From the Courts — High Court<br />
provide information for the composition and setting up of creditors meeting due to her incarceration-where the court had<br />
the discretion to issue an order of stay of execution in order to give the official receiver the opportunity to consolidate and<br />
administer the estate of the debtor –whether the application could be allowed- Bankruptcy Act Sections 9, 11 and 100.<br />
Constitutional <strong>Law</strong> - supremacy of the Constitution- application of international law-where International Treaties, and<br />
Conventions ratified by <strong>Kenya</strong> was listed a source of <strong>Kenya</strong>n law in the new Constitution- Article 11 of the International<br />
Covenant on Civil and Political Rights prohibiting imprisonment merely on the ground of inability to fulfill a contractual<br />
obligation-where the applicant was a debtor who had been committed to civil jail-whether the Constitution was above the<br />
Civil Procedure Act which made the provisions for recovery of money and execution by way of committal of the judgment<br />
debtor to civil jail as one of the means of enforcing a judgment-Constitution of <strong>Kenya</strong> 2010, Section 2(6) -Article 11 of the<br />
International Covenant on Civil and Political Rights.<br />
The applicant/debtor had been committed to serve a jail term due to her failure<br />
to satisfy a decretal sum of Kshs.339, 855.00 owed to the respondent pursuant<br />
to a judgment against her. She later filed Bankruptcy proceedings where a<br />
receiving order was issued in respect of her estate. She hence brought an<br />
application for stay of execution of order of committal to civil jail pending the<br />
bankruptcy proceedings.<br />
It was the applicant’s case that since a receiving order had been issued against<br />
her in the matter, her estate vested upon the official receiver and therefore she<br />
had no capacity to pay the decretal amount. Secondly, she submitted that she<br />
required to appear before the official receiver in person to provide information<br />
on her estate for the proper administration of her estate by the official receiver but she was not in a position to due<br />
to her incarceration.<br />
It was the applicant’s case that under Article 2(6) of the Constitution of <strong>Kenya</strong> 2010, any Treaty or Convention ratified<br />
by <strong>Kenya</strong> formed part of the <strong>Law</strong>s of <strong>Kenya</strong> under the Constitution. It was contended that that provision imported<br />
the Treaties and Conventions that <strong>Kenya</strong> ratified, especially the United Nations International Covenant on Civil and<br />
Political Rights which <strong>Kenya</strong> ratified on 1st May 1972. According to Article 11 of that Convention, no one could be<br />
imprisoned merely on the ground of the inability to fulfill a contractual obligation. It was further submitted that due to<br />
the hierarchy of the laws, the Constitution was supreme therefore the Civil Procedure Act that provided for committal<br />
to civil jail as a means of forcing a debtor to satisfy a contractual obligation was against the spirit of the Constitution<br />
and, International Human Rights <strong>Law</strong> that protected and promoted basic freedoms.<br />
Lastly it was argued that under Section 9 of the Bankruptcy Act after the receiving order was made, the Official Receiver<br />
was supposed to take over the property of the debtor which could not be attached except with the leave of the Court.<br />
On the other hand, the application was opposed by the respondent who alleged that the debtor was deliberately<br />
refusing to pay the debt as she had promised to pay the debt by installments of Kshs. 50,000/ and due to her failure<br />
to pay execution was issued by way of committal to civil jail which was provided for under the Civil Procedure Act.<br />
On the application of the International law, the respondent urged the Court to consider the Civil Procedure Act which<br />
made the provisions for recovery of money and execution by way of committal of the judgment debtor to civil jail as<br />
one of the means of enforcing a judgment.<br />
Held:<br />
1. The court had the discretion to issue an order of stay of execution in order to give the official receiver the opportunity<br />
to consolidate and administer the estate of the debtor. The argument by counsel for the respondent that the debtor<br />
was refusing to pay the debt did not hold because the application in question was not an application to set aside the<br />
receiving order.<br />
2. By virtue of Section 2(6) of the Constitution of <strong>Kenya</strong> 2010, International Treaties, and Conventions that <strong>Kenya</strong> had<br />
ratified, were imported as part of the sources of the <strong>Kenya</strong>n <strong>Law</strong>. Thus the provision of Article 11 of the International<br />
Covenant on Civil and Political Rights which <strong>Kenya</strong> had ratified was part of the <strong>Kenya</strong>n law. That covenant made<br />
provisions for the promotion and protection of human rights and recognized that individuals were entitled to basic<br />
freedoms to seek ways and means of bettering themselves. It therefore meant that a party, who was deprived of their<br />
basic freedom by way of enforcement of a civil debt through imprisonment, was also denied their ability to move and<br />
even seek ways and means of repaying the debt.<br />
3. There were several methods of enforcing a civil debt such as attachment of property. An order of imprisonment<br />
in civil jail was meant to punish, humiliate and subject the debtor to shame and indignity due to failure to pay a civil<br />
debt. That went against the International Covenant on civil and political rights that guaranteed parties basic freedoms<br />
of movement and of pursuing economic social and cultural development.<br />
Application allowed<br />
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From the Courts — High Court<br />
Due process and rendition of suspects to foreign jurisdiction<br />
Mohamed Aktar Kana v Attorney General<br />
Constitutional Application No. 544 of 2010<br />
High Court at Nairobi (Nairobi <strong>Law</strong> Courts)<br />
M. Warsame J.<br />
September 28, 2010<br />
Reported by Njeri Githang’a<br />
Constitutional <strong>Law</strong> - rendition-right of every citizen to be subjected to due process of the law-application to stop<br />
transfer of a suspect from the <strong>Kenya</strong>n jurisdiction-whether the court could order the Minister for Internal Security not to<br />
surrender the applicant/suspect to Uganda or any other jurisdiction- Constitution of <strong>Kenya</strong>, 2010 Articles 19, 20, 21, 22,<br />
23, 27, 28, 36, and 259.<br />
The applicant, a <strong>Kenya</strong>n citizen, was suspected to have participated in a terrorist attack in the Republic of Uganda.<br />
The applicant sought to be subjected to the due process of the law on the ground that that every citizen was entitled<br />
to be subjected to due process no matter the gravity and seriousness of the offence he was facing or was likely to face.<br />
It was the applicant’s case that there was a likelihood that he would be transferred from the court’s jurisdiction by<br />
the government of <strong>Kenya</strong> as it had been the tenacity of the government of <strong>Kenya</strong> through its agents to justify such an<br />
action by saying that there was an agreement to transfer suspects within East Africa provided there was a request by<br />
one member country.<br />
Held:<br />
1. The new constitution had enshrined the Bill of Rights of all citizens and to say one group could not enjoy the right<br />
enshrined under bill or rights was to perpetuate a fundamental breach of the constitution and to legalize impunity at<br />
very young age of the constitution. That kind of behaviour, act or omission was likely to have far and serious ramification<br />
on the citizens of the country and the rulers.<br />
2. The application raised the basic issue of whether a President who had just sworn and agreed to be guided by<br />
the provisions of the constitution could allow his agents to breach it. All those were issues which required sober and<br />
attentive judicial mind in order to address the rights and obligations of all parties involved.<br />
3. The application was a clear indication that the security arms of the country had not tried to understand and<br />
appreciate the provision of the new Bill of Rights. It also showed earlier years of impunity were still thriving in the<br />
executive arm of the government.<br />
Application allowed, applicant ordered not to be transferred from the court’s jurisdiction<br />
Due process and extradition of suspects<br />
Zuhura Suleiman v the Commissioner of Police and 2 others<br />
Misc. Criminal Application No. 441 of 2010<br />
High Court of <strong>Kenya</strong> at Nairobi<br />
A. O. Muchelule J.<br />
September 30, 2010<br />
Reported by Njeri Githang’a<br />
Constitutional <strong>Law</strong> - Habeas Corpus - application for writ of habeas corpus -nature and scope of the order of habeas<br />
Corpus - where the subject of the application, a terrorist suspect, was absent from the jurisdiction of the High Court –<br />
whether the Habeas Corpus application could be declared spent- Criminal Procedure Code, Section 389 (1) - Constitution<br />
of <strong>Kenya</strong>, 2010 section 81 (3)(f).<br />
Constitutional <strong>Law</strong> - extradition-right of every citizen to be subjected to due process of the law-application to bring back<br />
a suspect to the <strong>Kenya</strong>n jurisdiction-the suspect having been arrested and removed from the Court’s jurisdiction without<br />
a warrant for arrest having been issued-where all extradition provisions had been disobeyed –whether the suspect had<br />
been illegally arrested, detained and removed from <strong>Kenya</strong>- Constitution of <strong>Kenya</strong>, 2010 section 81 (3)(f).<br />
The applicant’s husband (the subject) had been arrested by a squad of Police Officers from Anti-Terrorism Police Unit<br />
(ATPU) under the suspicion of being a terrorist. The next day after the subject was arrested; the applicant found out<br />
that the subject had already been taken to an unknown destination. The applicant through her advocate hence came to<br />
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court under Section 389 of the Criminal Procedure Code and Rule 2 of the Criminal Procedure (Directions in the Nature<br />
of Habeas Corpus) Rules seeking summons to be issued against the Commissioner of Police and the Commandant of<br />
the ATPU to appear before the court in person or through their advocates together with the original of any warrant or<br />
order for the detention of the subject and show cause why the subject could not be released forthwith.<br />
It was the applicant’s case that whatever the offence the subject was suspected to have committed, he was entitled to be<br />
treated in accordance with the laws and Constitution of <strong>Kenya</strong> which provided for being charged within 24 hours, not<br />
being held incommunicado and not being taken out of jurisdiction without the conduct of extradition proceedings. It<br />
was submitted that no basis had been provided to link the subject with the bombings and that the removal of the subject<br />
from <strong>Kenya</strong> to Uganda had not accorded with the provisions of section 81 (3)(f) of the Constitution and the extradition<br />
requirements under Police Standing Orders (Cap 58) and the Extradition (Commonwealth Countries) Act (Cap 77).<br />
On the other hand, it was the respondent’s case that after the twin bombing that took place in Kampala in Uganda<br />
on July 11, 2010 both the ATPU and the Ugandan Authorities had commenced investigations and in the course of the<br />
investigations, they had gathered credible evidence that linked the subject with the bombings. The ATPU hence arrested<br />
the subject and on the following day took him to Uganda where they handed him over to the Senior Commissioner<br />
of Police Deputy Director CID/Crime Intelligence at CID Headquarter Kibuli. It was contended that since the subject<br />
was no longer in the custody of the respondents and was outside the jurisdiction of the court the application was<br />
misconceived and had to be dismissed as the order of habeas corpus could not issue.<br />
Held:<br />
1. Even where it was impossible for the respondents to produce the body of the subject because he had already been<br />
removed to Uganda they were still under a duty to make a return setting out the facts unequivocally and distinctly and<br />
showing the reasons why they were unable to obey the order.<br />
2. In the case in question, the respondents removed the subject to Uganda before the service of order. It was hence<br />
incumbent upon the respondents to state the reasons why in the first place they had arrested the subject and to show<br />
they had lawfully handed him over to Uganda authorities.<br />
3. The respondents did not disclose the nature of evidence the police held regarding the subject’s connection in the<br />
bombings to be able to hand him over. The subject was transferred in less than 12 hours of his arrest there was hence<br />
no opportunity afforded for him to apply to the <strong>Kenya</strong>n Courts for release neither was there any formal communication<br />
with his family or information that he was being taken out of jurisdiction. As a <strong>Kenya</strong>n citizen who had immunity<br />
against expulsion there should have been a formal request by the Ugandan authorities for him but there was none.<br />
There was no warrant issued by a court in Uganda seeking his arrest. All extradition provisions were hence disobeyed<br />
in his connection indicating that he was illegally arrested, detained and removed from <strong>Kenya</strong>.<br />
4. Whether one was a terror suspect or an ordinary suspect, he was not exempted from the ordinary protection of<br />
the law. Whatever the security considerations that the Police had in the case, the recognition and preservation of the<br />
liberties of the subject was the only way to reinforce the country’s commitment to the rule of law and human rights.<br />
Police had to have the capacity to battle terrorism and enforce human rights at the same time as the two were not,<br />
and could not, be incompatible.<br />
5. There was no justification for the treatment handed down to the subject by the respondents. The return made was<br />
not sufficient and the arrest, detention and removal of the subject from <strong>Kenya</strong> to Uganda was illegal and it transgressed<br />
his fundamental rights and liberties. These rights and liberties could not be given up for expedience’s sake.<br />
6. Terrorism had been both a challenge and a nightmare to law enforcement agencies in <strong>Kenya</strong> and the entire World<br />
and it was a complex and ever-changing phenomenon that had left vicious consequences both to lives and to property.<br />
Application allowed in part as the applicant was out of the court’s jurisdiction<br />
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From the Courts — High Court<br />
Application for bail on a capital charge<br />
Republic v Danson Mgunya and Another<br />
Criminal Case No. 26 of 2008<br />
High Court of <strong>Kenya</strong> at Mombasa<br />
Mohammed Ibrahim J<br />
October 15, 2010<br />
Reported by Njeri Githang’a<br />
Constitutional law-rights of an accused person – bail – application for bail pending trial– accused person charged with<br />
murder-right of an arrested person to be released on bond or bail-a new Constitution having been passed under which all<br />
offences were bailable-where one was only entitled to be released on reasonable conditions- principles to be considered<br />
by the court before granting an applicant bail-whether the applicants were entitled to bail pending trial- Constitution of<br />
<strong>Kenya</strong>, 2010 Article 49(1) (h)<br />
Constitutional law-supremacy of the Constitution-where the offence of murder was non-bailable under section 123 of<br />
the Criminal Procedure Code -Article 49 of the Constitution 2010 providing all offences were bailable-whether Article 49<br />
of the Constitution 2010 superseded section 123 of the Criminal Procedure Code- Constitution of <strong>Kenya</strong>, 2010 Article 49-<br />
Criminal Procedure Code (Cap 75), section 123<br />
The applicants had been charged on October <strong>13</strong>, 2008 with the offence of murder contrary to Section 203 as read<br />
with Section 204 of the Penal code. During that time under Section 123 of the Criminal Procedure Code, the offence of<br />
murder was non-bailable and they were therefore remanded. However, with the promulgation of the new Constitution<br />
on August 27, 2010, the law changed and under Article 49 of the Constitution, it was possible for an accused on a<br />
murder charge to apply for and be released on bail/bond. Consequently in the light of the New Constitution and the<br />
said provision, the applicants exercised their right to apply for bail pending the finalization<br />
of the trial.<br />
It was submitted for the applicants that they were presumed to be innocent until proven guilty. It was stated that<br />
the two applicants were senior citizens, born and bred in <strong>Kenya</strong> and with their children and spouses in country and<br />
therefore they were unlikely to abscond.<br />
Counsel for the State opposed the application for bail and submitted that Article 26 (3) of the new Constitution saved<br />
the death sentence which was still the sentence for murder. As a result, the severity of the sentence had to be considered<br />
