Bench Bulletin - Issue 12 - Kenya Law Reports

The Bench Bulletin 

A publication of The National Council for Law Reporting 

The Bench Bulletin is the definitive intelligence briefing for 

Kenya’s judicial officers, the law practitioner, managers 

and the business people. It is a quarterly digest of recent 

developments in law, particularly, case law, new legislation in 

the form of Acts of Parliament, rules and regulations, pending 

legislation contained in Bills tabled before Parliament and 

selected Legal Notices and Gazette Notices. 

Issue 12: April-June 2010 

Farewell To Mrs. Gladys Boss Shollei 

NCLR Moves Towards Paperless Office Environment 

NCLR Strategic Planning Retreat 

Judicial Opinions 

Legislative Update 

Issues For Law Reform From The Bench 

The National Council for Law Reporting - The Official Law Reporter of the Republic of Kenya

Thanks to all Our Partners

KENYA LAW REPORTS 

BENCH BULLETIN 

The Hon. Mr. Justice J. E. Gicheru, EGH, 

Chief Justice of Kenya, Chairman 

THE NATIONAL COUNCIL FOR LAW 

REPORTING 

MEMBERS 

The Hon Mr. Justice Johnson Evan Gicheru, EGH 

Chief Justice, Chairman 

The Hon Mr Justice P. K. Tunoi 

Judge of the Court of Appeal 

The Hon Lady Justice J. W. Lesiit 

Judge of the High Court 

Mrs L. A. Achode 

Registrar, High Court of Kenya 

Dr. Ben Sihanya 

Dean, School of Law, University of Nairobi 

Mr. Antony Oteng’o Ombwayo 

Attorney-General’s Representative 

Mr. Zablon M. O. Kona 

Government Printer’s Representative 

Mr. Evans Monari 

Law Society of Kenya 

Ms Florence Muoti Mwangangi 

Law Society of Kenya 

Mr. Kennedy Nyambati 

Inspectorate of State Corporations 

Mr. Michael M. Murungi 

Ag. Editor/C.E.O 

Table of Contents 

1. The Council Members........................ 1 

2. The Inbox................................................. 2 

3. Cases Reported...................................... 3 

4. Digest of Cases Featured................... 4 

5. Ag. Editor’s Note .................................15 

6. Farewell Luncheon ............................16 

7. Departmental Reports .....................17 

8. Feature case ......................................... 29 

9. From the Courts.................................. 35 

10. Issues for Law Reform................... 79 

11. Legislative Update........................... 82 

12. Legal Notices & Bills....................... 84 

EDITOR 

Michael Murungi 

EDITORIAL ASSISTANT 

Esther Nyaiyaki 

CONTRIBUTORS 

Michael Murungi 

Esther Nyaiyaki 

Ann Asugah 

Monica Achode 

Nicholas Okemwa 

Cornelius Lupao 

Andrew Halonyere 

Njeri Githang’a Kamau 

Nelson Tunoi 

DESIGN AND LAYOUT 

Catherine Moni 

Andare Geoffrey 

Contacts 

Milimani Commercial Courts 

Ground Floor, Ngong Road 

Email: info@kenyalaw.org 

Tel: (+254) (020) 271 27 67, 271 92 31 

Fax: (+254) (020) 2712694 

NAIROBI, KENYA 

www.kenyalaw.org 

Facebook: Kenya Law Reports 

www.youtube.com/kenyalawreports 

Disclaimer: While the National Council for Law Reporting has made every effort to ensure both the accuracy and 

comprehensiveness of the information contained in this publication, the Council makes no warranties or guarantees 

in that respect and repudiates any liability for any loss or damage that may arise from an inaccuracy or the 

omission of any information. 


1



THE INBOX 

‘The new-look Bench Bulletin is really good. You have greatly 

improved it.’ 

Mr. Justice S.E.O. Bosire, Judge of Appeal 

‘Thank you very much for the [Bench Bulletin edition of January 

– March 2010). It is definitely a fine product in its look, content 

and presentation’ 

Mr. Justice J.W. Mwera, Judge of the High Court 

‘I have to congratulate you for publishing a soft copy of the Laws 

of Kenya Grey Book on CD-ROM. Now as I type my judgments, I 

don’t have to get up from my desk to refer to the bookshelf. All 

I do is cut and paste [the text of the legislation].’ 

Lady Justice M. Koome, Judge of the High Court 

‘Thank you for the Bench Bulletin [Jan-March Edition] and the 

CD-ROM of the Laws of Kenya Greybook. Very good products. 

Please include a revised version of the National Assembly and 

Presidential Elections Act (Cap. 7) in the revised statutes.’ 

Mr. Justice D.K. Maraga, Judge of the High Court 

‘Congratulations and thank you for the new look Bench 

Bulletin (Jan-March 2010 edition). It looks very colourful and 

professionally done.’ 

Lady Justice J. Gacheche, Judge of the High Court 

‘Thank you for your new Bench Bulletin magazine and the CD- 

Rom of the KLR Laws of Kenya Grey Book. May I congratulate 

you for this good initiative and for a job well done’ 

Mr. Jusitce P. Kihara Kariuki, Judge of the High Court 

‘Thank you so much for the excellent new look Bulletin Magazine 

and CD. Keep up the good work’ 

Lady Justice H.A. Omondi, Judge of the High Court 

2 

Issue 12: April-June 2010



CASES REPORTED 

COURT OF APPEAL 

Chris Kasamba Karani v Republic Criminal Appeal No. 26 of 2008 ................................................................................................................ 46 

David Njuguna Wairimu v David Njuguna Wairimu Criminal Appeal no. 28 of 2009 ................................................ 37 

Dennis Muthee Chokera v Republic Criminal Appeal No. 487 of 2007 .............................................................................. 35 

Dickson Daniel Karaba v John Ngata Kariuki & 2 others Civil Appeal 125 of 2008 ................................................... 56 

Hunker Trading Company Ltd v Elf Oil Kenya Ltd Civil Application 6 of 2010 ............................................................... 55 

Jackson Kyalo Munge v Republic Criminal Appeal No. 70 of 2007 ......................................................................................... 42 

James Karoki Wangeci v Republic Criminal Appeal 146 of 2008 .......................................................................................... 47 

James Omingo Magara v Manson Onyongo Nyamweya & 2 others Civil Appeal 8 of 2010 ...................................... 49 

Jimi Masege v Kenya Airways Limited Civil Application 63 of 2003 .................................................................................... 41 

Josiah Afuna Angulu v Republic Criminal Appeal No 277 of 2006 ........................................................................................ 44 

Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others Civil Appeal 183 of 2008 ........................ 48 

Kenneth Kiplangat Rono v Republic Criminal Appeal No. 66 of 2009 ................................................................................ 45 

Kenya Breweries Ltd v Godfrey Odoyo Civil Appeal 127 of 2007 ........................................................................................... 53 

Kenya Power and Lightning Company v NMG Company & 3 Others (Interested Parties) Civil Application 

No. Nai 74 of 2010 (UR. 152/2010) ..................................................................................................................................................... 39 

Kingsley Chukwu v Republic Criminal Appeal 257 of 2007 ....................................................................................................... 55 

M.B.O v Republic Criminal Case No 342 of 2008 ............................................................................................................................. 52 

Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another 

Civil Appeal No. 164 of 2002 .................................................................................................................................................................. 42 

Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR Civil Appeal No. 306 of 2004 .............. 36 

Mary Wanjiru Githatu v Esther Wanjiru Kiarie Civil Appeal 20 of 2009 ........................................................................... 50 

Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd Civil Application 177 

& 178 of 2009 ................................................................................................................................................................................................ 38 

HIGH COURT 

Charles Onyango Oduke & Another v Samuel Onindo Wambi Civil Case No 143 of 2009 ...................................... 66 

Charles Wanjohi Murage v Republic Criminal Appeal 80 of 2007 ......................................................................................... 78 

Farida Abdullahi Ibrahim & 2 others v Gulf Air Limited [2010] Eklr Civil Appeal 95 of 2002 ............................... 76 

Glaxo Group Limited v Syner-med Pharmaceuticals Ltd Miscellaneous Application 792 of 2009 ....................... 75 

Isaiah Gichu Ndirangu v Registrar of Political Parties [2010] eKLR Miscellaneous Application 377 of 2009 70 

Issack Maina Murathe v Jesidah Wanjiru Murathe Civil Appeal No 87 of 2007 ............................................................. 71 

Joseph Mwangi v Republic Criminal Appeal 107 of 2008............................................................................................................ 76 

Josephat Njue Solomon v Republic Criminal Appeal 187 of 2008 .......................................................................................... 60 

Piedmont Investment Limited v Standard Assurance Limited & 2 others Civil Case No 806 of 2003 .............. 69 

Republic v Desmond Mukhaya Mulusa [2010] eKLR Criminal Case 86 of 2007 ............................................................. 61 

Republic v Institute of Certified Public Secretaries of Kenya Ex Parte, Mundia Njeru Geteria Miscellaneous 

Civil Case No.322 of 2008 ......................................................................................................................................................................... 72 

Republic v Peterson Karani Njogu Criminal Case 40 of 2008................................................................................................... 73 

Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR Election Petition 11 of 2008 58 

Wachira Weheire v Attorney-General [2010] eKLR Miscellaneous Civil Case 1184 of 2003 .................................... 67 

William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR Election Petition 10 of 2008 ................................. 63 

Issue 12: April-June 2010 3



DIGEST OF CASES FEATURED 

COURT OF APPEAL 

CHARGE 

Framing of a charge – duplicity in framing of charge – appellant claiming that the addition of the particulars relating to 

the wounding of the complainant in the robbery charge made it duplicitous – charge failing to include the words dangerous” 

and “offensive” to describe the weapons the robbers were armed with – effect of – whether the inclusion of one or more of 

the alternative modes of bringing a robbery charge made it duplicitous 

David Njuguna Wairimu v David Njuguna Wairimu ..................................................................................................................... 37 

Statutory power of sale - sale by public auction-where the suit property was sold to the second respondent through public 

auction-where the purchase price was paid after four days instead of the required 25% at the fall of the hammer and the 

balance within sixty days-whether the auctioneer diligently discharged his duties in exercising his discretion 

Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42 

Statutory power of sale - where the first respondent exercised the statutory power of sale and sold the appellant’s 

property to the second respondent by public auction-whether the first respondent was entitled to exercise the statutory 

power of sale-where the suit property was registered in the second respondent’s name-equity of redemption-whether the 

appellant’s equity of redemption was extinguished 


CIVIL PRACTICE AND PROCEDURE 

Damages - mesne profits-where the second respondent sought the appellant be condemned to pay mesne profits to him for 

the occupation of the suit property-where the suit property was registered under the second respondent’s name-whether 

the second was entitled to the rent for the period of occupation 


Judicial review - leave - application for leave to file for judicial review orders-whether the application for leave to apply 

for judicial review orders was within the statutory time-whether application for leave for judicial review orders would 

operate as stay-where the superior court ordered that the leave for judicial review application operate as stay-validity of 

application-Law Reform Act (cap 26) section 9 (3); Public Procurement and Disposal Act (Act No. 3 of 2005) section 100 

(1); Interpretation and General Provisions Act (cap 2) section 57; Judicature Act (cap 8) section 10 

Kenya Power and Lightning Company v NMG Company & 3 Others (Interested Parties) .......................................................39 

Stay - application for stay of proceedings and orders of the High Court pending hearing and determination of the intended 

appeal-whether the applicant demonstrated that the intended appeal was arguable and that it would be rendered nugatory 

unless a stay was granted-validity of application-Court of Appeal Rules rule 5 (2) (b) 

Kenya Power and Lightning Company v NMG Company & 3 Others (Interested Parties) ...................................................... 39 

Stay – stay in cases of appeal – stay of recovery of costs awarded to the respondent – appeal against conditional stay 

granted – delay in filing appeal – application to strike out – grounds that the appeal had been filed out of time and 

without leave of the court – certificate of delay having been issued by the deputy registrar – claims that the certificate of 

delay was not proper and could not be relied upon to explain the delay period – court considerations – whether the cases 

warranted striking out. 

Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd ............................................................38 

Stay of execution – application for stay of execution of a judgment and decree by the High Court – application grounded 

under sections 3A & 3B of the Appellate Jurisdiction Act – applicant having disobeyed an earlier order by the High Court 

to deposit security in an interest earning account – overriding objective of the Appellate Jurisdiction Act- whether the 

applicant could rely on the overriding objective having failed to comply with the High Court’s ruling – notice of appeal 

relating to the main judgment and not the High Court’s ruling - whether applicant could rely on the overriding objective 

provisions having disobeyed the High Court’s ruling – whether non-compliance with the High Court ruling had a bearing 

on the application before the appellate court – Rule 5 (2) (b) Court of Appeal Rules and sections 3A & 3B of the Appellate 

Jurisdiction Act 

Hunker Trading Company Ltd v Elf Oil Kenya Ltd........................................................................................................................55 

Taxation – appeal – appeal against dismissal of an application for taxation by third party – power to order advocate 

to deliver cash account – delay in filing appeal – application to strike out – grounds that the appellant had no right of 

appeal – claims that the was no leave to appeal obtained – certificate of delay having been issued by the deputy registrar 

- computation of time within which the appeal should have been filed – whether the certificate of delay could be relied 

on – whether leave was required to file appeals from the decisions on originating summons. 

Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd ............................................................38 

4 Issue 12: April-June 2010




CONSTITUTIONAL LAW 

Constitutional right - allegation of violation of constitutional right-alleged violation being pleaded as an afterthought 

- effect of. 

Dennis Muthee Chokera v Republic ................................................................................................................................................. 35 

Constitutional right – violation of appellant’s right to be presented to the court upon arrest within 14 days of such arrest 

– appellant having been brought to court after the prescribed period of 14 days – where the appellant had failed to raise 

that issue both at his trial and in his first appeal – language - failure to interpret the language of the court – appellant 

claiming that the court record was not clear whether proceedings were interpreted to the appellant – remedy for breach 

of constitutional rights – whether a doubt was created as to the appellant’s understanding of the proceedings – whether 

he was precluded from raising a constitutional issue at any other stage of the proceedings – Constitution section 72(3) 

and 77(2) 


Fundamental rights - rights of an accused person - right to a fair trial - right to be brought to court within a reasonable 

time-appellant being charged with murder - appellant having been arrested on February 7, 2007 and was taken to Court 

on February 9, 2007 

James Karoki Wangeci v Republic ................................................................................................................................................... 47 

CRIMINAL LAW - confessions-accused confessing to the offence during inquiry-statement under inquiry admitted after 

trial within a trial-effect of. 

Jackson Kyalo Munge v Republic ..................................................................................................................................................... 42 

CRIMINAL PRACTICE AND PROCEDURE 

Appeal – appellant charged for the offence of defilement and an alternative charge of indecent assault of a female – 

conviction on alternative charge -appeal against conviction on the alternative count and sentence for 10 years imprisonment 

– appeal on grounds that the main charge having been struck out an alternative charge could not be sustained-whether 

evidence on record could sustain the offence of defilement - whether the conviction and sentencing was proper – section 

144 and 145 (1) of the Penal Code 

M.B.O v Republic ................................................................................................................................................................................ 42 

Appeal – first and final appeal – duty as the first appellate court to reassess and re-evaluate such evidence and to reach its 

own independent conclusion – appeal against conviction and death sentence for the offence of murder – main ground that 

the case against the appellant was not proved beyond reasonable doubt – claims of contradictory evidence – whether the 

prosecution had proved its case beyond reasonable doubt – Penal Code (Cap 63) section 203 as read with section 204 

Josiah Afuna Angulu v Republic ....................................................................................................................................................... 44 

Appeal – second appeal – appeal against conviction and sentence for the offence of robbery with violence – grounds that the 

superior court failed to consider the defence – duty of the first appellate court – circumstances under which a superior court 

could rehash the conclusion of a lower court – whether this was objectionable – Penal Code section 296 (2) (Cap 63) 


Appeal – second appeal - matters confined to a second appeal - appellant having been charged with the attempted 

defilement of a minor – where the first appeal to the superior court of records was dismissed – claims that the appellant’s 

defence was not considered – whether the evidence adduced was sufficient to sustain the conviction 

James Karoki Wangeci v Republic ................................................................................................................................................... 47 

Appeal - second appeal against conviction and sentence - the appellant was convicted on counts of defilement and child 

trafficking-where the appellant’s acquittal on the count of defilement was reversed to a conviction-whether the superior 

court had jurisdiction to reverse the trial court’s finding of not guilty to guilty-whether the evidence adduced was sufficient 

to secure conviction on both counts-whether the appeal had merit-Penal Code sections 260, 261; Sexual Offences Act 

sections 8 (3), 18 (1) (2); Criminal Procedure Code section 215; United Nations Protocol to Prevent, Suppress and Punish 

Trafficking in Persons, Article 3 (a) 

Kenneth Kiplangat Rono v Republic ............................................................................................................................................... 45 

Charge – reduction of charge - charge sheet having been changed from reading “defilement of a minor” to reading 

“attempted defilement of a minor” – whether this would prejudice the appellant – claims that the language of the court 

was not stated when the charge was change and there was no interpretation – compliance with section 214 of the Criminal 

Procedure Code (Cap 75) – court record showing that the appellant pleaded not guilty when the alternate charge was 

read to him – effect of - Criminal Procedure Code section 214 

James Karoki Wangeci v Republic Criminal Appeal 146 of 2008 ..................................................................................................47 


5




Constructive provocation – appellant having argued with one of the witnesses prior to the incident – lack of evidence as 

to whether the deceased had been involved in the argument – whether this could be construed as constructive provocation 

– whether such provocation could be availed to the appellant 

Josiah Afuna Angulu v Republic ...................................................................................................................................................... 44 

Evidence - evaluation of evidence-duty of the first appellate court to evaluate the trial court’s evidence. 

Dennis Muthee Chokera v Republic ................................................................................................................................................ 35 

Exhibits- procedure for production of exhibits- need for an exhibit to be identified before being produced as evidencewhere 

an exhibit was irregularly produced-where the irregular production of the exhibit did not affect any ingredient of 

the offence- where the court could still have enter conviction without the weapon being produced as exhibit - whether the 

appeal could be allowed on that ground in circumstances 

Chris Kasamba Karani v Republic ................................................................................................................................................... 46 

Second appeal - appeal against conviction and sentence - appellant convicted of robbery with violence-appeal restricted 

to matters of law- circumstances under which an appellate court would interfere with the decision of the superior court- 

Criminal Procedure Code (Cap 75) section 361 


Trial process - judgment and sentencing-trial court required to receive mitigating circumstances after finding the 

appellant guilty before proceeding to pronounce sentence- mitigating circumstances on record would be of importance 

when assessing an appropriate sentence on appeal 


ELECTION LAW 

Conduct of elections – non-compliance with the law – the scope of section 28 of the National Assembly and Presidential 

Elections Act - section 28 of the National Assembly and Presidential Elections Act providing that irregularities in the conduct 

of an election will not vitiate the result unless the irregularities were so serious that the election was not in accordance 

with principles laid in the law or the irregularities affected the result- appellant asking the court to invoke section 28 on 

grounds that the acts alleged against the electoral body that conducted the elections did not affect the overall results of the 

elections – whether the anomalies found in Forms 16A and17A were so pervasive as to affect the entire election - whether 

these anomalies could be cured by section 28 of the National Assembly and Presidential Elections Act – whether election 

was conducted in accordance with principles laid down by the electoral law 

James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49 

Election petition – appeal against High Court judgment – the High Court having nullified the election of the appellant as 

the Member of Parliament for the South Mugirango constituency on grounds that the election was not transparent, free and 

fair – the appellant having garnered the highest number of votes during the scrutiny and recount of votes – failure by the 

court to find the appellant guilty of an electoral offence - scrutiny and recount of the votes disclosed numerous irregularities 

among them unsigned unauthenticated Forms 16A, variation between Forms 16A and 17A, missing ballot boxes, broken 

ballot seals - the significance of Forms 16A – the effect of the failure by the presiding officer to sign or stamp Forms 16A 

without reasonable cause - Regulations 35A (5), 39, 40 (1) of the Presidential and Parliamentary Regulations 


Interpretation of statute - interpretation of electoral laws and regulations – the interpretation of electoral laws is aimed 

at conducting free and fair elections – circumstances when an election can be declared void - test to be applied by the 

court in determining validity of an election - meaning of free and fair elections – meaning of transparent elections – duty 

of the electoral body to promote free and fair election - Section 17A of the National Assembly and Presidential Elections 

Act - section 42A (c) of the Constitution 


Service – mode of service of an election petition – appeal – appeal against ruling by the High Court dismissing election 

petition on the ground that the petitioner had invoked the alternative mode of service under Section 20(1) (a) (iv) of the 

National Assembly and Presidential Elections Act without exercising first due diligence to serve the respondent personally 

– alternative mode of service having been effected within six days of filing the election petition - affidavit of service – High 

Court struck out the affidavit of service for having not been filed on time - whether an affidavit of service in an election 

must be filed in a prescribed manner – affidavit of service was filed after leave was granted by the court to file further 

affidavits to examine whether the 1st respondent had been served in accordance with the Act - whether the affidavit of 

service was erroneously struck out - Section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act 

Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others ....................................................................................... 48 





Service – mode service of an election petition - affidavit of service - whether the appellant’s affidavit of service dismissed 

by the High Court would have discharged the onus of showing on a balance of probability that the appellant exercised 

due diligence in serving the election petition – whether onus is on the petitioner to demonstrate that he exercised due 

diligence before invoking service through alternative mode of service – 1st respondent argued that the petitioner had 

ample time exercise due diligence before resorting to alternative means – whether the petitioner discharged the onus of 

showing diligence in serving the petition – due diligence – meaning of due diligence 

Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others ....................................................................................... 48 

Service - service of an election petition – appeal against dismissal of an election petition by the High Court on the ground 

that service had not been conducted within the requisite period after publication of results – production of conflicting 

evidence before the High Court through conflicting affidavits regarding the service of the election petition - appellant’s 

process server swearing in an affidavit that the election petition had been served within the given period of time –1st 

respondent also swearing in an affidavit that the service of election of election petition as alleged by the process server did 

not take place – parties whether failure by the 1st respondent to cross examine the process server amounted to admission to 

having been served the election petition - whether the appeal could be allowed on that ground- section 20 (1) (a)National 

Assembly and Presidential Elections Act. 

Dickson Daniel Karaba v John Ngata Kariuki & 2 others ............................................................................................................. 56 

EMPLOYMENT – termination of – appeal against a decision finding the termination of appellant’s employment lawful and 

on disciplinary grounds – claims over rebate tickets – respondent having argued that the rebate tickets were concessionary 

and only a privilege to staff – claims that they could be changed or withdrawn or augmented by the respondent as deemed 

fit – circumstances under which the appellate court would find differently from a superior court – whether the appellant 

had an litigable entitlement to the tickets 

Jimi Masege v Kenya Airways Limited ............................................................................................................................................ 41 

EVIDENCE 

Corroboration - where corroborative evidence showed that the complainant was defiled despite the fact that the alleged 

perpetrator was not clinically examined-whether a conviction can solely be based on the corroborative evidence despite 

lack of clinical tests on the alleged perpetrator. 

Dennis Muthee Chokera v Republic ................................................................................................................................................. 38 

Identification evidence - principles that the court had to take into when dealing with evidence of identification where 

the accused claimed it was mistaken identity- appellant caught red handed-whether there was proper identification. 


Identification - accused seen and identified by witnesses in broad daylight-conviction based on such identification-whether 

such conviction is safe. 

Jackson Kyalo Munge v Republic ..................................................................................................................................................... 42 

LAND LAW - statutory notice - service of notice-statutory power of sale-provisions of the Registered Lands Act with regard 

to statutory power of sale-whether the statutory notices were valid-where first respondent’s statutory power of sale had 

accrued-Registered Land Act (cap 300) sections 65 (2), 74 (1) (a), 77 (4) 


PROBATE AND ADMINISTRATION - letters of administration - appeal - interpretation of statute – interpretation of section 

3(5) of the Law of Succession Act - appeal from High Court judgment granting the respondent letters of administration 

– appellant arguing that a customary law marriage could not presumed where all the customary requirements had not 

been fulfilled – whether a marriage between the respondent and the deceased could be presumed under section 3(5) of 

the Law of Succession Act Marriage – presumption of marriage - rationale and genesis of the concept of presumption of 

marriage - circumstances in which a presumption of marriage is deemed to arise – respondent having cohabited with the 

deceased for over fifteen years and had three children – evidence supporting that the deceased supported the respondent 

financially – lack of evidence that dowry was paid under the Kikuyu customs of marriage – whether a marriage could be 

presumed under such circumstances 

Mary Wanjiru Githatu v Esther Wanjiru Kiarie Civil Appeal 20 of 2009 ................................................................................... 50 


7




SENTENCE 

Sexual offence - indecent assault on a minor-sentence of 10 years imprisonment-legality of sentence -section 

M.B.O v Republic ................................................................................................................................................................................ 52 

Trafficking in narcotic drugs - appellant convicted and sentenced to imprisonment for 15 years for the offence of 

trafficking in narcotic drugs by the Chief Magistrate’s court – superior court subsequently setting aside the trial court’s 

sentence and sentencing the appellant to pay a fine of Kshs. 28 million or in default a twelve year jail term and a prison 

term of three and half years - whether the sentences imposed by the courts below were in consonance with section 4(a) of 

the Narcotic Drugs and Psychotropic Substances (Control) Act - when an appellate court can interfere with the sentence 

imposed by a lower court 

Kingsley Chukwu v Republic ............................................................................................................................................................ 55 

SUCCESSION LAW 

Intestacy - distribution of the estate of the deceased-customary law application-whether it was just to deprive a child of 

the deceased person of her father’s estate merely because she was a married daughter and vest the estate in a brother of 

the deceased-whether it was the intention of Parliament to exclude the application of intestacy provisions of the Succession 

Act (cap 160) to all agricultural land-Law of Succession Act (cap 160) sections 32, 33, 38; Judicature Act (cap 8) section 

3 (2); Constitution section 82 (1) (4) 

Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR ................................................................................. 36 

Probate and administration - grant of letters of administration - appeal against judgment of the superior court granting 

letters of administration to the respondents who were brothers of the deceased on grounds of customary law applicationwhere 

the respondents claimed that the deceased was holding the estate in trust for them-whether the superior court was 

right in applying customary law in disinheriting the appellants by virtue of being married daughters-whether the appeal 

had merit-Law of Succession Act (cap 160) sections 32, 33, 71; Registered Lands Act (cap 300) sections 28, 29; Judicature 

Act (cap 8) section 3 (2) 

Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR Civil Appeal No. 306 of 2004 ................................ 36 

TORT 

Libel – appeal against an award for damages paid to the appellant by the superior court – appellant having claimed that 

the respondent circulated a defamatory memo about him – respondent failing to refute the appellant’s claims – guidelines 

when testing matters of libel – principles guiding awards to damages – whether KQ was liable for defamation – whether 

the appellant was entitled to damages. 