and the resulting possibility of flight or absconding for fear of being sentenced to death and executed if convicted.<br />
According to the State the right to bail was not absolute and the court had to exercise its discretion judiciously. It was<br />
submitted that in the case in question, there were compelling reasons to deny bail. First, that the case was of great<br />
public interest and secondly the accused persons were exposed to a risk of being harmed by the public if released on<br />
bail. It was emphasized that the court was under a duty to protect the suspects.<br />
The State Counsel cautioned the court not to be seen as treating the suspects favorably for the reason that they were<br />
public servants. He was concerned that public would lose faith in the justice system if bail was granted. He concluded<br />
that the case which had proceeded expeditiously was at the helm of conclusion therefore the temptation to run away<br />
was a significant consideration.<br />
Held;<br />
1.The Constitution had to be interpreted in a manner that enhanced the rights and freedoms granted and enshrined<br />
rather than in any manner that curtailed them but each case had to be decided on its own circumstances.<br />
2.Article 49 of the Constitution of <strong>Kenya</strong> 2010, provided that an arrested person had the right to be released on bond<br />
or bail, on reasonable conditions, pending a charge or trial unless there were compelling reasons not to be released.<br />
An accused person charged with the offence of murder could hence apply for and be released on bail/bond.<br />
3.Article 49 of the Constitution 2010 superseded section 123 of the Criminal Procedure Code given the supremacy of<br />
the Constitution as set out in Article 2 which inter alia provided the Constitution was the Supreme <strong>Law</strong> of the Republic<br />
of <strong>Kenya</strong>. Any law including customary law that was inconsistent with the Constitution was void to the extent of the<br />
said inconsistency, and any act or omission in contravention of the Constitution was invalid.<br />
4.A murder suspect had a constitutional right to be released on bail. That was an inalienable right and could only be<br />
restricted by the court if there were compelling reasons for one not to be released. However, there were no rules or<br />
procedures formulated to spell out parameters within which bail applications for capital offences would operate. In<br />
some jurisdictions there were statutory procedures for the evaluation of bail applications and the criteria to be used<br />
was clearly set out. While in others there was a practice that affidavit evidence be tendered and considered when<br />
considering a bail application.<br />
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From the Courts — High Court<br />
5.Once an accused person applied for bail in a murder case, the same principles and consideration in bail applications<br />
in respect of any other criminal offences were applicable. The criteria included but not limited to;<br />
a. the nature of the charges;<br />
b. strength of the evidence which supported the charge;<br />
c. gravity of the punishment in the event of conviction; previous criminal record of the accused if any;<br />
d. the probability that the accused would not surrender himself for trial and<br />
e. The likelihood of the accused interfering with witnesses or suppressing any evidence that would incriminate<br />
him.<br />
Though the criteria was not in any way exhaustive, most of the criteria set out above were reasonable and was to be<br />
applied with a caveat that the primary criteria was whether the accused would be available at the trial.<br />
6.Under the Constitution, an arrested person had the right to be released on bond or bail on reasonable conditions<br />
pending a charge or trial. The singular exception was that there had to be compelling reasons not to be released.<br />
7.An accused person under arrest or detention had a right to challenge the lawfulness of his detention before the<br />
court of law. In addition, he had the right to be brought before an independent and impartial court not later than 24<br />
hours after his arrest to be charged or to be informed of the reason for his further detention failing which he had to<br />
be released. The burden was on the State to take the arrested person before the court and to prove that the accused<br />
though entitled to be released on bail ought not to be released because of the existence of compelling reasons which<br />
had to be stated, described and explained. If it was based on belief, then the justification had to be demonstrated, and<br />
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<br />
by the end of the next court day.<br />
8.If the prosecutor objected to the release of the accused from detention during the pendency of a trial, then at the<br />
first instance, the burden would be on the prosecution and not on the accused person to prove or at least demonstrate<br />
the existence of the “compelling reasons.”<br />
9.From the facts and circumstances of the case, the accused persons were unlikely to leave the jurisdiction of the<br />
court given that they were relatively senior citizens who were approaching retirement age. The allegation about the<br />
applicants’ security and possibility of being harmed by the public was not supported by any evidence neither was the<br />
court persuaded by the claim of the possibility of interference with witnesses or destruction of evidence. In the event<br />
that happened during the period when the accused persons were free, the state was at liberty to apply to court for<br />
relevant orders.<br />
10.There were no compelling reasons for the continued detention of the accused. It did not matter that the application<br />
was made when the case was about to end. Liberty was precious and that no one’s liberty could be denied without<br />
lawful reasons and in accordance with the law.<br />
Application allowed<br />
Mr. Odera for the 2nd Accused<br />
Dr. Khaminwa for the 1st Accused<br />
Mr. Muteti for the state.<br />
Election petition - Irregularities in elections<br />
Dickson Daniel Karaba v John Ngata Kariuki & 2 others<br />
Election Petition No. 3 of 2008<br />
High Court at Nairobi<br />
October 22, 2010<br />
Warsame J.<br />
Reported by Emma Kinya.<br />
Election <strong>Law</strong> – election petition – parliamentary election – petition seeking to nullify and declare void the election of<br />
the first respondent as Member of Parliament for Kirinyaga Central Constituency – irregularities in elections – petitioner<br />
citing irregularities in the conduct of elections – whether the first respondent was validly elected – National Assembly<br />
and Presidential Elections Act(Cap 7)<br />
Election <strong>Law</strong> – electoral documents – election result – manner in which results were recorded – Presiding Officer required to<br />
record the total number of votes cast in favour of each candidate and to sign the declaration set out in Form 16A certifying<br />
the results – where the said Form 16A had not been signed by the presiding officer or stamped by an Electoral Commission<br />
of <strong>Kenya</strong> (ECK) stamp and did not bear the names of the presiding officer – whether a Form 16A which was not signed by<br />
a presiding officer could constitute valid results which could be accepted for tallying by a Returning Officer - need for all<br />
the presiding officers to sign and stamp the Form 16As for the same to be considered valid – whether the petitioner had<br />
established to the required standard of proof that the 2nd respondent had accepted invalid results which he tallied and<br />
included in the final results as contained in Form 17A<br />
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From the Courts — High Court<br />
Election law – election petition – invalidation of elections – requirement that no election should be invalidated because<br />
of minor irregularities which do not substantially affect the outcome of the election as reflected in the official result –<br />
where it was clear from the evidence that the electoral malpractices had affected the credibility of the results that were<br />
announced and published by the 2nd and 3rd respondents – duty of the 2nd and 3rd respondent to ensure that the election<br />
process was transparent free and fair - whether the election process was in accordance with the law<br />
Evidence – documentary evidence – evidence that all the original election materials required to be produced before court<br />
by the Returning Officer under rule 19 of the National Assembly Elections (Election Petition) Rules were all destroyed in a<br />
fire that burnt down the offices of the 2nd and 3rd respondent – where Photostat copies of the original Form 16, 16As, 17,<br />
17As were obtained from the offices of the African Union – whether the Photostat copies which were adduced as secondary<br />
evidence were admissible as evidence of the content of the originals – Section 68(1) Evidence Act (Cap 80)<br />
The petition concerns the parliamentary election that was held in Kirinyaga Central Constituency where the 1st<br />
respondent was declared the winner. The petitioner was not satisfied with the results and therefore petitioned<br />
seeking that all the votes cast in Kirinyaga Central be scrutinized, counted and tallied to ascertain the true winner of<br />
the 2007 elections and also to set aside the election of the incumbent Member of Parliament for Kirinyaga Central<br />
Constituency for failure to comply with the provisions of the National Assembly and Presidential Elections act and<br />
the regulations under the Act.<br />
The petitioner alleged that the counting and re-tallying of votes was faulty and<br />
incorrect, causing an inaccurate number of votes to be attributed to the 1st<br />
respondent. He asserted that if all the votes cast in the election had been<br />
correctly counted and re-tallied, he would have won the election. He also<br />
contended that the Returning Officer committed arithmetic errors and failed<br />
in his duties of taking into consideration all the results from each of the polling<br />
stations. He further asserted that the results announced in Kirinyaga Central<br />
constituency did not reflect the will and wishes of the people of Kirinyaga<br />
Central and the petitioner therefore asked the court to declare him the winner<br />
of Kirinyaga Central Constituency if a finding was made that the 1st respondent<br />
had not been validly elected. He contended that a false declaration of a loser<br />
as a winner was an unlawful declaration within the scope of the National Assembly and Presidential Elections Act<br />
(Cap 7).<br />
The 1st respondent submitted that the petitioner could not rely on photostat copies delivered by the 3rd respondent<br />
of Forms 16A and 17A since their accuracy and authenticity could not be ascertained. The 3rd respondent had duly<br />
informed the court that all the election materials for the Kirinyaga Central constituency had been gutted by a fire in<br />
their offices and the originals of Forms 16A and 17A could not be traced. The photostat copies were therefore obtained<br />
from the African Union offices for use in the case. The petitioner in answer argued that the respondents were by conduct<br />
estopped from questioning the authenticity and contents of Form 16As and 17A or the weight to be attached to the<br />
contents since they were the ones who had delivered the same to court and in any case, the photostat copies could be<br />
admitted as secondary evidence in cases where originals had been destroyed. The 1st respondent further submitted<br />
that once the result was declared, the election was at an end, so that its validity cannot be questioned.<br />
The issue before court therefore was whether the petitioner had satisfied the threshold for nullifying the election<br />
bearing in mind the yardstick and foundations set out in section 28 of the National Assembly and Presidential Elections<br />
Act which is to the effect that no election shall be declared null and void by reason of non compliance with the law<br />
if it was conducted in accordance with the law or did not affect the result of the election; whether or not the state of<br />
being photostat copies rendered Forms 16, 16A,17 and 17A inadmissible as evidence of the contents of the original or<br />
in any matter lessen the weight to be attached and whether the failure to produce the documents on the grounds that<br />
they were destroyed can reduce the weight, authenticity and veracity of the photocopies tendered in part satisfaction<br />
of the 2nd and 3rd respondents statutory duty to court and to parties in this petition.<br />
Held:<br />
1.The issue that the petitioner should be declared the duly elected Member of Parliament for Kirinyaga Central<br />
Constituency was without merit and therefore rejected. It was not pleaded and it would have been unjust to impose<br />
someone on the electorate without sufficient basis.<br />
2.The destruction and loss of the original documents had been satisfactorily proved by the petitioner. Those who had<br />
seen or knew the contents of the documents could have proved or disproved the contents of the photocopies provided<br />
the court believed them.<br />
3.Section 68(1) of the Evidence Act allowed production of secondary evidence in certain circumstances including<br />
when the original had been destroyed or lost such as was the case before court. In the instant case there was no doubt<br />
that the copies produced were genuine copies of the original documents. The said copies could thus be used by the<br />
parties in order to test the veracity of the issues raised by the petitioner.<br />
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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<br />
custody pending the dispute concerning the election. They were also under an absolute duty to ensure that the election<br />
materials were not destroyed, stolen or lost in mysterious circumstances. As such, they were not allowed to object to<br />
the production and use of secondary evidence that they had brought in part fulfillment of their statutory obligation.<br />
5.If the election was conducted such that, it was substantially in accordance with the law, it would not be vitiated<br />
by breach of rules or mistake at the polls or the process, provided it had not affected the outcome of the election. The<br />
High Court found that a matter was deemed to have affected the outcome of an election if it had changed the direction<br />
and will of the people in a particular way or manner as was the case in Kirinyaga Central constituency.<br />
6.A Returning Officer had no discretion or powers to vary or override the results captured in Forms 16A from the<br />
polling stations in a given constituency. He also had no powers to change or substitute the result of the candidate as<br />
reflected in Forms 16A from the polling stations. In the instant case, there was no doubt that the Returning Officer<br />
changed the results allegedly obtained by the petitioner and the 1st respondent as the winner.<br />
7.The system and process employed by the Returning Officer had not guaranteed that the rights of the candidate were<br />
taken into consideration and respected. By announcing the 1st respondent as the winner and subsequently changing<br />
the results in three different occasions, the Returning Officer had not respected the popular will of the people of<br />
Kirinyaga Central. He had a legal obligation enforceable by the candidates and that burden had been clearly abdicated<br />
by announcing the 1st respondent as the winner when evidence available was to the contrary.<br />
8.If a duty was imposed upon a party, citizens expected strict performance by ensuring the laws of the land were<br />
observed and respected. No immunity could be granted to a person who transgressed on the rights and the liberties<br />
of citizens. To announce a person who had not obtained the highest votes as the winner of the election was to deprive<br />
or disenfranchise citizens of their rights to choose a person of their choice. In the instant case, the Returning Officer<br />
had committed fundamental and substantial error in announcing the 1st respondent as the winner when the evidence<br />
on record had not supported that position.<br />
9.There was no adherence and proper observance of the rules and regulations pertaining to electoral process. This<br />
was vital for the citizens of <strong>Kenya</strong> to have faith in the elections entrusted and carried out by the electoral body. It was<br />
of paramount importance to ensure that persons entrusted with the legal duty strictly respected the will of the citizens<br />
in a given constituency.<br />
10.The High Court divested the 1st respondent of the rights which were illegally bestowed on him by the 2nd<br />
respondent declaring him the winner and made a finding that the 1st respondent was not duly elected as a Member of<br />
Parliament for Kirinyaga Central Constituency. He benefited from a wrong announcement which amounted to unjust<br />
enrichment from an illegal and unlawful process and had therefore to be set aside.<br />
11.The finality of an election result could not validate an election which was a nullity because it had not been conducted<br />
in accordance with the rules. A candidate could not be deemed to have been elected legally unless the process was<br />
transparent, fair and free from the start to the end. The overwhelming evidence before this court was that the 1st<br />
respondent was not the candidate who garnered the highest vote.<br />
Petition allowed.<br />
Jurisdiction of the <strong>Kenya</strong>n courts on a charge of piracy on the High Seas<br />