Jimi Masege v Kenya Airways Limited ............................................................................................................................................ 41 

Negligence – damages for injuries suffered due to consumption of contaminated beer – appeal against liability and damages awarded 

in the consumer – whether the two lower courts were wrong in holding beer manufacturer liable – the rule in Donoghue v Stevenson – 

whether the principles enunciated in the rule were proved – whether duty of care by the appellant to the respondent had been established 

– whether negligence by the appellant if any resulted in injury to the respondent 

Kenya Breweries Ltd v Godfrey Odoyo ........................................................................................................................................... 43 

Negligence – liability – where the bottle that was analyzed was not the one consumed by the respondent – appellant alleging that 

there was no nexus between the contents of the bottle that was examined and the injury suffered by the respondent – whether report 

by Kenya Bureau of Standards was improperly obtained – effect of - 

Kenya Breweries Ltd v Godfrey Odoyo ........................................................................................................................................... 43 





HIGH COURT 

CIVIL PRACTICE AND PROCEDURE – stay of proceedings – application for an order of stay of proceedings – application 

filed by former directors of the first defendant under statutory management – failure by the former directors of the first 

defendant to disclose to the Court of Appeal the status of the first defendant- where the High Court had issued a restraining 

order against the defendants from interfering with the suit property - whether the Court of Appeal in granting an order of 

stay of proceedings in the High Court meant staying the restraining order issued by the High Court – whether the former 

directors of the first defendant had the legal capacity to appear before the Court of Appeal- whether the High Court’s 

restraining order superceded any other order issued by the High Court-Insurance Act (Cap 487) section 67(2) (1) - Court 

of Appeal Rules Rule 5(2)(b). 

Piedmont Investment Limited v Standard Assurance Limited & 2 others ................................................................................... 69 

CONSTITUTIONAL LAW 

Fundamental rights – rights of an accused person – right to be brought to court within a reasonable time after arrest 

–arrested person brought to court after 16 days - failure by the prosecution to offer an explanation–alleged breach of the 

right to protection against torture or to inhuman treatment-whether there was a violation of the petitioners constitutional 

rights – Constitution of Kenya section 72(3), (b) 74(1) 

Wachira Weheire v Attorney-General [2010] eKLR ....................................................................................................................... 67 

Fundamental rights and freedoms - breach of - award of damages - special damages neither pleaded nor provenexemplary 

damages-whether it was appropriate to award exemplary or aggravated damages- whether general damages 

could be awarded 


Fundamental rights and freedoms - limitation period-time within which to seek redress for breach of the rights- need 

to bring proceedings as early as possible- where there was no limitation under the Constitution 


Fundamental rights and freedoms - remedy for breach of- right of the applicant to sue for compensation under section 

72(6) of the Constitution- the provision an integral part of the Constitution-duty of the court to invoke that section where 

section 72(3) has been breached-whether failure to bring the applicant to court within the prescribed time only entitled 

him to compensation for breach of his rights- Constitution section 72 (6). 

Republic v Desmond Mukhaya Mulusa [2010] eKLR .................................................................................................................... 61 

Fundamental rights and freedoms - right to liberty - protection against arbitrary search-fair trial - freedom of assembly 

and association - protection from discrimination –whether there was enough evidence to prove that the said rights had 

been violated-Section 72(1), 76(1), 77 (a),80(1) and 82(3) 


Fundamental rights and freedoms - rights of an accused person- accused person presumed innocent until proven guiltyprosecution 

submitting that if there was any breach of the constitutional rights of the accused the court had to apply the 

provisions of the Constitution in a wholesome manner- rights of the accused to be weighed as against the rights of the 

victim- whether the court could use section 71 of the Constitution as a counter-weight to the provisions of section 72(3)- 

obligation of the court to give effect to the section 70 of the Constitution- restrictions and limitations of constitutional rights 

–rights subject to respect for the rights and freedoms of others and for public interest – where public interest required 

the court to determine whether or not the accused was guilty-whether the violation of constitutional rights of an accused 

resulted to an automatic acquittal- Constitution sections 70, 71 and 72 (3). 


Fundamental rights and freedoms - rights of an accused person- right to be brought to court within 14 days after arrestapplicant 

accused of murder-detention of applicant in police custody for 6 months - onus on the police to demonstrate that 

the accused had been taken to court as soon as was reasonably practicable- delay caused by delay in conducting the postmortem 

examination of the victim’s body as the family could not be traced to identify the body- victim’s family inability to 

raise the mortuary fees and the post-mortem fees causing further delay in having the post mortem report released-whether 

the prosecution had explained the delay satisfactorily-Constitution sections 70 (a), 72 (3) (b) and 77 

Republic v Desmond Mukhaya Mulusa [2010] eKLR Criminal .................................................................................................... 61 


9




Fundamental rights and freedoms - rules of procedure- Constitutional issue arising from the subordinate court- where 

the procedure required a party to raise the constitutional issue in proceedings before the subordinate court which would 

be then referred to the High Court for determination–where there was an alternative of filing it directly to the High Courtwhether 

the application was competent-the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental 

Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001, rule 9 


Fundamental rights and freedoms –procedure-manner in which a claim for the violation of the constitutional rights 

should be brought - sufficiency of facts-failure to raise the claim at the preliminary stage-where the pleadings were 

supported by evidence -whether there was breach of any fundamental rights 


Jurisdiction - jurisdiction of the High Court to deal with the issue of violation of constitutional rights-claim that the Truth, 

Justice and Reconciliation Commission (TJRC) could deal with the issue-whether the court could abdicate the responsibility 

to an inferior tribunal 


CONTRACT - carriage by air - period of limitation in such contracts- appeal against the decision of the trial court declaring 

that the suit had been time barred and not based on contract-suit by air passenger against an airline operator - defendant 

refusing to allow the appellant access onto a connecting flight due to appellant’s lack of valid travelling documents- time 

within which the cause of action ought to have been brought -period of limitation being two years– interpretation of 

Article 29(2) of the Warsaw Convention-whether this was a special contract to which the Law of Contract did not apply - 

whether the suit was time barred-Carriage by Air Act (2 of 1993) - Civil Procedure Act (Cap 21) Section 3A- Civil Procedure 

Rules Order 6 Rule 13(1)(a -Warsaw Convention on Carriage by Air, Article 29 of the as amended by The Hague Protocol, 

(1995) 

Farida Abdullahi Ibrahim & 2 others v Gulf Air Limited [2010] Eklr ........................................................................................ 76 

CRIMINAL LAW 

Common intent - several persons acting in concert to execute a common action - mob beating of a suspected criminal- 

“mob justice”-necessary ingredients in proving common intent and motive-court position where evidence establishes that 

the accused person’s were acting jointly and or on common design-malice aforethought-whether failure to prove motive 

vitiated an accused persons conviction-whether it was necessary to prove motive as one of the elements in a criminal 

offence-whether the prosecution discharged its onus of establishing a prima facie case against both accused persons-Penal 

Code (Cap 63) 9, section 203, 204 

Republic v Peterson Karani Njogu ................................................................................................................................................... 73 

Defilement – defilement of a girl under the age of 18 years – appellant raising defence of retraction by admission, by 

stating that “the girl was agreeable to what I did to her”- circumstances under which a retraction would arise – whether 

a minor can have consensual sex – whether the evidence adduced was sufficient to sustain a conviction. 

Josephat Njue Solomon v Republic .................................................................................................................................................. 60 

Rape - appeal against a charge of rape-alternative charge of indecent assault-where three days had lapsed before the 

incident was reported-appeal on grounds that the appellant had been charged with a non-existent provision of the lawswhere 

the Sexual Offences Act (No. 3 of 2006) had already come into law at the time-Penal Code (Cap 63) section 140 

Joseph Mwangi v Republic ................................................................................................................................................................ 76 

CRIMINAL PRACTICE AND PROCEDURE 

Affidavit - amendment-whether an affidavit may be amended- claim that the affidavit sworn by the Investigating Officer 

explaining the delay was referring to a different case-whether there was need for the respondent to seek to either amend 

the affidavit or alternatively, to seek leave to file a supplementary affidavit -where the only lawful option would be to file 

a supplementary affidavit-whether the affidavit was defective 


Charge – framing of a charge for the offence of defilement –appeal against conviction and sentence of life imprisonment 

on a charge of defilement – grounds; that the magistrates trial court omitted to record the language used during trial, 

words in the particulars of the charge i.e “unlawful carnal knowledge” were not envisaged in the Sexual Offences Act – 

court’s record showing that the appellant understood and participated in the proceedings - law on use of language in the 

course of criminal proceedings – whether the phrase “causing penetration with a child” and “unlawful carnal knowledge” 

described the same act. 

Josephat Njue Solomon v Republic ................................................................................................................................................... 60 





Defence - defence of alibi-accused person raising defence of alibi-accused claiming that the complainants had a grudge 

against him-viability of the defence-whether the defence was an afterthought 


Retrial - application for retrial-witnesses in the original trial having testified without being sworn in-prosecution having 

proved its case against the appellant beyond reasonable doubt-circumstances under which a retrial would have been 

ordered-whether a retrial would prejudice the appellant. 

Charles Wanjohi Murage v Republic ............................................................................................................................................. 78 

Trial - trial conducted by two magistrates in succession – right of an accused person to have the case start afresh in such 

circumstances - accused person having asked the succeeding magistrate that the trial of the case should start afresh – request 

having been denied – whether the trial court had misdirected itself – Criminal Procedure Coe (Cap. 75) section 200(3) 

Joseph Mwangi v Republic ................................................................................................................................................................ 76 

Witness - prosecution witness-prosecution failing to call the investigating officer as a witness in the trial-other witness 

categorically placing the accused at the crime scene-circumstances under which the evidence of the investigating officer 

would have been required-effect of failing to call the investigating officer-whether the lack of evidence left a gap in the 

prosecution’s evidence 


Witnesses - witness testimony-manner in which witness testimony may be taken in court -record of the trial failing to 

show whether the witnesses had been sworn or affirmed before their evidence was received-circumstances under which 

witness could be allowed to testify without being sworn and or affirmed-first appellate court being in doubt as to whether 

the witnesses had been sworn in-person in whose favor the doubt ought to have been resolved-whether the appellant had 

been prejudiced by a conviction on unsworn evidence. 

Charles Wanjohi Murage v Republic .............................................................................................................................................. 78 

CUSTOMARY LAW – burial dispute – deceased wish to be interred/buried in her piece of land – defendant’s (deceased 

father- in -law) claim that he had a customary right to decide the burial place - Luo customary law in regard to burial 

of a married woman – claim by the plaintiffs that the defendant and his family mistreated the deceased during her life 

time and were therefore undeserving to bury her remains – effect of the deceased wish vis a vis Luo customary law on 

burial – factors the court should consider when applying customary law – whether in the circumstances the wishes of the 

deceased should be respected – Judicature Act (Cap 8)section 3 (2). 

Charles Onyango Oduke & Another v Samuel Onindo Wambi ................................................................................................... 66 

ELECTION LAW 

Ballot boxes - scrutiny of ballot boxes- integrity of nearly a third of ballot boxes in question- some ballot boxes tampered 

with in the period between the time the defunct Electoral Commission of Kenya (ECK) was disbanded and the constitution 

of the second respondent-whether the ballot boxes could be scrutinized and ballot papers recounted. 

William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63 

Election petition - parliamentary election - petition seeking to nullify and declare void the election of the first respondent 

as Member of Parliament for Makadara Constituency -irregularities in elections – petitioner citing several irregularities 

in the conduct of elections - whether the irregularities were sufficient to warrant nullification of the election- National 

Assembly and the Presidential Elections Act (Cap 7) 

Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ........................................................................ 58 

Election petition - parliamentary election- election petition seeking to nullify and declare void the election of the first 

respondent as Member of Parliament for Juja Constituency -irregularities in elections – petitioner citing several irregularities 

in the conduct of elections - whether the irregularities were sufficient to warrant nullification of the election- National 



Election petition - standard of proof in election petitions- burden of proof on the petitioner-standard of proof slightly 

higher than the one adopted in civil cases but not as high as in criminal cases- standard of proof ordinarily applied by the 

court in civil cases where an allegation of fraud has been made -need for the court to be satisfied that the allegation of 

fraud had been properly established-whether the required standard of proof had been established 



11




Election petitions -jurisdiction-High court’s jurisdiction in determination of election petitions-factors to be considered by 

the court- the Constitution, the National Assembly and the Presidential Elections Act, the Election Rules and Regulations 

-general principles recognized by the law as constituting the proper conduct of a valid election- nature of election petitionsan 

election a signification of the exercise of the democratic rights of the people to have a person of their choice represent 

them in the National Assembly- whether the court had jurisdiction to hear the matter-Constitution of Kenya Section 44- 

National Assembly and the Presidential Elections Act(Cap 7) Section 19 


Election results - discrepancies between the presidential and civic elections - whether the difference was evidence of 

serious electoral malpractice that was apparent during the conduct of the elections- alteration of results- Form 16Asspecific 

results of candidates either cancelled or altered without the presiding officer countersigning the cancellation or 

alteration- no trace of the physical records of the election results - whether the cancellations and alterations in the Form 

16As produced in the court raised question regarding the veracity and authenticity of the said results - whether the first 

respondent had been validly elected as the member of parliament. 

Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58 

Elections - fair and free elections -right of a people to freely elect their representative in a credible electoral process - test 

as to what constitutes free and fair elections - internationally acceptable standard -whether the complaints made by the 

petitioner were such that, apart from establishing the particular electoral malpractice or irregularity, they impacted on the 

rights of the voters of the constituency to have a person of their choice represent them in the National Assembly - whether 

the election as conducted could be said to have been free and fair-Article 25 of the International Convention on Civil and 

Political Rights (1966)- Article 21 of the Universal Declaration of Human Rights 


Electoral documents - statutory documents and forms - manner in which results are to be recorded - presiding officer 

required to record the total number of votes cast in favor of each candidate and to sign and seal the declaration set out 

in the Form 16A certifying the results –whether Form 16A which is not signed by Presiding Officer could constitute valid 

results which could be accepted for tallying by a Returning Officer - absence of Form 16A for most agents -Form 17A not 

complied with –certificate of winning being issued to the successful candidate before Form 17A - agents not allowed to 

verify the forms – whether the anomalies in the process of election results were so fundamental as to affect the results of 

the election. 


Electoral documents - election result- manner in which results are to be recorded- Form 16A and Form 17A- Form 16As 

lacking the signatures of the presiding officers- persons other than presiding officers filling Forms 16A- need for all the 

presiding officers to sign and stamp the Form 16As for the same to be considered valid- statutory comments in the Forms 

16A- failure by the presiding officers to give reasons for the failure or refusal by the candidates or their agents to sign the 

Form 16A- completion of Form 17A- whether the third respondent accepted invalid results which he tallied and included 

in the final results as contained in Form 17A- Presidential and Parliamentary Elections Regulations (Cap 7 Sub Leg) 

Regulation 35A(1) (b), 35A(5)(b) 35A(7) and (8) 40(1) 


Electoral malpractice – ballot boxes -ballot boxes received at tallying centre with seals broken – boxes carried by unknown 

persons - petitioner’s agents denied opportunity to accompany the ballot boxes from the polling station to the tallying 

station - the petitioner arrested when he raised the grievance– whether the parliamentary elections were conducted in 

free, fair and transparent manner. 


Electoral malpractice and offence – code of conduct – allegation of breach of duty and code of conduct by the Electoral 

Commission and the Returning Officer-failure to serve impartially and independently in performance of their duties – 

where it is alleged that the Commission had been pressured by first respondent’s political party to declare the results 

which it believed to be false – whether the anomalies raised a question regarding the authenticity and veracity of the 

election results. 


12 Issue 12: April-June 2010




Electoral offences and election malpractices – election posters- election placards and posters not disclosing the name 

and address of the publisher - whether the fact that a party to an election petition did not specify on the face of his election 

poster the name and the address of the printer or publisher could result in the nullification of an election- whether the 

petitioner had proved that allegation to the required standard of proof- Election Offences Act (Cap 66) section 11 (1) and 

11(1) (b) 


Electoral offences and election malpractices – election posters- printing of election posters that do not disclose the 

name and address of the publisher - whether the fact that a party to an election petition did not specify on the face of his 

election poster the name and the address of the printer or publisher could result in the nullification of an election –code of 

conduct-conduct of the Returning Officer-Returning Officer alleged to have aided the first respondent gain unfair electoral 

advantage against the petitioner- bribery-the culprit a civic candidate in the said elections -whether the petitioner had 

proved those allegations to the required standard of proof-Election Offences Act section 11 (1) and 11(1) (b) 


Electoral officials - Electoral Commission of Kenya (ECK) officials presiding over the nomination of both the parliamentary 

and civic candidates of a political party-whether by virtue of ECK participation in the parliamentary nomination, an 

impression was created that it was partial to that political party during the general elections- the Presidential and 

Parliamentary Election Regulations 


ELECTION RESULTS - alteration of results - Forms 16A- results of specific candidates altered without the presiding officer 

countersigning the cancellation or alteration- need for electoral documents containing results to be verified by other 

parties, including the members of the public -whether the cancellations and alterations in the Form 16As produced in the 

court raised question regarding the veracity and authenticity of the said results- discrepancies between the presidential 

and civic elections -elections conducted from one voter’s roll- difference of over 5,000 votes between the parliamentary 

vote and the presidential and the civic vote - whether the difference was evidence of serious electoral malpractice that 

was apparent during the conduct of the elections. 


EVIDENCE 

Admissibility of evidence - new evidence after cross examination-discretion of the court to refuse or allow the evidence-whether it 

was against the principles of justice to allow or admit the evidence. 


Documentary evidence – P 3 form – court’s discretion to call the maker of a document to adduce evidence - Sexual 

Offences Act (2006) section 8 (1),(2) - Penal Code (Cap 63) – Evidence Act (Cap80) section 77. 

Josephat Njue Solomon v Republic ................................................................................................................................................... 60 

INTELLECTUAL PROPERTY – infringement of trademark rights – appeal against the decision of the Registrar of 

Trademarks to register the respondent’s trade name “SYNERCEF” – appellant’s contention that the trade name was 

phonetically similar in pronunciation and appeared visually similar to another registered trademark “ZINACEF” – whether 

there was infringement of trade mark rights - whether the appeal had merit – Trademark Act (Cap 506) sections 7,14,15,18 

(1),(3) and 52. 

Glaxo Group Limited v Syner-med Pharmaceuticals Ltd .............................................................................................................. 75 

JUDICIAL REVIEW 

Approbation and reprobation – relevance of the conduct of the applicant - applicant to approach the court with utmost 

good faith- applicant having been a beneficiary of the By-laws he purported to challenge-whether the applicant was 

entitled to the discretionary orders of Judicial Review 

Republic v Institute of Certified Public Secretaries of Kenya Ex Parte, Mundia Njeru Geteria ................................................ 72 

Certiorari - rules of procedure-time within which to institute proceedings-whether Order 53 rule 2 Civil Procedure Rules 

included anything covered by the principle of ultra vires or nullities or decisions made without jurisdiction-duty of the 

applicant to demonstrate that the decision was a nullity or was made without jurisdiction-whether the court had the 

jurisdiction to hear the matter- Civil Procedure Rules Order 53 rule 2 



13




Certiorari - ultra vires by- laws-applicant seeking to challenge by-laws made under the Certified Pubic Secretaries of 

Kenya Act -claim that the by-laws were a nullity and void having been made by the respondent (Institute of Certified Public 

Secretaries) in excess of its powers-whether the orders sought could be granted 

Republic v Institute of Certified Public Secretaries of Kenya Ex Parte, Mundia Njeru Geteria ............................................... 72 

Mandamus - application to compel the Registrar of Political parties to register the Party of Democratic Unity and issue it 

with a registration certificate- order of prohibition to bar the Registrar from declaring the party unlawful - requirements 

to be met before a party could be registered -whether the applicant had met all the mandatory requirements 

Isaiah Gichu Ndirangu v Registrar Of Political Parties [2010] eKLR ......................................................................................... 70 

Rules of procedure - pleadings - grounds to be relied upon in the Notice of Motion those pleaded in the statutory 

statement- applicant raising new grounds not pleaded-whether the new arguments were acceptable- Civil Procedure 

Rules Order 53 Rule 4 (1) 

Isaiah Gichu Ndirangu v Registrar Of Political Parties [2010] eKLR ......................................................................................... 70 

LAND LAW 

Jurisdiction of the Provincial Land Disputes Committee – where the Provincial Land Disputes Tribunal directed 

the sub-division of the appellant’s land and issuance of land title deeds to the respondent – whether the Tribunal had 

jurisdiction to interfere with the appellant’s proprietory rights – whether the Tribunal acted ultra vires the Land Disputes 

Tribunals Act –whether the appeal had merit- Land Disputes Tribunal Act of 1990 section 3(1). 

Issack Maina Murathe v Jesidah Wanjiru Murathe Civil Appeal No 87 of 2007 ........................................................................ 71 

Transfer of land – dispute as to title to land - claim that the second defendant had secured from the first defendant land 

through fraudulent means in violation of a court order - where the second defendant further transferred the suit land to 

a third party – whether the first and second defendants had legal capacity to transfer the land – inherent power of the 

High Court to rectify an act done in contempt of it’s orders - whether the third party was an innocent purchaser for value 

without notice. 

Piedmont Investment Limited v Standard Assurance Limited & 2 others .................................................................................. 69 

POLITICAL PARTY - registration of parties-requirements- a proposed party to have not less than two hundred members 

who were registered voters for purpose of parliamentary elections from each province - where the applicant could not 

comply with that requirement as the voters register had been done away with following the disbandment of the Electoral 

Commission of Kenya (ECK)-Constitution of Kenya (Amendment) Act section 41A (d) replacing the ECK with the Interim 

Independent Electoral Commission of Kenya (IIEC)-the voters register being done away with and IIEC mandated to compile 

a new register-requirement for registration of parties- Registrar declining to accept the applicant’s documents pending the 

compilation of a fresh register of voters -whether the Registrar had acted illegally in declining to register the applicant’s 

party- Constitution of Kenya (Amendment) Act, 2008, section 41A (d)-Political Parties Act sections 18, 19 and 23 

Isaiah Gichu Ndirangu v Registrar of Political Parties [2010] eKLR ............................................................................................ 70 

STATUTES 

Certified Pubic Secretaries of Kenya Act - promulgation of regulations under the Act-powers donated only to the 

Minister in charge-respondent purporting to promulgate regulations-whether the respondent had the power to make 

Regulations- provisions of the Act vis-ˆ-vis the by-laws- by-laws 27 to 38 inconsistent and in conflict with section 9 and 

the second schedule of the Act-by-laws purporting to provide for Council meetings and elections –provision already in the 

second schedule of the Act- whether the Regulations in relation to the elections of the meeting were a nullity ab initio- 

Certified Pubic Secretaries of Kenya Act (Cap 534) sections 7, 9 and 37 


Interpretation of statutes - Public Authorities Limitations Act-inconsistency with the Constitution-limitation provisions 

under the Public Authorities Limitations Act –whether the Public Authorities Limitations Act could override the Constitution 

and be used to curtail rights provided under the Constitution - Constitution of Kenya section 3, Public Authorities Limitations 

Act 


Subsidiary legislation – procedure in promulgating subsidiary legislation–gazettement- requirement that all subsidiary 

legislation to be gazetted- where there was no evidence that the impugned Regulations were ever gazetted as required by 

law-whether the regulations had the force of law-Interpretation and General Provisions Act, (Cap 2) Section 27 


14 




AG. EDITOR’S NOTE 

NOTE FROM THE AG. EDITOR 

Our esteemed readers, 

As it turns out, three months is a long time in law reporting. There have been quite a number of important developments 

since our last new-look edition of the Bench Bulletin (January-March edition) was published. 