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi<br />
Misc. Application No 434 of 2009<br />
Alias Dhodi & 8 others [2010] eKLR<br />
High Court, at Mombasa<br />
Ibrahim J<br />
November 9, 2010<br />
By Njeri Githang’a<br />
Admiralty law -Piracy -jurisdiction of the <strong>Kenya</strong>n Courts over piracy on High Seas-applicants charged with the offence<br />
of Piracy on High Seas- jurisdiction of the Courts of <strong>Kenya</strong> extending to every place within <strong>Kenya</strong>, including territorial<br />
waters under section 5 of the Penal Code -where the laws under which the applicants were charged did not provide for<br />
an express definition of what constituted “the High Seas” -whether High Seas was within the territorial waters of <strong>Kenya</strong><br />
-whether <strong>Kenya</strong>n Courts had jurisdiction to try the charges against the applicants in the case – whether the High Seas<br />
were outside the territorial jurisdiction of the <strong>Kenya</strong>n Courts-Penal Code (Cap 63), Section 5, 69 (1) and 69 (3)<br />
Statute law-Interpretation of Statutes –court’s jurisdiction under the Penal Code- where section 5 of the Penal Code was<br />
the defining provision with regard to jurisdiction of the <strong>Kenya</strong>n Courts in so far as the Code was concerned- jurisdiction<br />
of the Courts of <strong>Kenya</strong> extending to every place within <strong>Kenya</strong>, including territorial waters- jurisdiction of the courts to try<br />
the charge of piracy on High Seas under section 69 (1) of the Penal Code-whether section 69 (1) of the Penal Code was<br />
inconsistent with the Section 5 of the Penal Code to the extent that it included “the High Seas -whether section 5 overrides<br />
Section 69 (1) to the extent of the inconsistency- Penal Code (Cap 63), Section 5, 69 (1) and 69 (3)<br />
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From the Courts — High Court<br />
Statute law-Interpretation of Statutes -piracy- Section 69 of the Penal Code having been repealed by the Merchant<br />
Shipping Act- definition of piracy in the repealed Section –where there was no specific definition given of the offence of<br />
piracy jure gentium and therefore the elements of the offence were not given- whether “piracy” under section 371 of the<br />
new Act was the same as “piracy jure gentium” in the repealed Act- Merchant Shipping Act section 371- Penal Code (Cap<br />
63), 69 (1) and 69 (3)<br />
Statute law-repealing of Statutes-transitional clauses where a statute is repealed- Merchant Shipping Act repealing<br />
the Penal Code -where there was no clause providing that the repealed Section would not affect the power of the court<br />
to convict and sentence the accused persons in respect of the pending piracy cases and offences committed prior to the<br />
commencement of the Merchant Shipping Act-whether the jurisdiction of the courts to try the pending piracy cases could<br />
be saved in absence of a transitional clause<br />
The accused persons had been arrested in the High Seas of the Gulf of Aden in<br />
the Indian Ocean by a German Naval Vessel. Having been arrested, the<br />
Commander and officers of the German Naval Vessel brought the applicants to<br />
Mombasa and placed them in the custody of the <strong>Kenya</strong>n police and authorities.<br />
The accused persons were then arraigned in court and charged with the offence<br />
of Piracy contrary to Section 69 (1) as read with Section 69 (3) of the Penal<br />
Code where they pleaded not guilty.<br />
The trial commenced and the prosecution presented its evidence whereupon<br />
the accused persons were put on their defences. At that stage, the accused<br />
persons applied for leave to institute judicial review proceedings for an order<br />
prohibiting the Chief Magistrate Mombasa or any other Magistrate’s Court<br />
under her from hearing, or otherwise allowing the prosecution of their case arguing that the <strong>Kenya</strong>n Courts did not<br />
have jurisdiction under section 5 of the Penal Code to try them.<br />
The accused persons contended that that the alleged attack took place in/at the Gulf of Aden, and that at no time did<br />
the attack proceed to <strong>Kenya</strong>n waters or <strong>Kenya</strong>n Territory. Advocate for the accused persons stated that the only law<br />
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<br />
the Penal Code had been repealed by virtue of Section 454 of the Merchant Shipping Act and a new provision in respect<br />
of Piracy came into force through Section 371, there had been no amendment of the charge as may have been required<br />
by virtue of Section 214 of the Criminal Procedure Code before the close of the prosecution case.<br />
Counsel for the State on the other hand submitted that the Court had appropriate jurisdiction and was competent to try<br />
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<br />
Gentium” and was different from a charge of Piracy by statute. Accordingly, he provided that Piracy Jure Gentium was<br />
an offence against the <strong>Law</strong> of Nations and could be punished by any state or jurisdiction, even landlocked countries.<br />
One did not have to have territorial waters or a coast/coastal line to prosecute the offence as it was a crime against all<br />
Nations and Humanity.<br />
On the issue of Section 69 of the Penal Code being repealed by Section 454 of the Merchant Shipping Act, it was argued<br />
that Section 23 (3) (e) of the Interpretation and General Provisions Act saved the repealed section and the trial court<br />
had the jurisdiction and power to continue with the present case to its finality.<br />
Held;<br />
1.The <strong>Kenya</strong>n law under which the accused persons had been charged did not provide for an express definition of what<br />
constituted “the High Seas”. The “High Seas” as contemplated by section 69 (1) of the Penal Code excluded, territorial<br />
waters thus taking them outside the territorial jurisdiction of the <strong>Kenya</strong>n Courts.<br />
2.Section 5 of the Penal Code provided that “the jurisdiction of the Courts of <strong>Kenya</strong> for the purpose of this Code extends<br />
to every place within <strong>Kenya</strong>, including territorial waters.” That inferred that the <strong>Kenya</strong>n Courts had no jurisdiction in<br />
criminal cases and in particular in the offences set out in the Penal Code where the alleged incident or offence took<br />
place outside the geographical area covered by the Republic of <strong>Kenya</strong>.<br />
3.The High Seas were not and could not be a place in <strong>Kenya</strong> or within the territorial waters of <strong>Kenya</strong>. By definition<br />
they were strictly deemed to be outside the jurisdiction of all states in the world or on earth unless some law in the<br />
state brought it into their local jurisdiction whether Municipal <strong>Law</strong> or an International Convention.<br />
4.The Magistrate’s Court lacked jurisdiction to try the applicants in respect of the charge of piracy under section 69 (1)<br />
of the Penal Code. It had no jurisdiction over the matter when the charges were preferred, and when the proceedings<br />
took place. The court had acted without jurisdiction when they took the pleas of the Applicants and heard the case up<br />
to the close of the prosecution case. The whole process was therefore null and void, ab initio.<br />
5.Section 69 (1) of the Penal Code under which the accused persons were charged provided that any person who, in<br />
territorial waters or upon the high seas, commited any act of piracy gentium was guilty of the offence of piracy. That<br />
provision was inconsistent with Section 5 of the Penal Code to the extent that it included “the High Seas” in respect of<br />
where the acts of piracy were committed.<br />
6.Section 5 conferred on the <strong>Kenya</strong>n Courts jurisdiction over matters under the Penal Code and was the defining<br />
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provision with regard to jurisdiction of the <strong>Kenya</strong>n Courts in so far as the Code was concerned. Section 5 of the Penal<br />
Code was hence juridically paramount and it had to override Section 69 (1) of the Penal Code to the extent of the<br />
inconsistency. However, that did not affect any prosecutions or trials of the offence in territorial waters. The law to<br />
that extent was still sound and enforceable and was not fatal to the entire provision until Parliament corrected its<br />
clear error in purportedly extending the court’s jurisdiction to the High Seas in clear breach of the jurisdictional limits<br />
stipulated in Section 5. It was the judicial duty of the court to interpret the said written law and give it its correct legal<br />
application and meaning.<br />
7.Section 2 of the Penal Code which was a saving provision did not save the enforcement of acts done in the High Seas<br />
as had been unprocedurally attempted by Section 69 (1) of the Code.<br />
8.Section 6 of the Penal Code proved that the jurisdiction of the <strong>Kenya</strong>n Court was over and limited to acts done or<br />
offences committed within the jurisdiction of the court. However, the section made a qualification that where offences<br />
were committed partly within and partly beyond the jurisdiction of the courts then the courts assumed legal or legitimate<br />
jurisdiction over the matter. If part of the offence was committed within the territorial waters of <strong>Kenya</strong>, then such<br />
would be tried and punished under the Code by the Local Courts. In the case in question, there was no statement in<br />
the particulars alleging that the offence took place partly within the territorial waters of <strong>Kenya</strong>. Also, there were no<br />
allegations in the evidence of the 15 prosecution witnesses that such a situation arose. As a result, Section 6 of the<br />
Code had no application in the case.<br />
9.If the intention of Parliament was to extend jurisdiction to incidents beyond jurisdiction to the High Seas then it<br />
ought to have gone further to legislate expressly in the statutory provisions that matter i.e. sections of the statute.<br />
Titles and marginal notes were only of reference and were interpretive tools but not the <strong>Law</strong>. If that was the intention<br />
then there ought to have been an exception to Section 5 that provided the jurisdictional limits thereof did not preclude<br />
offences in the High Seas or in the alternative make a specific exception as done in Section 6 of the Penal Code for<br />
offences committed partly beyond jurisdiction. The title therefore was of no use on the question of jurisdiction.<br />
10.Section 69 of the Penal Code had been repealed by the Merchant Shipping Act, 2009. By a simple reading of the<br />
offence of piracy in the new Act, it became clear that it was not the same definition or description of piracy given in<br />
the repealed Penal Code. The piracy envisaged in Section 69 of the Penal Code was “piracy jure gentium” which was<br />
not expressly defined. In the repealed section the offence was also not defined and the court was obligated to find<br />
and determine its ingredients through other interpretive sources. It was not possible to state by reading the provision<br />
whether “piracy” defined in section 371 of the new Act was “piracy jure gentium” as stipulated in the repealed Act.<br />
11.Section 454 (1) of the Merchant Shipping Act which repealed section 69 of the Penal Code did not have an express<br />
saving or transitional provision which denied the prosecution the direct and unchallengeable right or advantage of<br />
proceeding with the prosecution and the court to continue with the trial.<br />
12.There was no sunset clause providing that the repealed Section would not affect the power of the court to<br />
convict and sentence the accused persons in respect of the pending piracy cases and offences committed prior to the<br />
commencement of the Merchant Shipping Act. Without such a clause to save the jurisdiction of the court to try the<br />
pending piracy cases, the accused persons were entitled to outright and unconditional acquittal.<br />
Application allowed, applicants released<br />
78<br />
<strong>Issue</strong><strong>13</strong>: July-December 2010
<strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong><br />
<strong>Bench</strong> <strong>Bulletin</strong><br />
From The Courts - Interim Independent Constitutional Dispute Resolution Court (IICDRC) - Cases<br />
The right of prisoners to vote in a referendum on a new constitution<br />
Priscilla Nyokabi Kanyua v Attorney General & Interim Independent Electoral Commission (2010 eKLR)<br />
Constitutional Petition No. 1 of 2010<br />
Interim Independent Constitutional Dispute Resolution Court (IICDRC) at Nairobi<br />
(S. N. Mukunya, J. Mohammed, S. Omondi, S. Kantai, M. N. Kioga (JJ)<br />
June 25, 2010<br />
By Njeri Githang’a<br />
Constitutional <strong>Law</strong> - voting at referendum-people’s constituent power to replace a Constitution - application to have<br />
prisoners registered as voters to facilitate their participation in a referendum- difference between a referendum and<br />
National Assembly and Presidential Elections -restrictions to voting – prisoners restricted to vote under section 43 of<br />
the Constitution- whether Section 43(2) (c) of the Constitution as applied to section 47A by section 47A 5(a) prevented<br />
inmates from voting in a referendum - whether a referendum was distinct from National Assembly and Presidential<br />
Elections- Constitution of <strong>Kenya</strong> section 43, 47A (2) (a), 47A 5(a) - Constitution of <strong>Kenya</strong> Review Act, 2008-Article 25 of<br />
the International Covenant on Civil and Political Rights (ICCPR).<br />
Constitutional <strong>Law</strong> - voting at referendum- people’s constituent power to replace a Constitution-whether people of<br />
unsound mind could take part in any function that required exercise of choice due to their status-whether the right to vote<br />
was also limited to people above the age of 18 and who had not committed an electoral offence.<br />
Constitutional <strong>Law</strong> - registration of voters-suspension of the registration of voters- whether the voters register could be<br />
reopened under Section 39 of the Constitution of <strong>Kenya</strong> Review Act No. 9 of 2008 - Constitution of <strong>Kenya</strong> Review Act No.<br />
9 of 2008, Section 39(3).<br />
Jurisdiction - jurisdiction of the Interim Independent Constitutional Dispute Resolution Court (IICDRC)- original<br />
jurisdiction on matters arising out of the Constitutional Review process vested on the IICDRC - application of the National<br />
Assembly and Presidential Elections Act in referendum disputes -whether the IICDRC had jurisdiction to handle voter<br />
registration matters- whether the petition was within the mandate of the Court– Constitution of <strong>Kenya</strong> Section 60 A (1)<br />
- National Assembly and Presidential Elections Act (Cap 7) section 7, 8 and 9<br />
Civil Practice and Procedure - parties to a suit-representative suit-locus standi– need for one to have a legal interest<br />
either vested or contingent in the subject matter before the Court- whether the petitioner had the locus standi to file the<br />
petition on behalf of prisoners.<br />
Civil Practice and Procedure - rules of procedure-interpretation of the rules- duty of the Court to interpret the Court<br />
Rules in a way that promotes the principle of substantial justice without undue regard to technicalities-where the issues<br />
raised were substantial and a decision on the issues raised was imperative-whether the court could strike out the petition<br />
for not complying with the Civil Procedure Rules and the (Practice and Procedure) Rules of the IICDRC.<br />
The petitioner, acting on instructions of Kituo cha Sheria’s Board of Directors,<br />
filed the petition on behalf of the Shimo La Tewa inmates demanding<br />
registration of all prisoners as voters by the Interim Independent Electoral<br />
Commission (IIEC). The IIEC had previously conducted a fresh voter’s<br />
registration exercise where all inmates had been excluded.<br />
The petition asserted that the inmates of Shimo la Tewa prison acting through<br />
the Chairman of the Shimo la Tewa Paralegals Association authorized Kituo<br />
cha Sheria to petition the relevant authorities tasked with the responsibility<br />
of registering voters for an upcoming referendum to consider the need for the<br />
prisoners to participate in the exercise.<br />
The petitioner argued that the section 43 of the Constitution only excluded prisoners from voting in general elections<br />
but not in a referendum and that therefore, the exclusion of prisoners by the IIEC from its voter registration exercise was<br />
illegal, given their mandate to undertake fresh registration of voters and create a new voters’ register for the referendum<br />
without expressly prescribing limitation to exclude any category of people. The petitioner asked the court to, among<br />
other things make a declaration that prisoners were eligible to be registered to participate in the upcoming referendum.<br />
In response, counsel for the Attorney General asked the court to dismiss the petition stating that the court did not<br />
have jurisdiction to entertain the petition because the National Assembly and Presidential Elections Act set out the<br />
mechanism as to the determination of questions of registration of voters. It was argued that matters of registration of<br />
voters were supposed to be dealt by registration officers as set out in that Act.<br />