Early in May, the Council sponsored and participated in the inaugural Uwazi Football 

Tournament organized by the International Commission of Jurists-Kenya (ICJ). The 

aim of the tournament, which drew participants from media, business, legal sector and 

private corporations, was to raise awareness and advance the campaign on the need for 

a Freedom of Information law. 

Later in mid-June, the Council’s Secretariat finalized the preparation of its first ever 

draft strategic plan through an all-staff retreat in Nyeri town. Once it is approved and 

adopted by the Board of the Council, the plan is to run from 2009-2012 and will move 

the Council to a new level of organizational planning and excellence. Further particulars 

and developments regarding the draft strategic plan will be featured in the next edition 

of the Bench Bulletin. 

Also in June, the Council began the work of preparing the inaugural edition of the latest 

addition to its menu of legal publications - the KLR Monthly, a paper-back compilation of 

summaries of precedent-setting judicial opinions delivered by the Court of Appeal and 

the High Court of Kenya over every calendar month. KLR Monthly marks a shift in the 

Council’s law reporting calendar from yearly to monthly publication and will serve as 

Michael M. Murungi 

Ag. Editor/C.E.O. 

an authoritative source of case law in the build-up to the publication of the hard-bound book volume at the conclusion 

of the calendar year. 

Speaking of case law, considerable jurisprudence has emanated from the Court of Appeal and the High Court in the 

last three months, as the judicial opinions featured in this edition will reveal. In Republic v Chief Justice of Kenya & 6 

others ex parte ole Keiwua [2010] eKLR, I can do no better than High Court Judges M. Apondi, G. Dulu and W. Warsame 

when they state in their judgment: “this is a unique matter with fundamental implications on the jurisprudence of 

this country on exercise of constitutional powers affecting a judge, the Chief Justice and a sitting President of this 

country” and “we find this case standing in a place of its own in our jurisprudence.” Elsewhere, the Court of Appeal in 

Mary Wanjiru Githatu v Esther Wanjiru Kiarie [2010] eKLR, the Court of Appeal appears to be breaking new ground on 

the jurisprudence relating to presumption of marriages. Over the same period, both the Court of Appeal and the High 

Court have considered various matters of electoral law, most importantly the threshold of electoral malpractices that 

may lead to a nullification of a parliamentary election. These and other issues are featured in the case law covered in 

this edition. 

Finally, our last edition included a complimentary copy of a CD-ROM of the KLR Grey Book – a collection of thirteen 

statutes on procedural law. We have received highly positive comments and feedback, mainly from Judicial Officers, 

about the new-look Bench Bulletin and the CD-ROM, which we are glad to share with you in our new segment, ‘The 

Inbox’. 

Happy reading! 

M. M. Murungi 

Ag. Editor 


15



FAREWELL LUNCHEON HELD IN HONOUR 

OF THE IMMEDIATE FORMER EDITOR 

MRS. GLADYS B. SHOLLEI 

The immediate former Editor of the Kenya Law Reports Mrs. 

Gladys B. Shollei accepts a gift from His Lordship The Hon. Mr. 

Justice J.E. Gicheru during a farewell luncheon held in her honour 

at a Nairobi hotel on April 16, 2010. From right to left: His 

Lordship, the Chief Justice and the Chairman of the National 

Council for Law Reporting; Mrs. Lydia Achode, the Registrar of 

the High Court; Mr. Michael Murungi, Ag. Editor/ C.E.O, NCLR; 

Mrs. Gladys B. Shollei, the immediate former Editor. 

Reproduced below is the keynote speech delivered by 

the Hon. Mr. Justice J.E. Gicheru, EGH, Chief Justice and 

Chairman of the National Council for Law Reporting, on 

the occasion of a farewell luncheon held in honour of Mrs. 

Gladys B. Shollei, the immediate former Editor and C.E.O 

of the Council on April 16, 2010, Nairobi. 

Ladies and Gentlemen, 

We are gathered here today, for this simple yet profound 

occasion, to celebrate the tenure of Mrs. Gladys Shollei, 

initially as the Assistant Editor of the Kenya Law Reports, 

and subsequently as the Chief Executive Officer of the 

National Council for Law Reporting and the Editor of the 

Kenya Law Reports. 

Mrs. Shollei’s service at the Council started in February 

2001 and as you are all aware, ended honourably with 

her resignation on March 16, 2010. 

You will all agree with me that Mrs. Shollei’s nine-year 

tenure has been most fulfilling not only for the Council as 

an organization, but for the Judiciary as a whole. It was 

through her pioneering spirit and visionary leadership, 

that the Council rose from its humble beginnings in 2001 

to its present position as an internationally renowned 

publisher of legal information. 

More particularly, I wish to commend her for the following 

achievements: 

FAREWELL LUNCHEON 

of managers and staff, and instilled a positive, 

result-oriented work ethic; 

• She revived official law reporting in Kenya, after 

it had lapsed for over two decades, thus making 

a great contribution to not only access to public 

legal information and education, but also to the 

administration of justice, the transparency of the 

judiciary and access to justice; 

She went beyond the call of duty and moved 

the Council from being a traditional law 

reporter, to an institution that applies creative 

solutions and technology, in providing 

improved access to a broader menu of public 

legal information that includes, the Laws 

of Kenya, Bills of Parliament, Legal Notices, 

the Daily Cause List, the Kenya Gazette, legal 

articles and commentaries; 

• She placed Kenya on the international map, 

not only by making the Kenya Law Reports 

website the first website in Africa and among 

the few in the world providing the full text of 

national legislation free of charge, but by forging 

partnerships with international peers in law 

reporting, such as the Association of Reporters of 

Judicial Decisions, the Incorporated Council for 

Law Reporting for England and Wales, the Free 

Access to Law Movement, New York’s Leitner 

Centre for International Law and Justice, among 

others; 

• She significantly narrowed the gap in unreported 

cases, established a system of collecting and 

reporting current cases, launched an official law 

journal for Kenya, namely, the Kenya Law Review; 

established the Bench Bulletin to update judicial 

officers on the latest case law, and established the 

Bench Research Hotline, a research facility for 

receiving and processing legal research queries 

from Judicial Officers; and 

• Finally, as the Secretary to the Council, I believe 

I speak for all the Members when I say that Mrs. 

Shollei facilitated the Council’s meetings in a 

most organized and efficient fashion. But beyond 

all these, Mrs. Shollei has been our friend and 

our colleague, and I believe we will all also have 

the fondest memories of the moments that we 

shared with her. She still remains our friend and 

a friend of the Council, and I am pleased to learn 

that in her new role as the Deputy Chief Electoral 

Officer of the Interim Independent Electoral 

Commission, she is already partnering with the 

Council’s Secretariat on the publication of the 

Election Petition Law Reports. Mrs. Shollei, on 

behalf of the National Council for Law Reporting, 

I thank you for your exemplary service and wish 

you and your family God’s blessings in all your 

future endeavours. 

• She nurtured the Council’s Secretariat into a 

well-established and well-resourced institution, 

with a strong brand, a highly qualified team 

16 




DEPARTMENTAL REPORTS 

ICT DEPARTMENT 

KLR SHIFTS TO PAPERLESS OFFICE WITH ALFRESCO 

The significant problems we face cannot be solved at 

the same level of thinking that created them. 

~ Albert Einstein 

The National Council for Law Reporting has implemented 

Alfresco, a web-based cross-platform enterprise content 

management system that enables the automation of 

virtually all organizational operations. 

Web-based submission of Court Decisions 

and Cause Lists 

For a long time, the collection of judicial opinions from 

court stations outside of Nairobi (where the Council’s 

offices are located) has been a major challenge. When the 

Council began its operations, the opinions were collected 

exclusively in hard copy from the court registries. The 

opinions would be sent from the court station by courier 

and delivered at the Council’s offices in Nairobi where 

they would be retyped and scanned. Later, the Council 

came to an arrangement with the Judiciary whereby the 

opinions would be provided to the Council in soft copy 

files on external memory devices such as floppy disks 

and later on flash disks. The Council’s Collection Agents 

who are based at major court stations would then deliver 

the storage disks physically or email the opinions from a 

cybercafé where one was available within the precincts 

of the Court station. 

Today, with increased internet penetration and higher 

bandwidth, the Council has implemented a web-based 

Document Management System which introduces a 

more comprehensive and efficient method of tracking, 

collecting and forwarding judicial opinions and cause lists 

countrywide. The systems provide a secure web-based 

portal on which the Collection Agents can log in and 

submit the files on the flash disks containing the judicial 

opinions. Presently, the Collection Agents, who have been 

trained on how to use the system and have been issued 

with certificates of proficiency in the Enterprise Content 

Management System, access the web-portal at cybercafés 

located in their respective towns. However, plans are 

underway to provide them with laptop computers 

with internet access modems in order to improve the 

submission of the judicial opinions. 

With the skills and knowledge necessary to use a new 

web-based Document Management System which 

introduces a more comprehensive and efficient method 

of tracking, collecting and forwarding judicial opinions 

and court cause lists countrywide 


Collection Agent’s Entry Screen 

A Collection Agent logs into his or her profile on the 

system using a secure user name and password. He or 

she then proceeds to key in the descriptors/metadata of 

the judicial opinions that they are about to submit, such 

as the case name, names of the parties, court station, 

date of delivery and presiding judge or judges. When 

all the metadata has been entered, the Collection Agent 

then attaches the file containing the judicial opinion and 

hits the ‘submit’ button. Immediately, the metadata and 

the case file will be in the system and available to the 

Data Entry unit at the Council’s headquarters as part of 

a workflow process that culminates in the publication 

of the judicial opinion on the Council’s website (www. 

kenyalaw.org). 

Mr. Michael Mayaka (centre), the Council’s Web & Systems 

Developer, presides over a practical training session for members 

of staff on the use of the new Enterprise, Alfresco Content 

Management System. 

17




The system creates a virtual workplace for the Council’s 

staff where they are able to interact in departmental 

and individual profiles/workspaces. Documents, ideas, 

communications and even virtual meetings are originated 

and concluded in the system. The system is highly secure 

and has a degree of scalability and customization that 

makes it ideal for both a small-sized organization as well 

as a large-scale enterprise with offices spread out across 

the globe. 

Ms. Esther Adero, a Collection Agent based in Eldoret, submits 

judgments using the web-based content management system 

from a cyber-cafe in Eldoret Town. 

The web-based system of submitting judicial cases 

has realized a number of important advantages 

for the Council: 

1. It is a faster and more efficient way of submitting the 

opinions 

2. It has brought savings on the costs of transportation, 

printing, photocopy and courier; 

3. It acts both as a conduit and as a reservoir of content 

as the records of the submitted opinions can be traced 

back in the system; 

4. It provides a platform for Collection Agents to assess, 

track and evaluate their collection record; 

5. It enhances the computer skills and knowledge of 

collection agents 

Because it can be integrated with the Council’s website 

front end, it will considerably reduce the lead time 

between the delivery of an opinion and its publication 

on the internet. 

The perfect paperless office: A screenshot of the Alfresco DMS 

showing the virtual workspaces for the Council’s departments 

Virtual Departmental Workspaces 

The IT Team successfully wound up the initial training of 

all staff in readiness for a full rollout of the system. After 

the first training of the Collection Agents, departmental 

training sessions were conducted for the Editorial, 

Laws of Kenya, Research & Development and Finance 

Departments. 

Universal Content Access, Collaboration and Control 

Enterprise Document Management implementing a 

paperless office environment 

The Alfresco System also features a web-based enterprise 

document management system (known as the NCLR 

DMS) which introduces a more comprehensive and 

efficient method of Document Management; Web Content 

Management and Collaboration. 

The system provides a collaborative content management 

framework where users can interact in real time. It 

provides an enterprise library which can serve as a 

central document repository and resource for shared 

users. It has an architecture that can create functionally 

distinct team and organizational spaces with crosscollaborative 

features such as wikis, cross-spatial tasks, 

feeds, discussion forums and social networking platforms. 

The framework that is in use is fully open source and has 

been successfully implemented in many private as well as 

government organizations all over the world. 

18 





Service Desk 

NCLR has deployed the world’s leading opensource service desk solution with more than 70,000 installations worldwide. 

The key features of the service desk include: 

Service request & incident recording 

The system facilitates quick recording of incidents and service requests with a customer front-end, e-mail, telephone 

and other contact information and the creation, management and assignment of a service catalogue. It has quick ticket 

templates for fast responses to standardized customer request and able to link content from the knowledge base into 

recorded incidents. 

Workflow management 

Automatic follow-ups to existing incident-IDs with integrative knowledge base access for quick workarounds enables 

satisfactory customer service response. The system provides the tools for linking, merging and splitting of separate 

incidents and providing automated feedback to recurring requests. Customer care personnel can activate pending 

reminder functionalities and conduct a full text search of the entire system. Busy customer service desks find great 

value in the system’s time accounting and reporting with flexible mapping of service processes, workflows and approval 

process using Active Control Lists, queues, decisions fields with automatic routing of requests 

Customer Self Service: 

The system enables the separation of customer web frontend to relieve the service desk from routine tasks and provides 

user-based recording and tracking of own requests. It provides transparency about request status and work progress 

with view-on-request functionality and access to public or pre-classified FAQ articles. 

Seamless back-to-front-end website 

integration 

Using an open-source framework, the Council will soon be releasing a new version of its website that features 

more interactivity, easier and even more relevant searches, a friendlier and easier updates management 

interface, blogs, news management modules and forums. 

The website, which will feature WEB 2.0 technology, will mark a shift to a new internet experience providing a 

level of user contribution, interactivity and collaboration that is unprecedented for a public legal information 

website. 


19




New Offices 

HUMAN RESOURSE DEPARTMENT 

The Council will be moving from its current offices – Milimani Commercial Courts in Community where it 

has been based since 1994 to the newly renovated former Income Tax House in the next financial year. It is 

a spacious, modern, state of the art building. The Council will occupy the 4th floor. This move will solve the 

Councils work space limitations and contain the Councils’ growths plans. 

HR Policy Manual 

In consultation with DPM, the review of the Delinking report is under way with a view of establishing a 

Human Resources Manual to steer and regulate the Council’s operations, structures, and systems. These 

are guided by the Employment Act in force, government circulars from the minister, best practice and the 

Council culture. This document will go a long way in steering and the Council on course in staff matters. It 

will ensure that fairness and excellence upheld. 

HR Software. 

Our web developers have tirelessly worked on a new HR Information system software. This software has 

modules on staff data, leave management, training, recruitment and performance management. The system 

is expected to ease processes in the department through automation of procedures. 

The HRMIS will also provide various management reports required on a day to day basis as well as for 

monthly reports. 

20 





ORGANISATIONAL PERFORMANCE INDEX (OPI) 

The National Council for Law Reporting has been a corporate member of Kenya Institute of Management (KIM) since 

February of 2007 and has participated in COYA awards both in 2007 and 2008. 

It is with this background that we are pleased to be fully involved in Organizational Performance Index programme, 

which was developed in response to feed back from organizations participating in the COYA, who called on KIM to 

refine the assessment methodology of organizations in order to emphasize the relationship between instilling smart 

business processes and generating strong business results. 

OPI is thus an excellence model that generates a rating (between 1 and 10) setting a minimum score that organizations 

must attain to remain competitive. This is on a rolling basis; meaning year in, year out the performance of our organization 

will be monitored. 

A good rating means that the organization has applied strategies that drive effectiveness and competitiveness. As NCLR, 

our mission is to provide access to public information to aid in administration of and access to justice, the knowledge 

and practice of law and development of jurisprudence. OPI will thus be an instrument to help us drive our values of 

professionalism, provide quality and excellent service, allow easy access to public legal information, reliability, integrity, 

innovation and team work and finally to be open, transparent and accountable with public resources. 

The thorough self assessment that NCLR will go through under the OPI, will:- 

• allow us to analyze our productivity 

• reveal our true performance enabling us to build relevant and targeted business strategies for the future 

• position our leadership teams to drive continuous improvement 

• empower us to benchmark our performance with industry peers and against international standards 

• provide forums for us to share our industry’s best practices 

• define our competitiveness with one great score 

Just recently, May 24 and 25 th 2010, Mutindi Musuva (Head of HR) and Racheal Mwaura (Ass. Projects officer) 

participated in the first COYA Inter company visit out of Nairobi. This was in Mombasa and the companies visited 

included Kenya Petroleum Refineries, who won best Human Resources Management-2009, Bamburi Cement who won 

the Environmental Management Practices Award and also 1 st Runners up Company of the Year Award 2009 and Mabati 

Rolling Mills who won Corporate Citizenship, Quality Management and Overall Company of the Year. The company visits 

is an opportunity for the participating companies to share known and proven management and leadership practices. 

We are looking forward to embracing OPI as we seek to sharpen our competitive edge. 


21



NCLR HOLDS FIRST STRATEGIC PLANNING 

RETREAT 

By Racheal Mwaura, Programme Officer 


regulations and guidelines governing the affairs of state 

corporations and the formulation of a working draft/first 

version of the proposed strategic plan. 

One of the sessions during the Council Straff’s Strategic 

Planning Retreat 

Racheal Mwaura 

Programme Officer 

For an organization, the lack of a vision, mission, 

statement of values and a strategic plan results in a 

reactionary, uncoordinated and fire-fighting approach 

to strategic issues and frustrates the expectations of the 

organization’s stakeholders. Organizational strategic 

planning is the means by which an organization 

articulates its mandate and charts out the manner in 

which it proposes to hone its resources towards the most 

effective way of fulfilling that mandate. 

In order for it to be effective, a strategic plan needs to 

have the input, understanding and endorsement of all the 

organization’s employees, who are in fact an important 

constituency among an organization’s stakeholders. 

For a long time, the National Council for Law Reporting’s 

strategic plan has been subsumed under the larger 

Strategic Plan for the Judiciary, its parent ministry. 

However, best practices in organizational operations 

require that an organization, even a semi-autonomous 

state agency such as the Council, should have its own 

strategic plan embodying its vision, mission, values, 

functions and setting out a plan of activities for fulfilling 

those functions. 

In this regard and in order to align the National Council 

for Law Reporting with Vision 2030 and the Judiciary 

Strategic Plan 2009-2012, the Council’s staff retreated 

to the leafy and tranquil surroundings of Nyeri town 

between June 17-19 2010, to focus their minds on 

the formulation of the Council’s Strategic Plan for the 

period 2009-2012. The retreat was the culmination of a 

series activities undertaken by the Council in late 2009 

which included stakeholder consultation, departmental 

briefings, a review of laws, 

During the retreat, the Council’s staff had the benefit 

of the technical advice of Mrs. Florence Mutua from 

the Directorate of Personnel Management (DPM) and 

Mr. Kennedy Nyambati from the Inspectorate of State 

Corporations who provided invaluable input in the areas 

of personnel management and corporate governance 

respectively. The retreat was presided over by Mr. Michael 

M. Murungi, the Ag. Editor/CEO of the Council. It was 

moderated by Ms. Esther Nyaiyaki, the Ag. Snr. Assistant 

Editor while Ms. J. Kambuni, Ms. Njeri Kamau and Mr. 

Andrew Kiarie served as the rapporteurs. 

The working draft of the proposed strategic plan was 

subjected to the consideration of a full-plenary of the 

Council’s staff who made key contributions on the vision, 

mission, values, mandate, functions and strategic activities 

for Council. The retreat’s deliberations were informed by 

Vision 2030, the Judiciary’s Strategic Plan and a number 

of related documents, including the strategic plans of 

stakeholder institutions, the Constitution of Kenya and 

the laws and regulations governing the affairs of state 

corporations. 

Beyond presenting their views on the overall draft 

strategic plan for the Council, the staff cascaded 

the plan down to the departmental level with every 

department drawing from the draft organizational plan 

to formulate and present its own mission, functions, 

organogram, strategies and a plan of activities complete 

with budget and performance matrices. The plenary 

and departmental sessions gave ample opportunity for 

individual input ensuring that all departmental staff had a 

clear understanding of their role in the attainment of not 

only the Council’s mission but also the Judiciary’s vision 

as well as Vision 2030. 

22 





The National Council for Law Reporting staff during the recent Strategic Planning Retreat held in Nyeri between June 17-19 2010. 

With them were Mr. K. Nyambati (seated third from left) from the Inspectorate of State Corporations and Mrs. F. Mutua (seated third 

from right) from the Directorate of Personnel Management in the Ministry of Public Service. 

By the close of the retreat, the deliberations had crystallized into a clear picture of what the members of the Council’s 

staff considered should be the direction in which the organization should be headed, the individual and departmental 

roles and activities necessary to steer towards the direction and an estimate of the resources required to get there. 

The curtain closed on the retreat with a presentation of certificates of participation to all the members of staff followed 

by an informal dinner. 

The Draft Strategic Plan that was the result of the retreat will be considered for adoption and/or amendment before 

a meeting of the Council’s Board. 

One of the sessions during the Council Straff’s Strategic 

Planning Retreat 


23




TALENT BEYOND LAW REPORTING; NCLR’S PARTICIPATION AT THE 

‘UWAZI FOOTBALL TOURNAMENT’. 

NCLR Senior Law Reporter and 

Football Team Coach, 

Cornelius W. Lupao, gives team 

members dribbling tips. 

On May 1, 2010 the International Commission of Jurists-Kenya section (ICJ) held 

an inaugural football tournament dubbed “The Uwazi Cup” at the Impala Club 

Grounds. This tournament was co-sponsored by the International Commission 

of Jurists (Kenya) and the National Council for Law Reporting. By launching 

and hosting the annual Uwazi Football Tournament, ICJ Kenya sought to raise 

awareness and advance the campaign on the need for a Freedom of Information 

law. The tournament was convened for media, business, legal and corporate 

organizations. 

The theme for the tournament was “Information for Sustainable Development” and 

the guest of honor was Hon. Mutula Kilonzo Minister for Justice, National Cohesion 

and Constitutional Affairs. The tournament was a ‘’six a side” with teams allowed 

to have ten players each. Some of the participants included; the Standard Group 

LTD, the Kenya Human Rights Commission, the National Council for Law Reporting 

(Kenya Law Reports), Transparency International and the Kenya Anti Corruption 

Commission, just to mention a few. 

The Council presented a formidable team from among its staff members, led by 

the Ag. C.E.O, Mr. Michael Murungi that felled many a team including Royal Media, 

which the Council beat 2 goals to nil, the Law Society of Kenya, which the Council 

beat 1 goal without reply and went on to draw against the Centre for Governance 

and Development, FIDA-Kenya and the International Commission of Jurists-Kenya 

section, to emerge tops in the pool. 

Buoyed by an ecstatic cheering squad, the Council’s team soldiered on with 

determination to lift the trophy until it was narrowly bundled out of the tournament 

at the semi-finals. The Council‘s team, however left the grounds with heads high 

having had incredible fun and an opportunity to interact with a horde of professionals from other spheres. 

The National Council for Law Reporting’s football Team (NCLR) with its CEO, Mr. Michael Murungi (blowing Vuvuzella) pose for a 

group photo before the begining of “Uwazi Football Tournament” 

24 





The Council looks forward to the up-coming Chief Justice’s Cup where it will, once again, put on display the staff 

members’ talent beyond Law Reporting. 

By Cornelius W. Lupao, 

Senior Law Reporter 

1 

2 

3 4 

1 and 2 above: The NCLR football team in celebration after hammering the Royal Media Group 2 goals to nil and the Law Society 

of Kenya, 1 nil respectively, while 3 and 4 the Council’s team Coach Mr. C W Lupao shouts instructions to the team in action.Below; 

Senior Ass. CEO, Esther Nyaiyaki (centre) shares a joke with Team members after a win. 


25




LAWS OF KENYA DEPARTMENT REPORT 

Mrs. Ann Asugah, Ag. Asst. Editor 

COMMITTEE ON DELEGATED LEGISLATION WORKPLAN AND STRATEGIC PLANNING 

WORKSHOP, MOMBASA , 4 th -7 th May 2010 

The National Council for Law Reporting (NCLR) was invited the by the Committee on Delegated Legislation of 

Parliament to its Work Plan and Strategic Planning Workshop in Mombasa on 4 th -7 th May 2010 to make a presentation 

on the development, maintenance and updating of a subsidiary legislation database. The Laws of Kenya Department 

was tasked with making the presentation to the Committee. 

The Committee on Delegated Legislation is one of the new Committees in Parliament established by the new Standing 

Orders under Standing Order 197 and mandated to; 

“ensure that statutory instruments are laid before the house as may be provided under any written law and scrutinize 

such instruments to ensure that they are consistent with the parent statute.” 

Mrs. Ann Asugah Ag. Ass. Editor (right), expounding a point during her Presentation to the 

Committee on Deligated Legislation 

Further, Standing Order 197 provides that unless otherwise provided or expressly by necessary implications under 

any written law, all subsidiary legislation shall be tabled before the House upon publication in the Kenya Gazette. The 

Committee may recommend that the House resolves that any particular subsidiary legislation be annulled. 

For the Committee to carry out its mandate effectively, it would require to have a working database of all subsidiary 

legislation made under all Acts of Parliament. 

NCLR being the delegatee of the Attorney General’s powers of law revision maintains a database of all laws of Kenya 

which includes subsidiary legislation. During the workshop, the Committee members appreciated the strides made 

by NCLR in digitizing all legislation and availing the same for free on its portal www.kenyalaw.org. The workshop came 

up with a working draft of its strategic plan for 2009-2012 and a work plan for its implementation. 

The Committee co-opted NCLR in its work plan and expressed its desire to establish a working relationship with 

NCLR in the area of developing and maintaining a database of subsidiary legislation. NCLR is committed to supporting 

Government institutions to attain their strategic objectives by ensuring the free access to updated national legislation 

in a timeously manner. 