The IIEC on the other hand contended that the petition was defective since the petitioner had no locus standi to bring<br />
the action as she had not alleged that any individual right guaranteed by the Constitution had been violated with<br />
respect to her.<br />
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From The Courts - Interim Independent Constitutional Dispute Resolution Court (IICDRC) - Cases<br />
Held:<br />
1.The Court was established under Section 60A (1) of the Constitution and had exclusive original jurisdiction on<br />
matters arising out of the Constitutional Review process. The non registration of inmates by the IIEC, in the concluded<br />
registration of voters for the August 4, 2010 referendum was a matter of Constitutional making process hence the<br />
petition was clearly within the mandate of the Court and section 7, 8 and 9 of the National Assembly and Presidential<br />
Elections Act could not apply to the petition.<br />
2. The petitioner had the legal capacity to file the representative suit on behalf of the prisoners. The Kituo cha Sheria<br />
being a registered Non-Governmental Organization, had capacity to sue and be sued under the Non-Governmental<br />
Organization Coordination Act. Accordingly, there was no reason why the matter should not have been instituted in<br />
the name of Kituo cha Sheria.<br />
3. For a person to have Locus Standi in a matter, one had to have a legal interest either vested or contingent in the<br />
subject matter before the Court. Such interest had to be above that of other members of the public in general.<br />
4. There were instances where many people whose fundamental rights were violated were not in a position to approach<br />
the Court for relief as a result of possibly being unsophisticated and indigent. Where large numbers of persons were<br />
affected in that way, there was merit in one person or an organization approaching the court on behalf of all those<br />
persons whose rights were allegedly infringed. In so doing, human rights became more accessible to man or woman<br />
in the street.<br />
5. Rule 10 of the IICDRC (Practice and Procedure) Rules mandated the Court to interpret the Court Rules in a manner<br />
that promoted the principle of substantial justice without undue regard to technicalities. The issues raised for the<br />
inmates were substantial and a decision on the issues raised was imperative. The court could not therefore strike out<br />
the petition for not complying with the Civil Procedure Rules and the (Practice and Procedure) Rules of the Court.<br />
6. While it could be argued that the petitioners claim to represent the interests of inmates at Shimo la Tewa prison<br />
was tenuous on the absence of a signed letter authorizing representation, the petitioner’s claim to standing on the<br />
basis of being an officer of an organization which championed the interests of the public in matters concerning human<br />
rights of the poor and marginalized such as prisoners demonstrated she was entitled to bring the case.<br />
7. From the wording of section 47A (2) (a), it was clear that the right to replace the Constitution with a new one vested<br />
collectively on the people of <strong>Kenya</strong> through a referendum. A referendum was clearly distinct from National Assembly<br />
and Presidential Elections and was only applied when the Constitution was to be made, altered or replaced.<br />
8. Article 25 of The International Covenant on Civil and Political Rights (ICCPR) which <strong>Kenya</strong> was a signatory to did<br />
not completely ban voting restrictions. It permitted “reasonable restrictions” on the right to vote and take part in<br />
public affairs.<br />
9. Section 47A (5) (a) of the Constitution of <strong>Kenya</strong> imported section 43 of the Constitution on the question of voting<br />
on a draft constitution in a referendum. However, section 47A 5(a) left a window open on application of section 43<br />
of the Constitution to a referendum on a draft constitution with the words “with necessary modification”. That clause<br />
left the court free to modify as the case may be on the various categories of qualifications and disqualifications to vote<br />
set out on the said section 43 of the Constitution.<br />
10. The people’s constituent power to replace a Constitution was above the Constitution itself. The power enabled the<br />
people to take part in a referendum and it could not be legislated upon by Section 43 of the Constitution to disenfranchise<br />
the very sovereign people from using their constituent power exercisable only through a referendum.<br />
11. Section 43 2(c) which expressly excluded people in protective custody from voting referred to the National Assembly<br />
and Presidential elections and not to a referendum. Section 43(2) (c) of the Constitution as applied to section 47A by<br />
section 47A 5(a) did not prevent inmates from voting in a referendum.<br />
12. The “people” could only apply to the people of sound mind and in control of their faculties. People of unsound<br />
mind could not be able to take part in any function that required exercise of choice due to their status. Whether or not<br />
they were in or out of prison they could not be “the people” in respect of the exercise of their Constitutional Power to<br />
vote in a referendum.<br />
<strong>13</strong>.The criteria to be used in modification in the courts mind was that of proportionality. On the balance of<br />
proportionality, there was no legitimate governmental objective or purpose that would be served by denying the<br />
inmates the right to vote in a referendum. The people’s constituent right to vote in a referendum was a basic human<br />
right that ushered in or refused to usher in a new Constitution. Neither the Constitution nor the National Assembly and<br />
Presidential Act Cap 7 could hence prevent inmates from taking part in a referendum if the prisoners were deemed to<br />
be part of the people. That right would however only be exercised by inmates of sound mind, who were over 18 years<br />
of age and who had not committed an electoral offence.<br />
14. The age of 18 was the internationally accepted age of majority. The Constitution of <strong>Kenya</strong> Section 43(a) set out<br />
the voting age at 18 years. That applied to all <strong>Kenya</strong>ns whether or not they were in prison or outside. Inmates under<br />
the age of 18 could not vote in a referendum.<br />
15. Section 39(3) of the Constitution of <strong>Kenya</strong> Review Act No. 9 of 2008 presupposed that the suspension of the<br />
registration of voters could be lifted and reopened. Besides, despite the provisions of the said section, the IIEC had<br />
continued to register people for voting way long after they had published the referendum question. The section did<br />
not quite put the registration process of voters in a strait jacket timetable as alleged.<br />
Petition allowed<br />
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Constitutional referendum – procedure in impugning the content of the draft Constitution<br />
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others<br />
Constitutional Petition No. 5 of 2010<br />
The Interim Independent Constitutional Dispute Resolution Court at Nairobi (IICDRC)<br />
S. Omondi, J. Mohamed and M. Kioga JJ.<br />
August 2, 2010<br />
Reported by Njeri Githang’a<br />
Constitutional <strong>Law</strong> - referendum-disputes arising out of the referendum process-need for the disputes to be brought at<br />
earliest available opportunity because of their potential impact-dispute brought less than a month to the referendum-where<br />
the dispute could have been brought earlier-whether instituting the petition at that stage was an abuse of the court process.<br />
Constitutional law - Constitution making- Constitution review process – review organs in the process-importance of a<br />
Referendum in the process-where the court had not been mentioned as a review organ in the process- whether the court<br />
had a role in determining what constituted the provisions of the Proposed Constitution of <strong>Kenya</strong> –whether the court could<br />
interfere with the referendum process-Constitution of <strong>Kenya</strong> Review Act (Act No.9 of 2008) section 5-Constitution of <strong>Kenya</strong><br />
section 47A (2)(a).<br />
Constitutional <strong>Law</strong> - supremacy of the constitution-referendum- constituent power of the people - power to make, enact<br />
and amend a Constitution - people’s right to vote and determine whether or not the proposals contained in the Proposed<br />
Constitution of <strong>Kenya</strong> (PCK) would become the supreme law –whether any other body had the power to alter or attempt<br />
to make any changes as to the contents of the PCK except the people themselves in the exercise of their constituent power<br />
to vote in a referendum.<br />
Jurisdiction - jurisdiction of the Interim Independent Constitutional Dispute Resolution Court (IICDRC) -Jurisdiction limited<br />
to hearing matters arising from the Constitutional review process –where most of the issues raised by the petitioners<br />
touched on the contents of the Constitution- whether the Court had the jurisdiction to determine what was to form the<br />
contents of the Proposed Constitution of <strong>Kenya</strong> (PCK)-Constitution of <strong>Kenya</strong> Section 60A (1).<br />
The thirteen petitioners had filed a petition to the Interim Independent<br />
Constitutional Dispute Resolution Court (IICDRC) on the allegation that the<br />
Proposed Constitution of <strong>Kenya</strong> (PCK) contained numerous provisions which,<br />
in their opinion, were illegally inserted or unilaterally introduced into the draft<br />
by the Committee of Experts (CoE). It was also their case that some of the<br />
provisions of the PCK violated some sections of the current Constitution.<br />
Further they argued that some provisions of the PCK violated, compromised<br />
and/or negated the objects and purpose of the constitutional review process<br />
as set out in Section 4 and 6 of the Constitution of <strong>Kenya</strong> Review Act, 2008 (Act<br />
No. 9 of 2008).<br />
It was also contended that the CoE had acted in breach of Sections 30, 32 and 33 of the Constitution of <strong>Kenya</strong> Review<br />
Act and exceeded its powers and mandate in carrying out its functions leading to the publication of the PCK. Finally,<br />
they sought an order of permanent injunction stopping the Interim Independent Electoral Commission (IIEC) from<br />
carrying out the referendum scheduled for the August 4, 2010.<br />
Held:<br />
1. The petitioners had been aware of the time the Committee of Experts (CoE) started their work and the various<br />
stages the review process passed through, yet they filed their application less than a month to the referendum. There<br />
was nothing to show that they made any effort to present their views before the CoE or any other organ but were locked<br />
out of the process. The institution of the petition was therefore an abuse of the court process.<br />
2. Matters concerning elections (referendum in the case) ordinarily had to be brought at the earliest available<br />
opportunity because of their potential impact on the elections. If they were brought too close to the elections, it could<br />
result in the postponement of the elections, which was not desirable in a democratic society. However there were<br />
circumstances, though rare, where bringing a challenge earlier was not possible having regard to the nature of the<br />
dispute. Where the challenge could have been brought earlier, a litigant had to put out facts covering the entire period<br />
of the delay, explaining why the challenge could not have been brought earlier. Failure to do so could result in the<br />
refusal of the relief.<br />
3. Section 60A (1) of the Constitution gave the Interim Independent Constitutional Dispute Resolution Court (IICDRC)<br />
exclusive original jurisdiction limited to hear and determine only matters arising from the Constitutional review process.<br />
The Court therefore had jurisdiction to entertain the Petition, as long as the arguments were based on the process of<br />
reviewing the constitution.<br />
4. Most of the issues raised touched more on content of the Proposed Constitution of <strong>Kenya</strong> (PCK) than the process<br />
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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<br />
consultation with <strong>Kenya</strong>ns. Anybody, including the Petitioners, if unhappy or dissatisfied with any provisions of the<br />
PCK, then they had an opportunity to make a decision as to whether the said provisions remained as they were or not<br />
through the exercise of their right to vote in the Referendum.<br />
5. The PCK, being a mere proposal would be subjected to the referendum and if it was not adopted then no illegality<br />
or contradiction would occur. If however it was adopted, then still there would be no illegality and contradiction since<br />
the proposed Constitution created bodies and institutions such as the Supreme Court and Parliament which would be<br />
charged with the duty of addressing such issues as they arose.<br />
6. Where there was a conflict between a schedule and the main body of the law, the main body of the law prevailed.<br />
It was not the Court to determine what went into the content of the proposed Constitution. <strong>Kenya</strong>ns would read for<br />
themselves and make a decision on whether they wanted to be governed by the provisions of the PCK or not.<br />
7. A Constitution of any country was the supreme law of the land and any other law was subordinate to it.<br />
8. All the prayers sought were either declaratory orders or orders of certiorari or mandamus. None of the grounds<br />
upon which the prayers were sought had any merit or raised any issue of Public concern or a dispute in the review<br />
process within the jurisdiction and mandate of the Court as established under section 60A of the Constitution.<br />
9. The importance of a referendum in the Constitution review process could not be over-emphasized as it was<br />
specifically provided for by the current constitution under section 47A(2)(a). According to the Constitution of <strong>Kenya</strong><br />
Review Act (Act No.9 of 2008) section 5; the review organs through which the constitution review process was to be<br />
completed were listed as;<br />
a) Committee of Experts.<br />
b) Parliamentary Select Committee.<br />
c) The National Assembly, and<br />
d) The Referendum.<br />
It was important to note that the order in which the organs were mentioned appeared to set the stages through which<br />
the process would be conducted. The process had already passed through the CoE, PSC, and National Assembly and<br />
the remaining organ was the referendum. The Court had not been listed as a review organ and therefore did not have<br />
a role in determining what constituted the provisions of the PCK at any stage.<br />
10. Referendum was the exercise of people’s constituent power in ratification of a Constitution made by the constituent<br />
Assembly. It referred to the people’s right to vote and determine whether or not the proposals contained in the Proposed<br />
Constitution of <strong>Kenya</strong> would become the supreme law that governed them or otherwise. It was therefore clear that<br />
the stage at which the review process was, nobody or any agency could alter or attempt to make any changes as to the<br />
contents of the PCK except the people themselves in the exercise of their constituent power to vote in a referendum<br />
11. The court had no legitimate right to interfere with the referendum scheduled for August 4, 2010. The court<br />
could not issue a ruling or make an order between Parliament and the referendum process as that would amount to a<br />
judicial body issuing rulings on political instead of legal issues, the result of which could be disastrous. Parliament in<br />
its wisdom decided that the PCK had to be subjected to the referendum. The court could not therefore interfere with<br />
the process as it had no authority to interfere with proposals which were on their way to the public for a final decision.<br />
12. The court’s main duty in the process of the Constitution making in a democratic society was to unblock the<br />
democratic channels. That function included the duty to safeguard the integrity of the Constitution review process.<br />
In doing so, courts had to prevent self-serving alterations of the legal and institutional frameworks of the review<br />
process and protect the rights of all actors in political and civil society, as well as preserve space for them to perform<br />
a meaningful role in the Constitutional review process.<br />
<strong>13</strong>. The role of the court remained to act on its Constitutional mandate to provide a level playing field where everyone<br />
could exercise their right to determine how they wished to be governed through a referendum.<br />
14. The people’s participation in creating laws and institutions that governed them was an important and integral<br />
part of governance that could not be usurped by any authority whether executive or judicial. An attempt by the Court<br />
to stop the referendum would therefore amount to a judicial coup detat on people’s constituent power.<br />
15. A court could not injunct, stop or restrain any of the processes leading to the referendum vote as to do so amounted<br />
to usurpation of the people’s power and a serious contradiction, in that judicial power was exercised on behalf of the<br />
people and it could not thus be exercised against them.<br />
Petition dismissed<br />
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Constitutional referendum – validity of draft Constitution<br />
Andrew Omtata Okoiti & 5 others v Attorney General & 2 others [2010] eKLR<br />
Constitutional Petition No. 3 of 2010<br />
The Interim Independent Constitutional Dispute Resolution Court (IICDRC) at Nairobi<br />
V. K. Mavisi, S. N. Mukunya & S. Ole Kantai, JJ<br />
August 2, 2010<br />
Reported by Nelson Tunoi<br />
Jurisdiction - jurisdiction of the Interim Independent Constitutional Dispute Resolution Court (IICDRC)-matters arising<br />
from the constitutional review process-original jurisdiction on matters arising out of the constitutional review process<br />
vested on the IICDRC-conservatory and declaratory orders-where the petitioners sought to have the constitutional review<br />
process, including the referendum and the organs of review process supervised by the court-whether the IICDRC had<br />
jurisdiction to entertain the petition and grant the orders sought-whether by interfering with the constitutional review<br />
process the court would be engaging in a political process that was outside its mandate.<br />
Constitutional <strong>Law</strong> - fundamental rights and freedoms-violation of-constitution review process-petitioners alleging that<br />
their rights to replace the constitution were violated by the acts of the various state officers and public bodies for whom<br />
the 1st respondent was legally answerable for-whether the proposed constitution was properly published as required<br />
by law-whether the publication of the two draft constitutions and denouncing of one version two weeks later infringed<br />
on the petitioners’ sovereign right to participate in the writing of the constitution-whether the alleged alterations in<br />
the proposed constitution by the 1st respondent were so fundamental as to alter the character of the draft document by<br />
the 2nd respondent-whether such editorial errors were of such a magnitude as to compromise the sovereign right of the<br />
petitioners’ to take participate in the constitution making process.<br />
Constitutional <strong>Law</strong> - constitutional review process-constitutional review organs-Committee of Experts (2nd respondent)-<br />
whether the 2nd respondent properly executed its mandate when identifying contentious issues-whether the 2nd respondent<br />
had any discretion in determining what was contentious-whether the 2nd respondent was bound by the recommendations<br />
of the Parliamentary Select Committee (PSC)-whether the content of the draft constitution was to be limited to what<br />
existed in prior draft constitutions.<br />
Constitutional <strong>Law</strong> - constitution review process-registration of voters-whether citizens resident outside the geographical<br />
jurisdiction of <strong>Kenya</strong> were entitled to register and participate at the referendum while abroad or overseas-whether the<br />
law envisioned registration and polling only at legally prescribed stations within domestic constituencies-whether the<br />
prevailing trends were in favour to voting for those in diaspora-whether a referendum o the constitution was just as good<br />
as any other election or whether it was a special activity calling for different rules.<br />
Constitutional <strong>Law</strong> - constitutional review process-referendum-participation in a free and fair referendum-referendum<br />
question-whether the mandate to craft the referendum question resided with the Interim Independent Electoral Commission<br />
(IIEC)-whether there was a specific manner in which the referendum question was to be framed-whether the character of<br />
the referendum question for presentation at the referendum was such as to compromise the Petitioners’ sovereign right<br />
to participate in the writing of the Constitution-whether it was in the public interest for the court to interfere with the<br />
process and postpone the referendum.<br />
The petitioners filed a petition before the Interim Independent Constitutional<br />
Dispute Resolution Court (IICDRC) seeking for both conservatory and<br />
declaratory orders against the respondents. They sought to have the<br />
constitutional review process, including the referendum and the organs of<br />
review process supervised by the court; that the referendum scheduled on the<br />
4th August 2010 be postponed or varied on grounds that the exercise would<br />
have failed some constitutional thresholds including popular consultation, fully<br />
consultative, inclusive and democratic framing of the constitution proposal<br />
and a free and fair national referendum; and that the petitioners living in the<br />
diaspora registered as voters for the referendum.<br />
Before the hearing of the petition, counsel for the 3rd respondent raised a preliminary objection to the effect that the<br />
court lacked jurisdiction to hear and grant the orders sought by the petitioners, contending that the jurisdiction granted<br />
to the court by Parliament was limited to ensuring that the constitutional review process was conducted within the<br />
parameters of the Constitution and the Constitution of <strong>Kenya</strong> Review Act, Act No. 9 of 2008. He argued that the timelines<br />
set out by those legislations were well spelt out and the court could not re-write such timelines since that was the<br />
responsibility of Parliament. He therefore urged court to dismiss the petition for being an abuse of the court process.<br />
In response, counsel for the petitioners opined that the jurisdiction of the court to deal with the matters in the application<br />
was derived from the petition itself, which the 2nd respondent had not faulted. He contended that the jurisdiction<br />
was derived from section 60A of the Constitution and the Rules of the Court, and that the matters raised were within<br />
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the mandate of the court as the petitioners questioned various acts and omissions by the respondents who were also<br />
organs of the constitution review process.<br />
The court dismissed the preliminary objection raised by the 3rd respondent’s advocate and proceeded to hear the<br />
petition lodged. The petitioners’ basic complaint was that the respondents had violated their right to participate in<br />
replacing the Constitution through their various unlawful actions and further that the Review Act had also violated<br />
their right to participate in the replacing of the Constitution since it contravened section 47A of the Constitution. Such<br />
alleged violations included the systematic noncompliance with the statutory provisions; that the Constitution of the<br />
Committee of Experts was legally inadequate; effecting of changes and alterations by the 1st respondent on the draft<br />
constitution in contravention of the Review Act; the failure of 2nd respondent to conduct impartial and sufficient civic<br />
education; the failure by the 2nd respondent to utilize public resources impartially; the failure by 3rd respondents<br />
to properly frame the referendum question; the failure by 3rd respondent to allow <strong>Kenya</strong>ns in diaspora the right to<br />
register and vote at the referendum; and the failure by 1st, 2nd, 3rd respondent to ensure a free and fair referendum.<br />
The 1st respondent, the Attorney General, objected to the petition on grounds that the petitioners lacked locus standi;<br />
that the referendum could not be a subject of the petition as it had not happened; that the typographical errors had not<br />
been proved since the evidence adduced did not follow the usual rules of evidence; that the 1st respondent complied<br />
with his mandate under the Review Act; that the court had no mandate to verify accounts of public offices; and that the<br />
petitioners were guilty of delays. Subsequently the 2nd and 3rd respondents lodged their responses denying having in<br />
any way interfered with the rights of the petitioners, and deponed that they carried out their functions in accordance<br />
with the various provisions within the Constitution and the Review Act. The 2nd respondent more specifically contended<br />
that there was no admissible evidence adduced to the effect that the civic education conducted was partisan. In that<br />
respect, the newspaper cuttings could not be a source of evidence for the court. Moreover, the 2nd respondent submitted<br />
that it submitted all documents as required by law and that regarding the timing of the civic education, it was to be<br />
conducted at all stages. There were no timelines suggested with respect to section 27 (1) of the Review Act. Further, it<br />
submitted that it was a statutory duty under the Review Act, which required it to carry its brainchild, its product, the<br />
draft constitution, to its enactment, and had nothing to do with partisanship. The 2nd respondent further contended<br />
that sufficient information on its proceedings was actually in the public domain having been reduced in writing, and<br />
indeed a report had been published after the recommendations of the Parliamentary Select Committee.<br />
Regarding the 3rd respondent, on the issue of registration of voters, it submitted that the period for registration<br />
could not run ceaselessly, for the reason that there were other vital processes that ought to be undertaken such as<br />
the compilation of all the data collected and collated from the field, creation of a principal register and register per<br />
constituency as mandated by the law, return of the registers for corrections and inspection by the voters, return of<br />
the corrections and preparations of the registers amongst other logistical items, and therefore the period of fifty (50)<br />
days was sufficient to allow as many eligible voters as possible to register. Regarding the possibility of facilitating<br />
the registration of <strong>Kenya</strong>ns in the diaspora and their consequent voting, the 3rd Respondent’s response was that the<br />
registration exercise was a very costly process that ought to be budgeted for and funds availed in advance specifically<br />
for that purpose. Thus, the request by the petitioners not only presents logistical problems of gargantuan proportions<br />
but also portents enormous cost implications.<br />
With respect to the referendum question, the Petitioners’ case was that by adopting a binary question as opposed to a<br />
multiple style referendum or a referendum with an addendum of contentious issues, the 3rd respondent violated their<br />
constitutional and sovereign right to participate in the replacement of the Constitution. In response, the 3rd respondent<br />
stated that under section 37(1) – (3) of the Constitution, the referendum question was to be framed so as to require<br />
the answer YES or NO. Thus, in full observance of section 37(3), there could not be any other manner of framing the<br />
referendum question other than to this extent allowed by the law. Counsel for the 3rd respondent further submitted<br />
that the question for referendum was a matter that was outside the domain of the 3rd Respondent which has already<br />
done its work as required by law and that the complaint lacked merit and should be dismissed.<br />
Regarding the issue whether it was in the public interest to interfere with the process and postpone the referendum,<br />
the petitioners urged court to postpone the process claiming that the issues arising were of a public interest nature.<br />
Conversely, the respondents asked the court not to do so arguing that <strong>Kenya</strong> had been on the constitution making process<br />
for far too long and that therefore it would be wrong to interfere with the review process. Further, the respondents<br />
asserted that the petitioners’ grievances were a way of articulating failed political proposals, and thus urged the court<br />
not to interfere with the review process since by doing so it would be engaging in a political process that was outside<br />
its mandate.<br />
The main issues for determination by the court was whether the respondents had exercised their respective mandates<br />
in accordance with the law; whether the <strong>Kenya</strong>ns in the diaspora were eligible to be registered as voters for purposes<br />
of the referendum; and whether the petitioners’ right to free and fair election had been infringed by the respondents<br />
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in the exercise of their mandate in accordance with the law.<br />
Held:<br />
1. Although the petitioners approached court on their own and did not claim to be acting for many others, they<br />
nevertheless had locus standi since they were seeking redress for the alleged violations by the respondents, of their<br />
legal rights in contravention of the Constitution.<br />
2. Regarding jurisdiction of the court to hear the petition, section 60A of the Constitution provided for exclusive<br />
jurisdiction of the court to hear and determine all matters arising out of the constitutional review process; and where<br />
a party had proved that the matter arose from such a process, it was the court’s duty to entertain and determine the<br />
same. Further, the mere fact that the court may not grant the orders sought for various reasons does not take away<br />
the jurisdiction of the court.<br />
3. On the admissibility of evidence by affidavits, where the court finds it appropriate and that reliable and sufficient<br />
information has been provided, affidavit evidence may be accepted subject to where the court has made specific finding.<br />
4. It is desirable that a challenge to the constitutional or legislative validity of especially public actions be brought<br />
in a timely manner, and each case be dealt with on a case to case basis. In the present case, comparing the time when<br />
the court and its rules were put in place and when the petition was filed, which was about three months apart, it could<br />
not be said that the petitioners had overly delayed in coming to court.<br />
5. The eventual character of the draft constitution that would be presented at the referendum was not unknown. In<br />
that draft constitution, clause 24 did not carry the words “national security” and not even the statutory edits by the<br />
AG could introduce such terminology. The court could not therefore give credence to criminal intentions by upholding<br />
the view that the commission resulted into the publication of two draft constitutions. Moreover, the petitioners did<br />
not produce in court the draft they were referring to, and further no evidence was adduced to show that they had been<br />
misled even after the corrections by the AG. Consequently, there was no justifiable ground for the petitioners claim<br />
that their interests and right to participate in the referendum were injured because of the same.<br />
6. There were no material alterations to the draft constitution that had a fundamental impact to the extent that it<br />
changed its character. The evidence adduced as annexed to the petition did not support such a finding and therefore<br />
there was no reason to believe that such alterations were not necessary for perfecting the document and in line with<br />
good drafting techniques.<br />
7. Regarding the composition and competence of the Committee of Experts, there was no evidence adduced to show<br />
that the procedure of appointment and/or lack of competencies in any way was prejudicial to the rights of the Petitioners<br />
or in any way prevented the Committee of Experts from performing its duties at all as envisaged by the law. Therefore,<br />
the question as to whether the petitioners’ rights were violated became moot and remote.<br />
8. With respect to identifying contentious issues or even determining the content of the draft constitution, the<br />
Committee of Experts had discretion, although not arbitrary, since it was susceptible to checks and balances at each<br />
and every stage of the review process. The Committee of Experts following its mandate under the Review Act in<br />
identifying issues that were contentious and those that were not, could not act arbitrarily. <strong>Issue</strong>s such as Kadhi courts,<br />
land, electoral system and affirmative action were not labeled contentious since unanimity had been reached on them<br />
in the previous drafts and therefore the Committee of Experts using statutory methodology could not possibly label<br />
those issues as contentious. The complaints raised by the petitioners regarding identification of contentious issues<br />
expressed preferences and choice which was not sufficient to overrule the Committee of Experts and therefore could<br />
not be sustained.<br />
9. On whether facilitation of civic education amounted to conducting the same, the mandate of the Committee of<br />
Experts extended to actual provision of civic education, and that in the performance of that function it could incorporate<br />
officers of the provincial administration as well as other non-state actors.<br />
10. Regarding the issue whether the Committee of Experts in conducting the civic education compromised the<br />
expectation of political neutrality on its part, the evidence adduced by the petitioner was not proper evidence for<br />
purposes of determination of such a profound case. Nonetheless, it was the role of the Committee of Experts to inform<br />
<strong>Kenya</strong>ns the content of the draft constitution, and further to defend its content by publicly stating the rationale for each<br />
and every provision when called upon. Once they had educated on the content of the draft constitution, there was no<br />
visible legal duty to convince, persuade or campaign.<br />
11. On the issue of abuse of public resources by the Committee of Experts, the allegation of such a magnitude could<br />