26 





GREY BOOK ADVERT 


27



Mr. Nicholas Okemwa, Snr. Law Reporter, 

Head of R & D Department 


RESEARCH AND DEVELOPMENT DEPARTMENT 

UNITED NATIONS JURIDICAL YEARBOOK 

The National Council for Law Reporting (NCLR) as the official 

law reporter for the Republic of Kenya has a vast database of 

judicial decisions. It is for this reason that NCLR was requested 

by the Judiciary to identify and forward cases touching on the 

legal status or privileges and immunities of the United Nations 

and specialized agencies for the United Nations Juridical 

Yearbook of 2009. 

The United Nations Juridical Yearbook has been published on an 

annual basis reviewing legal developments starting from 1963. 

This was pursuant to resolution 1814 (XVII) of 18 December 

1962, where the General Assembly requested the Secretary- 

General to publish a juridical yearbook, which would include 

certain documentary materials of a legal character concerning 

the United Nations and related intergovernmental organizations. 

The General Assembly considered that one of the most effective means of furthering the development of international 

law consisted in promoting public interest in this subject and using the media of education and publicity to familiarize 

the general public with the principles and rules that govern international relations. It further considered that greater 

knowledge of the aims, purposes, and structure of the United Nations constituted another positive method of promoting 

the development of international law. The United Nations Juridical Yearbook is therefore of great import to all and 

sundry. 

The Research and Development Department was tasked with this request and undertook an analysis of the 2009 

decisions. The search yielded one result namely Tanad Transporters Ltd v United Nations Children’s Fund [2009] 

eKLR. 

Briefly the facts were that the applicant, who had been contracted by the respondent to provide transportation services, 

filed an originating summons pursuant to the provisions of the Arbitration Act and Section 3A of the Civil Procedure Act 

seeking to compel the respondent to submit to arbitration within twenty one days upon issuance of the court order and 

in the alternative, be granted leave to commence suit against the respondent. This was because, the applicant claimed, 

the respondent had declined service citing diplomatic immunity and had even denied access to the process server to its 

offices following a dispute regarding the said contract. The court however, directed the applicant to make arguments 

with regard to whether the court had jurisdiction to hear the application in light of the fact that the defendant was a 

United Nations organization and therefore was accorded immunity from civil proceedings by the Republic of Kenya. 

The applicant contended that the respondent, being a party to an agreement that had an arbitration clause, and which 

agreement was of a commercial nature, was precluded from invoking its diplomatic immunity 

The issue for determination by the court was whether the court had jurisdiction to entertain a suit where one party 

had immunity from both criminal and civil proceedings. 

Held: 

1. The transportation agreement between the applicant and the respondent related to the official function of the 

respondent. The respondent therefore had full diplomatic immunity from court proceedings. The Kenya Arbitration 

Act, 1995 and the Civil Procedure Act did not apply. 

2. The applicant could not therefore invoke the provisions of the said Kenyan municipal law to compel the respondent 

to submit to arbitration. The applicant had no choice but to commence arbitration proceedings under the UNCITRAL 

Arbitration Rules. 

3. The court lacked jurisdiction to hear and determine the dispute between the applicant and the respondent, even 

in the circumstances where the applicant established that there existed an arbitration clause. Further, the respondent 

had full diplomatic immunity from civil proceedings in the court under The Privileges and Immunities Act and the 

Vienna Convention on Diplomatic Relations, 1961. 

28 




FEATURE CASE 

The Constitutionality of the Kadhi’s Courts 

Jesse Kamau & 25 others v Attorney General [2010] eKLR 

Misc. Civil Application 890 of 2004 

High Court at Nairobi 

JG Nyamu JA & RVP Wendo, MJA Emukule JJ 

May 24, 2010 

This was an application filed in 2004 by 24 Clergy persons from various religious institutions challenging the proposal 

to include the Kadhi’s Courts in the then Proposed New Constitution of Kenya (commonly referred to as the Zero Draft 

or the Bomas Draft). The suit was filed against the Attorney General and the now defunct Constitution of Kenya Review 

Commission. Though the Supreme Council of Muslims was served with the application, it did not participate in the 

proceedings whether as an interested party or in any other capacity. The Hindu Council of Kenya had been served with 

the application and it filed an affidavit in which it raised concerns sympathetic to the applicants, basically that inclusion 

of the Kadhis courts in the Bomas Draft appeared to favour one religion against another. While the hearing of the 

application was pending, the Proposed Constitution was rejected at a public referendum in 2005 and the Commission 

was wound up. In fact, the hearing of the case started after the referendum had been done. Ms. Abida Ali Aroni, who 

was then the Chair of the Constitution of Kenya Review Commission (and at the time of the judgment a Judge of the 

High Court) filed a replying affidavit opposing the application. The Commission was represented by the Hon. James A. 

Orengo while the state was represented by Mr. A. Ombwayo, Principal Litigation Counsel. 

Among the declarations sought by the applicants: 

• That Section 66 of the Constitution of Kenya which introduces and entrenches Kadhis’ Courts in the Constitution 

infringed on the Constitutional rights of the applicants to equal protection of the law embodied in sections, 

70, 78, 79, 80 and 82 of the Constitution and to that extent was discriminatory, unconstitutional and should 

be expunged in its entirety from the Constitution; 

• That section 66 of was inconsistent with section 82 of the same Constitution and was therefore null and void; 

• That any provision similar to section 66 of the Constitution of Kenya in word or effect as proposed in the draft 

otherwise known as the “Zero” or “Bomas Draft” or any other draft infringed on the right of the applicants and 

was discriminatory, unconstitutional, null and void and of no effect; 

• That the enactment of the Kadhis’ Courts Act contravened the Constitution and was to that extent null and 

void; 

• That the financial maintenance and support of the Kadhis’ Courts from public coffers amounted to segregation, 

was sectarian, discriminative, unjust and amounted to separate development of one religion and religious 

practice and therefore unconstitutional. 

Some pertinent arguments 

• Jurisdiction: The state argued that the High Court had no jurisdiction to strike out section 66 of the Constitution 

and that the court had only jurisdiction to strike out a law other than a provision of the Constitution. Counsel 

urged that section 66 of the Constitution is an existing provision and cannot be struck out as being contrary to 

section 3 of the Constitution as no provision of the Constitution is superior or inferior to any other provision 

of the Constitution. It was argued that an order of the court nullifying any provision of the Constitution would 

itself be unconstitutional. 

• Separation of powers: That the application itself was an infringement of the doctrine of the separation of 

powers as envisaged under section 23 and 24 of the Constitution and that the doctrine of a secular state was 

not clearly defined in the Constitution. 

• That section 66 of the Constitution could only be altered in the manner prescribed by sections 46-49 of the 

Constitution, namely, through Bills passed by the National Assembly and assented to by the President. Counsel 

also argued that the Judicature was itself a creature of the Constitution and it had no power itself to alter any 

entrenched or other provision of the Constitution. 

• It was argued on behalf of the Commission that at the time the application was filed, the question whether 

or not it would be right to entrench the Kadhis’ Courts in the proposed Constitution was under negotiation 

before the Commission, Parliament, the Referendum and the President, and that these government organs were 

better suited to resolve the issue. Counsel for the Commission therefore submitted that the subject matter of 

the application was an issue beyond the courts and judicial processes. 


29



FEATURE CASE 

Findings 

• The general and overarching principle of constitutional law as entrenched in Section 70 of our Bill of Rights 

(Fundamental Rights and Freedoms of the Individual) is that the personal law of one community, religious 

or otherwise, cannot override or qualify the Bill of Rights - fundamental rights guaranteed under the 

Constitution. 

• The doctrine of separation of Church and State provides that as between the State and religion each had its 

own sphere, the former of law making for the public good, and the latter moral welfare of individuals and their 

God or creator. 

• The court did not have jurisdiction to strike out section 66 of the Constitution even if it contradicted section 

82 of the Constitution. However, there are some provisions of the Constitution which are superior to others. 

For instance the Bill of Rights, which are also referred to as universal, inherent and natural rights, cannot be 

taken away by the State. In addition the courts have the jurisdiction to declare conflict or inconsistency in the 

constitutional provisions, or to declare whether or not the provisions are in conflict with any values, principles 

or purposes of a democratic constitution such Kenya’s. 

• The court would not have a role in the alteration of section 66 of the Constitution or any other section of the 

Constitution. The process of altering the section or indeed any other provision of the Constitution lay with the 

National Assembly. Whereas an amendment may be challenged in court once enacted into law, only Parliament 

has the necessary legislative mandate to alter the provision by way of amendment provided the provisions of 

section 47 on amendments are satisfied. The applicant’s prayer to declare section 66 of the Constitution void 

was therefore not tenable and it would be declined. 

• The Judicature too was a creature of the Constitution, and whereas it has power to interpret any provision of 

the Constitution (under sections 67, 84 and 123(8) of the Constitution), that power is limited to interpretation 

and constitutional judicial review but not alteration of the Constitution. Under its constitutional judicial review 

jurisdiction the court may grant a declaration in the event of conflict of provisions. 

• Parliament does not have the power to take away the basic structures of the constitutional ‘sanctum’ - the 

Bill of Rights, the security of tenure of Judges, which is the cornerstone of the rule of law, and the democratic 

provisions of Section 1A of the Constitution. Secondly, it is only the people who can enact a new constitution. 

• Since the drafters of both the Independence Constitution and the amendments thereto had in mind the 

territory that comprised the former Protectorate, it cannot be said that it was a mere error or omission when 

they retained language in the Constitution that the Kadhi’s courts were clearly restricted to operate within the 

former Protectorate which by definition extended to the ten miles beyond the Indian Ocean shoreline. For the 

Kadhis’ Courts Act, though well intentioned, to purport to extend the jurisdiction of Kadhis’ Courts to Nyanza 

and Western Provinces, Rift Valley, Central, Eastern Provinces and Nairobi, areas well beyond the former 

Protectorate, is clearly in breach of Section 179 (4) of the Independence Constitution, that is, Section 66(4) of 

the current Constitution. 

• The entrenchment of section 66 establishing the Kadhis’ Courts in the Constitution is certainly inconsistent 

with section 65 which grants Parliament power to establish other courts subordinate to the High Court. Section 

66 favoured one religion in preference to other faiths, Christianity, Hindu, Buddhist, Bohras, and Indigenous 

religions and culture. 

• Section 78 of the Constitution provides for freedom of religion, for a person to manifest and propagate his 

religion or belief, in worship, practice and observance, at his own expense. This provision covers all religious 

communities, including Muslims and that being the anchor provision on freedom of worship and the observance 

of religion, section 66(4) of the Constitution on Kadhis’ courts was superfluous. Territorial jurisdiction at this 

time and age curtails the freedom of worship or religion. 

• Section 4(2) (b) of the Kadhis’ Courts Act was inconsistent with section 66(4) of the Constitution and was 

therefore void to the extent of the inconsistency. 

• Section 66 of the Constitution on Kadhis’ courts was inconsistent with the secular nature of the state. The 

section does not advance the values and principles of the constitution which characterize a secular state. 

• The real anchor of freedom of worship and conscience in Kenya is not Section 66 of the Constitution but Section 

78, and for this reason, Section 66 is superfluous and does not add or offer any additional rights not covered 

by section 78 which applies to all faiths in Kenya. On the contrary at this time and age it restricts the operation 

of Kadhis’ courts to the ten mile former Protectorate whereas section 78 has no such territorial restriction 

as regards freedom of conscience religion, or worship etc. Section 66 is also in conflict with section 65 of the 

Constitution which contemplates subordinate courts of universal application in the Republic of Kenya. 

30 




FEATURE CASE 

Final Orders/Declarations: 

• “We grant the declarations sought in prayer 1 limited to declaring that section 66 is inconsistent with sections 

65 and 82 and in respect of section 82 is discriminatory to the Applicants in its effect. 

• As regards paragraph 2 of the prayers we find and hold that sections 66 and 82 are inconsistent with each 

other, and that section 66 is superfluous but it is not the court’s role to expunge it. It is the role of Parliament 

and the citizenry in a referendum. 

• As regards prayer 3, we hold and declare that any provision similar to section 66 in any other Draft of a 

Constitution in word or effect is not ripe for determination. 

• The enactment and the application of the Kadhis’ courts to areas beyond the 10 mile Coastal strip of the 

Protectorate is unconstitutional. 

• We grant prayer 5 that the financial maintenance and support of the Kadhis’ courts from public coffers amounts 

to segregation, is sectarian discriminatory and unjust as against the applicants and others and amounts to 

separate development of one religion and religious practice contrary to the principle of separation of state and 

religion (secularism) and is therefore contrary to the universal norms and principles of liberty and freedom of 

religion envisaged under sections 70, 78 and 82 of the Constitution and also against the principle of separation 

of state and religion as captioned by section 1A of the Constitution. 