not be founded on the evidence adduced by the petitioners, and determination of such allegation was only by checking<br />
at audited accounts or even on guidance of experts, and that there were better institutions to determine whether<br />
financial matters were in dispute.<br />
12. On the issue of access to verbatim records of the CoE, the Committee of Experts had sufficiently kept the public<br />
informed through its published reports and websites. There was no evidence to show that there was information the<br />
petitioners sought and were denied. Moreover, eventually all kinds of information would eventually be available at<br />
the national archives.<br />
<strong>13</strong>. Given the profound character of constitutional referenda and its impact on the State and the wellbeing of a majority<br />
of the citizens, those in the diaspora should be allowed to register and vote during such processes. However, the<br />
prevailing jurisprudence requires that those human rights bearing enormous logistical and cost implications be realized<br />
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only progressively and subject to the availability of resources, and thus such entitlements are achieved incrementally.<br />
14. The Interim Independent Electoral Commission had the mandate to frame the referendum question and the<br />
question was to be tied to the adoption or rejection of the draft constitution by the citizenry and as part of exercising<br />
their franchise, the option available was to vote either YES or NO. It was also discernible that the review law never<br />
anticipated a multiple style referendum hence the Petitioners’ claim for a multiple questions style referendum was not<br />
informed by the law under section 37(3) of the Review Act. Since the court found no breach of any law, it was difficult<br />
to find any violations of the Petitioners’ rights.<br />
15. The claim of lack of a free and fair election in the referendum lacked merit and was premature. The petitioners’<br />
claim that public funds and state resources were being used in the campaigns and thus infringed on their rights for a<br />
free and fair election were isolated cases and could not suffice to warrant the referendum to be stopped.<br />
16. On whether it was in the public interest to interfere with the process and postpone the referendum, it was only in<br />
one instance that the petitioners claimed to be acting in the public interest, which involved the issue of registration and<br />
participation of voters in the diaspora. The matter of constitution review process was weighty and was in the public<br />
interest and the court could only interfere where there were profound breaches in the process.<br />
17. The Attorney General, the Committee of Experts and the Interim Independent Electoral Commission exercised<br />
their mandate in accordance with the law.<br />
Petition dismissed<br />
Constitution review – mandate of Committee of Experts; Prime Minister’s Oath of Office<br />
Eric Nicholas Omondi & 8 Others v AG & 2 Others<br />
Constitutional Petition No. 2 of 2010<br />
Interim Independent Constitutional Dispute resolution court at Nairobi<br />
V. Mavisi, J. Mohamed & M. Kioga JJ. & 2 Others<br />
August 2, 2010<br />
Reported by Emma Kinya.<br />
Constitutional <strong>Law</strong> – constitution making – constitution Review Process – review organs in the process – mandate of the<br />
review organs – whether the Committee of Experts had exceeded their mandate when it purported to change the various<br />
clauses that were not contentious; omitted clauses that had been agreed upon in the draft constitution; disregarded the<br />
public views and recommendations of the PSC and deleted some clauses.<br />
Constitutional <strong>Law</strong> – constitution making – constitution review process – oath – lack of an oath for the office of the<br />
Prime Minister – where the petitioners felt that such an office required an oath in accordance with the sixth schedule of<br />
the Proposed Constitution – whether there would be a constitutional crisis due to lack of an oath .<br />
Jurisdiction - jurisdiction of the Interim Independent Constitutional Dispute Resolution Court (IICDRC) -Jurisdiction<br />
limited to hearing matters arising from the Constitutional review process –where most of the issues raised by the petitioners<br />
touched on the contents of the Constitution- whether the Court had the jurisdiction to determine what was to form the<br />
contents of the Proposed Constitution of <strong>Kenya</strong> (PCK)-Constitution of <strong>Kenya</strong> Section 60A (1).<br />
The petition was filed by 9 petitioners challenging the manner in which the<br />
2nd respondent as an organ of review carried out their work. However, no case<br />
was set out against the 1st respondent save to say that he was the Principal<br />
Legal Advisor to the Government. The petitioner contended that the<br />
constitutional review process had been threatened and the purpose and objects<br />
of the review process would not have been attained due to the various actions<br />
by the Committee of Experts (CoE) which went beyond their mandate as given<br />
to them by the Review Act.<br />
The petitioners asked the court to determine whether CoE had mandate to reopen<br />
the debate on issues that had not been identified as contentious; whether<br />
CoE failed in its mandate when it omitted clauses that had been agreed upon in the existing draft constitution; whether<br />
CoE had mandate to disregard public views and recommendations of the Parliamentary Select Committee; whether the<br />
CoE went beyond its mandate in deleting some provisions; whether provisions of Article 26(4) and 32 of the proposed<br />
Constitution reflected the views and aspiration of the people of <strong>Kenya</strong>; whether the court had jurisdiction to expunge the<br />
offending clauses in the proposed Constitution; whether the court had jurisdiction to rectify the proposed constitution.<br />
The petition was founded on grounds that the 2nd respondent’s mandate was limited to soliciting and receiving views<br />
in respect of the contentious issues only; the CoE did not have authority to depart from the provisions of the existing<br />
drafts on contentious issues; the CoE did not have the mandate to write a totally new constitution; the CoE was obliged<br />
to respect the views and presentations of the members of the public after it published the harmonized draft constitution;<br />
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the Prime Minister was an important state officer under the current and proposed constitution and the third schedule<br />
of the proposed constitution should have provided for an oath or solemn affirmation by the Prime Minister.<br />
In the petitioners’ view, section 47A of the previous Constitution did not stop one from questioning the manner in<br />
which the process had been carried out. Indeed, it was the reason why the Interim Independent Constitutional Dispute<br />
Resolution Court (IICDRC) had been set up under Section 60A to determine such disputes. In their view, the court had<br />
a supervisory role over the organs of review in carrying out their mandate. The petitioners asserted that once PSC had<br />
made its decision on the issues brought before them, then the CoE had no mandate to change the same but to frame<br />
them in a manner recommended by PSC.<br />
The petitioners felt that the office of the Prime Minister was such an important one and lack of an oath would cause a<br />
constitutional crisis as the holder of the office would not have taken an oath in accordance with the sixth schedule of<br />
the Proposed Constitution which provided for such an oath for other office holders.<br />
The petitioners further asserted that they were not guilty of laches in coming to court as there was no law that provided<br />
for the timelines within which one came to court. They submitted that they were not praying for the referendum date to<br />
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<br />
document.<br />
The issues before court for determination were whether the court had jurisdiction to grant the prayers sought and<br />
whether the CoE exceeded its statutory limits when identifying issues in contention and during the compilation of the<br />
proposed constitution.<br />
Held:<br />
1. Section 60A of the Constitution had allotted exclusive original jurisdiction to the IICDRC to hear and determine all<br />
matters arising out of the Constitutional Review Process. Where a party had proved that a matter arose from such a<br />
process, then the IICDRC would entertain and determine the same. The mere fact that the IICDRC may not have granted<br />
the orders sought for various reasons did not take away the jurisdiction of the court.<br />
2. The 2nd respondent had exercised its powers and mandate in accordance with the law. The nerve centre of the<br />
Committee of Experts’ (CoE) mandate was the identification of issues in contention and therefore, they had the discretion<br />
of defining what amounted to contentious issues. However, that latitude was not absolute but susceptible to checks<br />
and balances at each and every stage of the review process.<br />
3. The petitioners’ grievance as against the CoE was misconceived. The court found that there was no violation of the<br />
discretionary power granted to them unless it was shown that one organ or stage was sidestepped.<br />
4. The reasonable exercise of discretionary public power involved the idea of choice. It was about the exercise of will.<br />
Thus, the abuse of discretion would have involved more than a difference in opinion but a demonstration of perversity<br />
of will, a defiance of good judgment or bias. The primary rule when exercising statutory discretion was that such<br />
discretion should have been used to promote the policies and objects of the governing Act.<br />
5. The fact that the clauses in the draft constitution were approved by the National Assembly which is the people’s<br />
representative was a clear indication that the view and aspirations of the <strong>Kenya</strong>n people were fully catered for by the<br />
CoE. If not so, the people of <strong>Kenya</strong> would give a clear answer to the petitioners on the issue in the Referendum.<br />
6. The IICDRC had no mandate to rectify the draft constitution. <strong>Issue</strong>s of content and fundamentals in the draft<br />
constitution were not matters within the mandate of the IICDRC and consequently, it could not rule on the legality of<br />
clauses in contention of the proposed constitution.<br />
7. The court found that the petitioner had not delayed inordinately to have their matter dismissed as the petitioners<br />
filed their petition about 3 months after the rules of the court had been developed and about 6 months when the court<br />
was set up. Such a period could not have been said to be a long delay.<br />
8. The proposed constitution recognized the provisions of the National Accord and the Prime Minister’s office. Article<br />
31(1) and (2) confirmed the fact that the Prime Minister would continue to hold that office and therefore the Prime<br />
Minister would have been effectively in office on the effective date when the constitution came into place and to that<br />
extent, there would have been no constitutional crisis.<br />
9. There was no lacuna where an oath was to be taken by the constitutional office holders and there were no provisions<br />
that could have been used to cure what may have seemed to others to have been a lacuna in law.<br />
10. The constituent power to accept or reject the proposed constitution was in the hands of <strong>Kenya</strong>ns to determine<br />
their constitution.<br />
11. There was no valid reason for the court to interfere or supervise the organs of review.<br />
12. No case had been proved against the Attorney General who was the 1st respondent.<br />
Petition dismissed.<br />
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Promulgation of new Constitution: Application challenging referendum results and the planned<br />
Mary Ariviza and another v Interim Independent Electoral Commission of <strong>Kenya</strong> & 3 others [2010] eKLR<br />
Constitutional Petition No. 7 of 2010<br />
The Interim Independent Constitutional Dispute Resolution Court at Nairobi<br />
V. Mavisi, S. ole Kantai, S. N. Mukunya, S. Omondi & J. Mohamed JJ.<br />
August 26, 2010<br />
Reported By Njeri Githang’a<br />
Constitutional <strong>Law</strong> - referendum-challenges to the referendum results-application to quash a gazette notice on referendum<br />
results-application on the ground they were not published according to the law-prayer to prohibit the promulgation of the<br />
proposed Constitution of <strong>Kenya</strong>- argument that the process of promulgating the ratified Constitution ought to have been<br />
stopped as per section 43(3) of the CKRA until such petition was finally disposed off according to Section 44 of the CKRAwhether<br />
the gazzettement of the referendum results by the 1st respondent on had been improper and illegal- whether<br />
the court could grant the orders sought- Constitution of <strong>Kenya</strong> Review Act (CKRA) sections 43(3) and 44.<br />
Constitutional <strong>Law</strong> - referendum-challenges to the referendum results-when such challenges are to be brought-service of<br />
petition on respondent-time within which to effect service- security for costs-time within which to deposit the security for<br />
costs- effect of a petition where security for costs is not paid- whether the petition had to be dismissed- Interim Independent<br />
Constitutional Dispute Resolution Court (Practice and Procedure) Rules 2010, rule 9- Constitution of <strong>Kenya</strong> Review Act<br />
Sections 44(3) & (4).<br />
Constitutional <strong>Law</strong> - Constitution making process-referendum-interpretation of the various provisions of the law on<br />
holding of referendum- publication of results- when results of a referendum become final – whether the law imposed a<br />
duty on the 1st respondent as the statutory body with the duty to publish final results of a referendum to ensure that no<br />
challenge to the results had been filed before publishing the same - Constitution of <strong>Kenya</strong> Review Act Section 43(2) 47 A<br />
(6) and (7) -Referendum Regulations, regulation 36(1)(c).<br />
Constitutional <strong>Law</strong> - Constitution Review process-where the process had a self propelled mechanisms for execution of<br />
the process- duty of the President Under Section 47A (6) and (7) to promulgate the Constitution within 14 days after<br />
publication of the final results of the referendum in the <strong>Kenya</strong> Gazette or the Constitution became law automatically on<br />
the expiration of 14 days-where the provision of the supreme law was binding on the court –whether the court could grant<br />
the remedy sought in the face of the coming into force of the said constitutional provision - Constitution of <strong>Kenya</strong> Review<br />
Act Section 47A (6) and (7).<br />
The petitioner filed the petition on August 19, 2010 to the Interim Independent<br />
Constitutional Dispute Resolution Court (IICDRC) under Section 44 of the<br />
Constitution of <strong>Kenya</strong> Review Act (CKRA) (Act No. 9 of 2008) seeking the<br />
referendum results declared by the 1st respondent to be declared null and<br />
void. The petition was not served on the respondents until August 24, 2010<br />
five days after filing.<br />
The petitioner had at the same time filed a judicial review application before the<br />
High Court on the same issues before the IICDRC. Her application was dismissed<br />
by the High Court for lack of jurisdiction and she subsequently filed a certificate of urgency to the IICDRC seeking to<br />
have the Court suspend the whole of the Gazette Notice purportedly giving the final results of the referendum. She<br />
further sought to suspend the Promulgation of the Constitution until the hearing and determination of the petition.<br />
It was argued by the petitioner that as she had filed the petition on August 19, 2010, the effect of the filing of that<br />
petition was that the process of promulgating the ratified Constitution ought to have been stopped as per section 43(3)<br />
of the CKRA until such petition was finally disposed off according to Section 44 of the CKRA. It was contended that the<br />
gazzettement of the referendum results by the 1st respondent on August 23, 2010 was hence improper and illegal in<br />
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<br />
petitioner urged the court to suspend the Gazette Notice and suspend the promulgation set for the August 27, 2010<br />
pending hearing of the petition.<br />
The petition was opposed by the 1st respondent on the ground that no notice had been given to the 1st respondent<br />
under section 44(2) of the CKRA. The 1st respondent argued that having no notice of any petition published the final<br />
result as per the requirement of Section 43(4) of the CKRA. It was submitted that it was the duty of the petitioner to<br />
serve the 1st respondent and the 4th respondent with the petition. In absence of such service the 1st respondent was<br />
well within its mandate to publish the result.<br />
Advocate for the 4th respondent argued that under Section 44(3) of the CKRA, the petitioners were supposed to deposit<br />
<strong>Kenya</strong> Shillings two (2) million as security for costs within 7 days of filing the petition.<br />
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As per S. N. Mukunya, S. Omondi & J. Mohamed JJ<br />
Held:<br />
1. The petition had been filed on time however service on the respondents had not been effected in goodtime. It was<br />
not enough to say that the matter was in the public domain. It was a legal duty and requirement of the law that anyone<br />
filing a matter in Court had to formally bring the same to the attention of the adverse parties; in the case in question,<br />
the respondents. The law regarding service was quite clear and it was not for the respondents to go to Court and find<br />
out whether a petition had been filed.<br />
2. The 1st respondent had an equal duty to see to it that it complied with the law and published the final result after<br />
14 days or soon thereafter as was required by the law.<br />
3.In a Constitutional matter where time was of the essence, it was the party that approached the Court for a<br />
Constitutional remedy to make sure that the adverse party was served as quickly as was practicable, more so where<br />
time for doing an act was limited by statute. Time frames for both the petitioner and the 1st Respondents were running<br />
concurrently. The respondents had no formal notice of filing of the Petition and consequently it was well within their<br />
mandate to publish the final results.<br />
4. For a referendum petition to be filed and be ready for hearing, the petitioner was required to pay two million<br />
shillings as Court filing fees under rule 9 of the Interim Independent Constitutional Dispute Resolution Court (Practice<br />
and Procedure) Rules 2010 within 7 days after the petition was made. Section 44(4) of the CKRA, provided that if<br />
security was not given in accordance with section 44 (3) of the CKRA the petition had to be dismissed. By the time the<br />
ruling was being written, no money had deposited with the Court. That therefore meant that by operation of law, the<br />
petition could only be active if the <strong>Kenya</strong> shillings two (2) million was paid by the close of business that day.<br />
5. Under section 47 A(6) of the CKRA, the President was mandated not later than 14 days of the publication of final<br />
result of the referendum to promulgate and publish the text of the new ratified Constitution in the <strong>Kenya</strong> Gazette failure<br />
to which the Constitution promulgates itself automatically. The Court had no jurisdiction to challenge or change the<br />
provisions of the Constitution under section 47 A (6).<br />
As per V. Mavisi & S. ole Kantai JJ<br />
Held:<br />
1. The IIEC was duty bound under Section 43 of the Act to publish interim or provisional results within 2 days of the<br />
holding of a referendum which was done on August 6, 2010.<br />
2. If a petition challenging the conduct or result of the referendum was filed on time, the petitioner was duty bound<br />
under Section 44 of the Act to give Notice to the Attorney General and the IIEC within seven days after the Petition was<br />
made. And if a petition was filed on time and a Notice served in accordance with the said provision on the Attorney<br />
General, the Attorney General had to publish a Notice of each petition of which notice was received within seven days<br />
of the expiry of the period prescribed in subsection (1).<br />
3. A petitioner who filed a petition within time had to deposit security for costs within seven days after the petition<br />
was made<br />
4. The petition had been filed within the 14 days period envisaged in law and Notice of such petition was to be served<br />
on the 1st and 4th respondents 7 days after the filing of the petition. The petitioner under the Constitution of <strong>Kenya</strong><br />
Review Act had a 7 day window to serve the petition and/or notice.<br />
5. Interim or provisional results could not become final until all challenges to the conduct or results of the referendum<br />
which were filed within the time limited for filing such challenges (14 days under Section 43 (3) of the Act) were heard<br />
and determined.<br />
6. The law imposed a duty on the 1st respondent as the statutory body with the duty to publish final results of a<br />
referendum to ensure that no challenge to the results had been filed before publishing the same. The legislature created<br />
14 days for challenges to be filed and if such challenges were filed, the 1st respondent could not publish final result<br />
until challenges were heard and determined.<br />
7. A petitioner who filed a petition within time had to serve a notice on the 1st and 4th respondents 7 days after filing<br />
the 1st respondent could not therefore in law publish final results without establishing, in a formal way with the court<br />
established to deal with such challenges, that no challenges had been filed and if challenges had been filed that the same<br />
had been heard and determined. That was the full purport and meaning of Sections 43 and 44 of the Constitution of<br />
<strong>Kenya</strong> Review Act. The Constitution of <strong>Kenya</strong> Review Act therefore created a responsibility on the part of the Interim<br />
Independent Electoral Commission and the Attorney General to establish that there were no challenges before final<br />
results could be published in the Gazette.<br />
8. The allegation by the respondents that they were not served with petition or Notice by 20th August 2010 was<br />
misplaced and misadvised. The petitioner’s responsibility was to serve a notice and/or the petition within 7 days of<br />
filing of the petition. That was distinguished from the ordinary litigation or electoral petitions where a petitioner had<br />
a primary responsibility of service. The filing of the petition in question had even been brought to the respondents’<br />
attention in court during the hearing of IICDRC No. 6 of 2010.<br />
9. Publishing of Gazette Notice 10019 by the 1st respondent had been done in terms of Section 47 A (7) of the<br />
Constitution, Section 43(2) of the Constitution of <strong>Kenya</strong> Review Act and Regulations 36(1)(c) (Referendum) Regulations<br />
which provided that “Subject to any provisions in the New Constitution relating to its commencement, and not<br />
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withstanding anything to the contrary in this Constitution, the New Constitution shall become law and have effect<br />
when the New Constitution is published under subsection (6), on or the expiry of a period of 14 days from the date of<br />
the publication of the final results of the referendum in the <strong>Kenya</strong> Gazette, whichever is the earlier.”<br />
10. The date of promulgation of the new Constitution had been arranged for August 27, 2010 which had been set<br />
and announced even before the time allowed in law for lodging challenges had expired. The 4th respondent ought to<br />
have given sound advice to the Executive not to take such hasty steps which would lead to an abuse of the law and the<br />
legal process.<br />
11. The Constitution Review process had a self propelled mechanisms for execution of the process. The court was<br />
a creature of Section 60A of the Constitution. None of the provisions of the Constitution were superior to others. The<br />
Constitution as Supreme law was a wholesome document and operated through all the provisions and not one.<br />
12. Under Section 47A (6) and (7) , once the final results of the referendum were published in the <strong>Kenya</strong> Gazette, the<br />
President had to promulgate the Constitution within 14 days thereof or the Constitution became law automatically on<br />
the expiration of 14 days. That provision of the supreme law was binding on the court and it had to abide by it. Although<br />
the petitioners complied with the provisions of the Constitution of <strong>Kenya</strong> Review Act, the court could not grant the<br />
remedy sought in the face of the coming into force of the said constitutional provision.<br />
Petition dismissed<br />
1. The National Council for <strong>Law</strong><br />
Reporting is proud to introduce the<br />
KLR Monthly - a monthly digest of<br />
the judicial opinions of the superior<br />
courts of record.<br />
2. The publication of the KLR<br />
Monthly is the Council’s response to<br />
the need to provide you with timely<br />
access to contextually relevant case<br />
law information. While the publication<br />
of the full text of the judicial opinions<br />
on the Council’s website answers to<br />
the broader ‘content - is-king’ refrain<br />
of legal information publishing, with<br />
KLR Monthly, context is king: it will<br />
be platform on which the place of the<br />
judicial opinions in the larger body<br />
of existing judicial precedent will be<br />
defined and contextualised in the form<br />
of digests and abstracts capturing<br />
pertinet issues of jurisprudence.<br />
3. KLR Monthly will not be a substitue<br />
to but rather a build up towards<br />
the compilation of the hard - bound<br />
annual edition of the <strong>Kenya</strong> <strong>Law</strong><br />
<strong>Reports</strong>.<br />
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<strong>Law</strong> Reform and Emerging Jurisprudence<br />
JURISPRUDENTIAL ISSUES ARISING IN THE JULY – DECEMBER 2010 PERIOD<br />
By Nicholas Okemwa<br />
Mr. Nicholas Okemwa, Snr. <strong>Law</strong> Reporter, Head of R & D<br />
Department<br />
(S. N. Mukunya, J. Mohammed, S. Omondi, S. Kantai, M. N. Kioga (JJ)<br />
June 25, 2010 (Reported on page 79 above)<br />
The Research and Development Department is tasked<br />
amongst other things to monitor and track frontier and<br />
emerging issues in <strong>Kenya</strong>n, regional and international<br />
jurisprudence. To this end, at the end of every quarter<br />
the R&D Department prepares a synopsis of<br />
jurisprudential issues that arise from the superior<br />
courts of record. The following are some of the<br />
interesting issues that were canvassed by the courts<br />
during the period.<br />
Right of prisoners to vote in a referendum for a new<br />
constitution<br />
Priscilla Nyokabi Kanyua v Attorney General & Interim<br />
Independent Electoral Commission (2010 eKLR)<br />
Constitutional Petition No. 1 of 2010<br />
Interim Independent Constitutional Dispute Resolution<br />
Court (IICDRC) at Nairobi<br />
Suffrage is the civil right to vote, or the exercise of that right. In that context it may also be referred to as political<br />
franchise or simply the franchise. There are several types of suffrage but the most commonly known is the universal<br />
suffrage. Universal suffrage is a counterintuitive term that does not actually apply to all citizens or residents of a region,<br />
but the extension of voting privileges is given without distinction to race, sex, belief, or social status. Distinctions are<br />
frequently made in regard to age, and occasionally mental capacity or conviction record.<br />
The right of prisoners to participate in public life through voting is an issue that is currently under debate in several<br />
jurisdictions particular in “the developed world.” Many countries particularly in Africa and Asia, have disenfranchisement<br />
of sentenced prisoners. The guiding principle behind this is that it reflects society’s rejection of serious crime and<br />
safeguards the social contract and rule of law.<br />
Article 25 of the International Covenant on Civil and Political Rights (ICCPR) explicitly extends the right to vote to “every<br />
citizen,” and calls for “universal and equal suffrage.” General Comment 25 to the ICCPR clarifies that “if conviction for<br />
an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the<br />
offence and the sentence.”<br />
However, the Human Rights Council which is the inter-governmental body within the UN system made up of 47 States<br />
responsible for strengthening the promotion and protection of human rights around the globe, has stated that depriving<br />
persons who have been convicted of a felony of the right to vote does not meet the obligations in article 25 of the ICCPR<br />
nor does it serve the rehabilitation goals of article 10(3) of the Covenant.<br />
In Africa, South African courts have ruled that the disenfranchisement of prisoners is a violation of South African law<br />
and international law, and that the State has a positive obligation to enable its prisoners to vote. In August v. Electoral<br />
Commission and Others (CCT8/99) [1999] ZACC 3, the Constitutional Court confirmed that the unqualified right for<br />
every citizen to vote imposes positive obligations upon the government to make reasonable arrangements for prisoners<br />
to vote. Then, in 2004, in Minister of Home Affairs v. National Institute for Crime Prevention and the Re-Integration of<br />
Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10, the Constitutional Court reaffirmed its holding in August.<br />
It ruled that depriving the right to vote from prisoners who are serving a sentence without the option of paying a fine<br />
instead was not acceptable without a compelling justification.<br />
In <strong>Kenya</strong>, the National Elections and Presidential Election Act specifically excludes prisoners from participating in<br />
elections. However, does this include the right to vote in referenda? This was the issue that the Interim Independent<br />
Constitutional Dispute Resolution Court grappled with in the case of Priscilla Nyokabi Kanyua v Attorney General &<br />
another [2010] eKLR. The court therein distinguished between referenda and elections. It held that a referendum was<br />
clearly distinct from National Assembly and Presidential Elections. A referendum only comes and applies when the<br />
Constitution is to be made, altered, or replaced. It stated that from the wording of section 47 A (2)(a) of the Constitution<br />
( now repealed) it was quite clear that the right to replace the Constitution with a new one vests collectively on the<br />
people of <strong>Kenya</strong> through a referendum. The court relied on the decision of Njoya & 6 Others V Attorney General & 3<br />
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Others (No 2) [2004] 1 KLR which stated that the people’s constituent power was above the Constitution itself and the<br />
exercise of the same was through a referendum.<br />
The court in the present case therefore ruled that prisoners constituted the people and could not be disenfranchised<br />
from using their constituent power exercisable only through a referendum except in certain acceptable instances for<br />
instance on account of age, mental faculties and conviction for electoral offences.<br />
Constitutionality of a mandatory sentence of death on a charge of murder<br />
Godfrey Ngotho Mutiso v Republic [2010] eKLR<br />
Criminal Appeal 17 of 2008<br />
Court of Appeal at Mombasa<br />
R. S. C. Omolo, P. N. Waki & J. W. Onyango Otieno, JJA<br />
July 30, 2010<br />
(Reported on page 45 above)<br />
The death penalty is a subject that, in the words of Justice Adrian Saunders of the Eastern Caribbean Court of Appeal,<br />
“invariably elicits passionate comment.”’ The imposition of capital punishment by State is a highly emotive issue<br />
especially amongst human rights activists across the globe. There is an emerging international consensus on excluding<br />
the use of the death penalty. The UN General Assembly adopted a resolution in December 2007 calling for a worldwide<br />
moratorium on executions. Although <strong>Kenya</strong> abstained from voting, the resolution was adopted by an overwhelming<br />
majority of 104 UN member states in favour, 54 countries against, and 29 abstentions.<br />
However, in <strong>Kenya</strong> the abolishment of capital punishment has not really been debated in the public fora. According to<br />
the Committee of Experts on Constitutional Review, members of the public did not present views that were opposed<br />
to the imposition of the death penalty and therefore did not exclude the same from the draft Constitution ( as it then<br />
was) presented to the Parliamentary Select Committee. The recently promulgated Constitution of <strong>Kenya</strong> does not<br />
prohibit capital punishment.<br />
The Court of Appeal in Godfrey Ngotho Mutiso v Republic [2010] eKLR however was not faced with the issue of the<br />
legality or constitutionality of the death penalty. The issue before court was whether it was constitutional to impose<br />
a sentence of death without considering mitigating circumstances of the commission of the offence and the offender.<br />
The Penal Code section 204 provided for a mandatory death sentence for the offence of murder.<br />
This issue as the Court of Appeal noted was not peculiar to <strong>Kenya</strong>. Indeed, the mandatory death penalty is a colonial<br />
legacy. Under the common law of England, death was the only sentence that could be pronounced by a judge upon a<br />
defendant who was convicted of murder, regardless of the nature of the offense or the particular circumstances of the<br />
offender. Through colonialism, this simple and undiscriminating rule was applied to many of Britain’s colonies, and<br />
upon independence, the many nations of the Commonwealth including <strong>Kenya</strong> preserved the rule that was in place as<br />
part of their colonial inheritance.<br />
Closer home, Uganda has similar provisions and its Constitutional Court in Susan Kigula & 416 others vs. A.G<br />
(Constitutional Petition No. 6 of 2003) held that mandatory application of the death penalty was unconstitutional even<br />
though the death penalty itself was constitutional. This decision upheld and affirmed by the Supreme Court.<br />
The <strong>Kenya</strong>n Court drew reference to the Ugandan case and held that the imposition of a mandatory death penalty was<br />
indeed unconstitutional. It held that mandatory requirement of the death penalty was in violation of the Constitutional<br />
provisions by not allowing for indivualised consideration of the offender and the commission of the offence.<br />
The Court also considered the length of time served by the convicts sentenced to death. It opined that the delay in<br />
execution of prisoners who have been on death row for a long period of time was inconsistent with constitutional<br />
provisions and remarked that it was a pity that such matter had never been raised before the court. In Uganda, the<br />
Constitutional Court in Kiguta had held that a period of more than three years from the time when the death sentence<br />
was confirmed by the highest appellate court would constitute inordinate delay.<br />
Discretion of the Attorney General to represent a public corporation or public officer<br />
Joseph Nathaniel Kipruto arap Ng’ok v Attorney General & another [2010] eKLR<br />
Civil Appeal No. 326 of 2005<br />
Court of Appeal at Nairobi<br />
S. E. O. Bosire, E. M. Githinji & J. G. Nyamu, JJA<br />
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July 2, 2010 Court of Appeal at Nairobi<br />
(Reported on page 39 above)<br />
The Attorney General is the principal legal advisor to the Government and undertakes civil litigation involving<br />
government and its agencies amongst other roles. State corporations are legal entities that have capacity to sue and<br />
be sued. The general thinking was that being bodies corporate, the Attorney General could not act as counsel for them.<br />
However, the Court of Appeal in Joseph Nathaniel Kipruto arap Ng’ok v Attorney General & another [2010] eKLR ruled<br />
that the AG has discretion to appear as counsel for any public body even though it is a body corporate. Further, it held<br />
that the AG could appear for any public officer even though the officer is sued in a private capacity. The Court also<br />
disambiguated the power of the Attorney General to bring civil proceedings and his discretion to represent a party in<br />
such proceedings.<br />
Jurisdiction of the Interim Independent Constitutional Dispute Resolution Court vis a vis High Court of <strong>Kenya</strong><br />
Bishop Joseph Kimani & 20 others v The Attorney General, COE & PSC [2010] Eklr<br />
Constitutional Petition No. 4 of 2010<br />
Interim Independent Constitutional Dispute Resolution Court at Nairobi (IICDRC)<br />
V. K Mavisis. N. Mukunya & S. Ole kantai JJ.<br />
August 2, 2010<br />
(See page 96 above)<br />
The Interim Independent Constitutional Dispute Resolution Court (IICDRC) is based on the notion of constitutional<br />
court to be found in such European courts as Germany, Italy, and France and also in the Republic of South Africa.<br />
However, in the <strong>Kenya</strong>n situation it exists for a limited period and is mandated to deal with only matters arising out<br />
of the constitutional review process. It was established by the Constitution of <strong>Kenya</strong> (Amendment) Act No. 10 of 2008<br />
by inserting section 60A into the constitution (now repealed).<br />
Several cases examined the jurisdiction of the High Court relating to the constitutional review process. In Bishop Kimani<br />
& others vs the Attorney General the High Court stated that it had jurisdiction to matters pertaining to the constitutional<br />
review process since the IICDRC had not been set up then. However, after the court had been constituted, the High<br />
Court has ruled that it lacked jurisdiction to entertain matters pertaining to the constitutional review process. In<br />
Mary Arivisa v Interim Independent Electoral Commission & another High Court stated that section 60A completely<br />
removed the constitutional review process from the ambit of the High Court including judicial review powers donated<br />
to it under the <strong>Law</strong> Reform Act.<br />
The Political Question Doctrine<br />
Alice Waithera Mwaura and 12 Others v the Committee of Experts and Two Others<br />
Constitutional Petition No. 5 of 2010<br />
The Interim Independent Constitutional Dispute Resolution Court at Nairobi (IICDRC)<br />
S. Omondi, J. Mohamed and M. Kioga JJ.<br />
August 2, 2010<br />
(see page 81 above)<br />
It is part of the broader concept of justiciability—the issue of whether a matter is appropriate for court review.<br />
Appropriate matters are called justiciable controversies and may proceed to court. Political questions are not regarded<br />
as appropriate matters; they are not justiciable and, generally, will be dismissed. Matters that fall under this doctrine<br />
include issues that Constitution has committed decision-making on the particular subject to another branch of the<br />
government for instance treaty making; there are inadequate standards for the court to apply; or the court feels it is<br />
prudent not to interfere.<br />
In Marbury v. Madison 5 U.S. (1 Cranch) <strong>13</strong>7, 170 (1803) Chief Justice Marshall stated that the province of the court was,<br />
solely, to decide on the rights of individuals, not to inquire how the Executive, or executive officers, perform duties in<br />
which they had a discretion. Questions in their nature political, or which are, by the Constitution and laws, submitted to<br />
the Executive could never be made in the court.<br />
In <strong>Kenya</strong>, the political question doctrine came into prominence in the case of Patrick Ouma Onyango & 12 others v<br />
Attorney General & 2 others [2005] eKLR<br />
where the court stated that a court of law had no authority to stop the adoption or rejection at a referendum of a<br />
constitutional proposal on the basis that one or the other of the draft proposals were altered or mutilated since the<br />
court was not equipped to prefer any of the set of proposals and drafts that being substantially a political process.<br />
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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<br />
or make an order between Parliament and the referendum process as that would amount to a judicial body issuing<br />
rulings on political instead of legal issues. That where the court attempts to stop the referendum would amount to a<br />
judicial coup detat on people’s constituent power.<br />
Calculation of Damages by a Deputy Registrar<br />
<strong>Kenya</strong> Revenue Authority v Menginya Salim Murgani<br />
Civil Appeal No. 108 of 2009<br />
R S C Omolo,P N Waki & J G Nyamu JJ A.<br />
Court of Appeal, at Nairobi<br />
July 16, 2010.<br />
(see page 41 above)<br />
A three-judge bench of the Court of Appeal has stated that the calculation of damages is a judicial function as opposed to<br />
a ministerial function and therefore could not be delegated to a deputy registrar. This was in the case of <strong>Kenya</strong> Revenue<br />
Authority v Menginya Salim Murgani [2010] eKLR.<br />
Applicability of Mutual Legal Assistance (MLA)<br />
<strong>Kenya</strong> Anti-Corruption Commission v First Mercantile Securities Corporation<br />
Civil Appeal No. 194 of 2008<br />
R S C Omolo,S E O Bosire & P N Waki JJ A.<br />
Court of Appeal, at Nairobi<br />
July 16, 2010.<br />
(see page 40 above)<br />
MLA is the formal way in which countries request and provide assistance in obtaining evidence located in one country<br />
to assist in criminal investigations or proceedings in another country.<br />
In <strong>Kenya</strong> Anti-Corruption Commission v First Mercantile Securities Corporation [2010] eKLR the Court of Appeal<br />
dealt with the issue whether the <strong>Kenya</strong> Anti-Corruption Commission (KACC) could apply for mutual legal assistance.<br />
The court held that section 23(1) of Economic Crimes and Anti- Corruption Act granted KACC the power to seek MLA<br />
from any foreign body or government.<br />
Granting of Bail to Persons Charged with Capital Offences<br />
Republic v Danson Mgunya and Another<br />
Criminal Case No. 26 of 2008<br />
High Court of <strong>Kenya</strong> at Mombasa<br />
Mohammed Ibrahim J<br />
October 15, 2010<br />
(See page 73 above)<br />
Prior to 1987 all offences were bailable. By amendments to section 123 of the CPC Parliament created non-bailable<br />
offences namely murder, robbery with violence and attempted robbery with violence. However no constitutional<br />
amendments with regard to bail were made and the constitutional court in Margaret Ngui v Republic [KLR] 1985 held<br />
that the said sections were inconsistent with the constitution and declared them null and void. Subsequently section<br />
72(5) of the previous Constitution was amended to prohibit the grant of bail in offences punishable by death.<br />
The Constitution of <strong>Kenya</strong> 2010 does not prohibit bail to any class of offences. The High Court in Republic v Danson<br />
Mgunya & another [2010] eKLR held that bail was an inalienable right that and could only be restricted by the court<br />
if there were compelling reasons for one not to be released. It took the position that once an accused person applied<br />
for bail in a murder case, the same principles and consideration in bail applications in respect of any other criminal<br />
offences should be applicable. The primary consideration was whether the accused person shall attend court and be<br />
available at the trial.<br />
94 <strong>Issue</strong> <strong>13</strong>: July-December 2010
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<strong>Law</strong> Reform and Emerging Jurisprudence<br />
Efficacy of an Election Petition Appeal where the Speaker <strong>Issue</strong>s a Writ<br />
Ali hassan Abdirahman v Mahamud Muhumed Sirat & 2 others<br />
Civil Appeal No 26 of 2010<br />
Court of Appeal at Nairobi<br />
Githinji, Waki & Viram JJ A<br />
October 12, 2010<br />
(see page 51 above)<br />
Although the court was not called upon to decide upon it, the Court of Appeal in Ali Hassan Abdirahman v Mahamud<br />
Muhumed Sirat & 2 Others [2010] eKLR noted that the situation was unclear regarding section 23 (4) of the National<br />
Assembly and Presidential Elections Act which allowed for an appeal against the decision of the election court whether<br />
such an appeal would still be efficacious once the writ has been issued by the Speaker.<br />
Jurisdiction of <strong>Kenya</strong>n courts to try for the offence of piracy on the high seas<br />
Offences repealed without a saving clause<br />
Republic v Chief Magistrates Court Mombasa ex parte Mohamud Mohamed Hashi Alias Dhodi & 8 others [2010] eKLR<br />
Misc. Application No 434 of 2009<br />
High Court, at Mombasa<br />
Ibrahim J<br />
November 9, 2010<br />
(see page 76 above)<br />
As Ibrahim J notes in his judgment in this case, ‘the question of jurisdiction to try [piracy] cases by the <strong>Kenya</strong>n Courts<br />
has not been the subject of much judicial interpretation and very few cases are reported on the subject’. The question<br />
that the Court was considering arose from an interpretation of two statutory provisions. Whereas section 5 of the Penal<br />
Code provides that ‘the jurisdiction of the Courts of <strong>Kenya</strong> for the purpose of this Code extends to every place within<br />
<strong>Kenya</strong>, including territorial waters’, and section 69 provided that ‘any person who, in territorial waters or upon<br />
the high seas, commits any act of piracy gentium is guilty of the offence of piracy. (emphasis supplied). To the extent<br />
that the term ‘high seas’ was only included in section 69 and not section 5 which defined the jurisdiction of <strong>Kenya</strong>’s<br />
courts, did the courts have jurisdiction to try suspects for the offence of piracy where that offence was committed on<br />
the high seas?<br />
The court observed that the tern ‘the High Seas’ is not defined in the repealed Merchant Shipping Act, the Penal Code<br />
or even the interpretation and General Provisions Act. In the Court of found that the High Seas are not and cannot<br />
be a place in <strong>Kenya</strong> or within the territorial waters of <strong>Kenya</strong>. By definition they are strictly deemed to be outside the<br />
jurisdiction of all states in the world or on earth unless some law in the state brings it into their local jurisdiction<br />
whether Municipal <strong>Law</strong> or an International Convention etc.<br />
This Court further found that section 69(1) of the Penal Code was inconsistent with Section 5 of the Penal Code to<br />
the extent that it included “the High Seas” in respect of where the acts of piracy gentium are committed. It is section<br />
5 which donates to or confers on the <strong>Kenya</strong>n court jurisdiction over matters under thePenal Code. It is the defining<br />
provision with regard to the jurisdiction of the <strong>Kenya</strong>n Courts in so far as the Penal Code is concerned. Section 5 is<br />
juridically paramount to and overrides Section 69 (1) to the extent of this inconsistency.<br />
Therefore, the Court ruled that a natural and ordinary interpretation of Section 5 of the Penal Code is that the Magistrate’s<br />
Court lacked jurisdiction to try the Applicants in this case in respect of the charge of piracy on the high seas under<br />
section 69 (1) of the Penal Code.<br />
Offences repealed without a saving clause<br />
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<br />
or omission whatever the case may be. In the case of a repealed statute/section of the law, the drafters more often than<br />
not provide a saving clause or transitional provisions that limit the scope of such repeal usually providing that the said<br />
sections shall continue to apply to cases initiated under the same.<br />
In the same case, the effect of lack of succinct transitional provisions was brought out. Nine accused persons were<br />
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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,<br />
the section was repealed by the Merchant Shipping Act of 2009 which, among other sections, contained a provision<br />
creating the offence of piracy. There were no saving clauses. The court took the view that upon repeal, a section of law<br />
ceased to exist and no offence could be created under the (non-existent) section. Consequently no court could convict<br />
or sentence on the basis of the repealed section. Similarly, the court took the view that the accused persons could<br />
not be re-arrested and charged afresh under the Merchant Shipping Act, 2009 as the offences with which they would<br />
have been subsequently charged with would be deemed to be ex post facto crimes which were prohibited under the<br />
<strong>Kenya</strong>n Constitution.<br />
Separation of Powers and Parliamentary Privilege<br />
Bishop Joseph Kimani & 20 others v The Attorney General, COE & PSC [2010] Eklr<br />
Constitutional Petition No. 4 of 2010<br />
Interim Constitutional Dispute Resolution Court at Nairobi (IICDRC)<br />
V. K Mavisis. N. Mukunya & S. Ole kantai JJ.<br />
August 2, 2010<br />
Reported By Njeri Githang’a<br />
The petitioners, officials of Mombasa Pastors Fellowship, had filed a petition in the Interim Constitutional Dispute<br />
Resolution Court (IICDRC) against the Chairman, Parliamentary Select Committee on Constitution Review as the 3rd<br />
respondent.<br />
The 3rd respondent opposed the petition on the ground that Court had no jurisdiction to hear a suit filed against<br />
the Chairman Parliamentary Select Committee in respect of either his own act or acts of a Committee in exercise<br />
of the powers conferred and vested by the Constitution of <strong>Kenya</strong>, any legislation and the Standing Orders as it had<br />
parliamentary privilege. The issue was whether the suit against under the 3rd respondent, one of the Constitution<br />
Review organs, was sustainable.<br />
Sections 56 and 57 of the Constitution and Section 29 of the National Assembly (Powers and Privileges) Act granted<br />
privilege to Parliament, its members and Committees who could not be sued for words spoken or actions taken in an<br />
official capacity. That essentially meant that the Parliamentary Select Committee which was one of the review organs<br />
through which the constitution review process was to go through could not be sued.<br />
The court observed that “The framers of the Constitution Review Act left a lacuna in law, which may cause injustice.<br />
Parliament may consider giving a fresh look to the said provision. “<br />
A screen grab of The <strong>Kenya</strong> <strong>Law</strong><br />
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Facebook.<br />
The <strong>Kenya</strong> <strong>Law</strong> <strong>Reports</strong> Group is<br />
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A screen grab of The <strong>Kenya</strong> <strong>Law</strong><br />
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running on the KLR profile on<br />
the popular video-sharing website,<br />
Youtube<br />
The profile address is<br />
www.youtube.com/kenyalawreports<br />
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16. Registration of Titles Act Cap. 281<br />
17. Rent Restriction Act Cap. 296<br />
18. Sectional Properties Act No. 21 of 1987<br />
19. Stamp Duty Act Cap. 480<br />
20. The Survey Act Cap. 299<br />
21. Transfer of Property Act Group 8<br />
22. Trespass Act Cap. 294<br />
23. Trust Land Act Cap. 288<br />
24. Trusts of Land Act Cap. 290<br />
25. Wayleaves Act Cap. 292<br />
and<br />
Sessional Paper on the National<br />
Land Policy No. 3 of 2009<br />
2006 & 2009<br />
KLR VOLUMES<br />
The National Council for <strong>Law</strong> Reporting<br />
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Tel: (+254) (020) 271 27 67, 271 92 31<br />
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www.kenyalaw.org<br />
Email: info@kenyalaw.org<br />
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TRANSFORMING THE OFFICIAL LEGAL LAW REPORTS INFORMATION OF THE INTO REPUBLIC OF KNOWLEDGE<br />
KENYA