• We also find and hold that the purported extension of the Kadhis’ courts through the enactment of the Kadhis’ 

Courts Act beyond the former Protectorate areas contravenes section 64(4) and section 4(2) (b) of the Kadhis’ 

Courts Act and is therefore unconstitutional, null and void to the extent of the inconsistency and for that reason 

a declaration in terms of prayer 6 is granted. 

• We grant a declaration that any form of religious courts should not form part of the Judiciary in the Constitution 

as it offends the doctrine of separation of state and religion. 

• We grant prayer 13 and declare that the entrenchment of the Kadhi’s courts in the Constitution elevates and 

uplifts the Islamic religion over and above the other religions in Kenya which is inconsistent with section 78 and 

82 of the Constitution and discriminatory in its effect against the applicants and Kenyans of other religions. 

• We further find and hold that prayers 9, 10, 11, 12, 14 & 15 relating respectively to the Bomas Zero Draft and 

an Islamic Agenda are matters which are moot and speculative and are not justiciable and decline to grant 

them.” 

Procedure in the Discipline And Removal of Judges 

Republic v Chief Justice of Kenya & 6 others ex-Parte Ole Keiwua [2010] eKLR 

High Court of Kenya at Nairobi 

M. Apondi, G. Dulu & M. Warsame JJ 

April 20, 2010 

Judicial Officer – judge - discipline and removal of judges – disciplinary procedure – power of the Chief Justice to make a 

representation to the President that the question of the removal of a judge ought to be investigated – how such power is to 

be exercised – role of the Judicial Service Commission before such a power is exercised – whether under the rules of natural 

justice and legitimate expectation the judge who is the subject of the representation should be accorded an opportunity to 

respond to the allegations against him before the representation is made – where the representation is made before the 

judge is heard and a Tribunal appointed to investigate the judge’s conduct – whether the making of the representation 

and the appointment of the Tribunal was unconstitutional – matters to which the jurisdiction of such a Tribunal should 

be restricted - Constitution section 62. 

Immunity – presidential immunity – incidence and scope of the President’s immunity from suit – whether the immunity was 

absolute – distinction between the President’s private and personal acts and official acts - whether a sitting President can 

be subjected to a court process for violation of the Constitution or the public interest – whether persons exercising duties 

embodying the political will of the President immune from judicial review for actions contrary to the law - Constitution 

Section 14. 

Immunity – judicial immunity – immunity of a judicial officer from suit – immunity of the Chief Justice – scope of the 

immunity – distinction between the Chief Justice’s duties as a judge and his duties as the administrator or head of the 

Judiciary - whether in the exercise of the latter duties he would be amenable to judicial review and to the supervisory 

jurisdiction of the High Court – power to make a representation to the President on the investigation of the conduct of a 

judge – how such power is to be exercised - Constitution section 62 

Judicial Review – nature and scope of judicial review – whether judicial review proceedings may be brought against a 

sitting President and/or the Chief Justice – Constitution section 62. 




FEATURE CASE 

Judicial Review - practice and procedure – pleadings – pleadings to be filed and the time for filing them in judicial review 

applications - application for leave ‘to be accompanied by’ the statement of particulars and a verifying affidavit – where 

the affidavit and statement are filed on a different day after the application for leave by chamber summons – whether the 

application was valid – whether the respondent had been prejudiced – Civil Procedure Rules Order 53 rule 1(2). 

In March 2003, ‘following widespread and persistent allegations of corruption in the Judiciary’, the Chief Justice of 

the Republic of Kenya appointed the Integrity and Anti-Corruption Committee of the Judiciary chaired by the Hon. Mr. 

Justice A. Ringera, a Judge of Appeal (The Ringera Committee). The Committee’s terms of reference were to investigate 

the allegations, identify corrupt members of the Judiciary, recommend disciplinary or other measures and address 

any other related matters. 

The Committee carried out its work and submitted its report to the Hon. the Chief Justice in September, 2003. In the 

report a number of Judicial Officers were adversely mentioned. They included the applicant, who was both a Judge of 

the Court of Appeal of Kenya and the President of the East African Court of Justice. Upon receiving the report, the Chief 

Justice made a representation to the President, H.E. Hon. Mwai Kibaki under section 62(5) and 64(3) of the Constitution 

and by a Gazette Notice in December 2003, the President appointed a Tribunal whose terms of reference were: 

‘To investigate the conduct of judges of Appeal [implicated in the Ringera Committee Report] including, but not 

limited to, the allegations that the said judges of Appeal have been involved in corruption, unethical practices 

and absence of integrity in the performance of the functions of their office [and] to make a report and its 

recommendations thereon……In the meantime, the said Judges of Appeal stand suspended from exercising 

the functions of their office with immediate effect’. (Emphasis supplied). 

About a year after his suspension, the applicant was served with an undated list of allegations that were according to 

the Tribunal, to constitute the subject matter of its investigations. The applicant then filed judicial review proceedings 

seeking orders of certiorari, judicial review and mandamus against the Hon. the Chief Justice (the 1st respondent), the 

members of the Tribunal and its Assisting Counsel (the 7th respondent). The application was grounded on two main 

grounds: that the list of allegations before the Tribunal was illegal, unconstitutional and outside the mandate of such a 

Tribunal as it did not flow from any representation made to the President by the Chief Justice; and that the Tribunal’s 

investigation would be contrary to the Constitution, natural justice and the legitimate expectation of the applicant as 

he had not been afforded the opportunity to rebut any allegations against him before the representation was made to 

the President. The applicant also set out the charges leveled against him by the Tribunal and challenged their validity 

and justiciability. 

State Counsel representing the 1 st -6 th respondent raised a preliminary objection that the application did not comply 

with Order 53 rule 1 (2) of the Civil Procedure Rules which required an application for leave to file judicial review 

proceedings to be accompanied by a statement setting out the name, description of the applicant, the reliefs sought, 

the grounds on which it is sought and an affidavit verifying the facts relied on. The affidavit and the statement had 

been lodged a day before the Chamber Summons application. 

The second objection was that the High Court had no jurisdiction to entertain the application because one of the 

respondents was the Chief Justice, who was both a Judge and the holder of a constitutional office, and his exercise of 

constitutional powers as the administrator of the Judiciary could not be questioned by the High Court through judicial 

review. Secondly, it was submitted that to question the procedure adopted by the Tribunal was an affront to the President 

who was the donor of the power of the Tribunal to make rules of procedure, and that therefore to question the members 

of the Tribunal was to challenge the President in the exercise of his constitutional powers. 

Counsel assisting the Tribunal also raised a preliminary objection that he had been wrongly and improperly joined 

into the proceedings. 

Held: 

1. The affidavit and the statement accompanying the judicial reciew application were additional and complementary 

to the Chamber Summons and where they are lodged a day before the Chamber Summons that does not change or alter 

the validity of the Chamber Summons. 

2. Further, the administration of justice requires that the substance of disputes should be investigated and decided 

on their merits and that any procedural error or lapses should not be used by a party to defeat the case of the other 

party unless there is evidence that he has suffered or is likely to suffer substantial injustice or prejudice. There was 

no injustice or prejudice that was suffered by the respondent as a result of applicant’s failure to file all the documents 

on the same day and to ensure that the application for leave was accompanied by a verifying affidavit and statement 

of facts. 

32 




FEATURE CASE 

3. Moreover, nothing could take away the court’s inherent power to do justice. To allow the respondents’ preliminary 

objection would not inspire confidence and good sense in the administration of justice. Justice demanded that the 

Court should dismiss the objection. 

4. Kenya’s legal system is primarily intended or designed to give effective remedies and reliefs whenever the 

Constitution of Kenya is threatened with violation. As a part of reasonable, fair and just procedure to uphold the 

constitutional guarantees, the right to a fair trial entails a liberal and dynamic approach and not rigid and rudimental 

ways in order to ensure the grievances of an individual are addressed by the court no matter the name and the identity 

of the transgressor. 

5. When the law imposes on the Executive legally prescribed duties and responsibilities the performance of which 

depends upon the enhancing or handling of public interest, the political officers of the executive must act according 

to the laws of the land. If public officers including the President fail to act, and their failure harms the interests of the 

public and rights of individual citizens, their actions or omissions are subject to judicial review. 

6. The immunity from civil and criminal proceedings given to the President under section 14 of the Constitution cannot 

be absolute and is only meant to protect the interest of the wider citizens who have a stake in the presidency or who 

have elected the president to be the symbol of unity and protection of collective and individual rights of all citizens. The 

rationale for official immunity applies where only personal and private conduct by a president is at issue. It means that 

there shall be no case in which any public official can be granted any immunity from suit from his unofficial acts. 

7. The spirit and intention of the Constitution did not impose a blanket immunity that a sitting President cannot be 

sued for failing to observe the law or failing in his responsibility to do an act. A sitting President can be subjected to a 

process of a court when there is a clear violation of fundamental rights and environmental issues. If a sitting president 

pertinently and grossly contravenes a clear provision of the Constitution, he cannot be shielded from the intervention 

of the court by way of judicial review or declarations under section 84 of our Constitution. 

8. A party affected by the decision of a sitting president can rightly and legitimately seek the intervention of the High 

Court for redress or remedy by way of judicial review or by way of constitutional declaration. A constitutional office 

holder who is wrongly or illegally sacked by a sitting President can approach the High court by way of judicial review 

for redress. 

9. Judicial review proceedings are neither civil nor criminal proceedings and therefore cannot possibly fall within 

the ambit of section 14(2) of the Constitution and are therefore excluded from the protection afforded therein to the 

President against civil proceedings. 

10. In so far as the President appointed the tribunal and in so far as he was not a party to the Judicial Review 

proceedings, the Court was not in a position to say there was an omission that was directly committed by the president 

the case at hand. 

11. While the Chief Justice was immune from suit for matters directly related with exercise of his judicial functions, 

in making the representation to the President for the appointment of a Tribunal to investigate a judge under section 

62(5) of the Constitution, the Chief Justice does not exercise a judicial function but a constitutional and administrative 

function as the head of the Judiciary, for which he would be amenable to the supervisory jurisdiction of the High 

court and to judicial review orders. In the exercise of his constitutional mandate, the Chief Justice is amenable to the 

supervisory jurisdiction of the High Court. 

12. Counsel assisting the Tribunal was not a member of the Tribunal as he had not been gazetted as such. He was not 

an authority, public or quasi-judicial body to make a decision in the matter affecting the applicant. He did not investigate, 

make a report and/or make an order against the respondent. His role was to assist and he remained a servant of the 

tribunal in the performance of its mandate. He was therefore wrongly and improperly joined into the proceedings. 

13. A judge may only be removed from office in accordance with section 62 of the Constitution. Corruption or related 

complaints against a judge is a factor that there exists circumstances that would make him unable to perform his 

constitutional functions as a judge. A Judge can be removed from office by the President if the question of his removal 

has been referred to a tribunal and the tribunal has recommended to the President that the judge ought to be removed 

from office for inability or for misbehavior. 

14. Under section 61(2) of the Constitution, a Judge is appointed after the President has received the advice of the 

Judicial Service Commission (JSC) that a person is fit and competent to hold the office of a Judge. When a question 

arises as to the removal of a Judge, it is essential to seek and obtain the advice, guidance, contribution and direction of 

the same body that gave the advice to the President that it was okay to employ him in the first instance. Since the Chief 

Justice as the Chairman of the JSC had mandated the Ringera Committee to conduct investigations into the conduct of 

judicial officers, the JSC ought to have been the first branch that ought to have authorized the next step. 

15. The role of the JSC would be to determine whether the act complained about is of the nature and degree to 

qualify as misconduct sufficient to set in the processes that may lead to an adverse representation being made to the 

President. Such an examination would include seeing and hearing the complainant and the Judge separately for that 

would serve to inform and enhance a balanced and proper evaluation of the circumstances that has arisen which is 

likely to lead to removal of a Judge. 




FEATURE CASE 

16. There was no evidence that the JSC ratified the report of the Ringera committee before the Chief Justice exercised 

his constitutional powers to make a representation to the President to appoint the Tribunal. 

17. The Chief Justice and/or the JSC were perfectly within their powers to appoint the Ringera Committee and the 

Committee was perfectly within its terms to collect information concerning corruption affecting judicial officers. In 

receiving the report from the Committee, the Chief Justice was exercising ministerial powers and in implementing the 

report as when he made a representation to the President, he was exercising constitutional powers conferred under 

section 62 (5) of the Constitution. 

18. The representation to the President to appoint a Tribunal is such a grave and serious matter with severe 

consequences of likely to remove a Judge from office that it is mandatory for the Judge to be given a hearing either by 

the JSC or by the Chief Justice before the representation is made to the President. The Judge ought to be heard by the 

JSC prior to the commencement of the removal exercise. Though the Constitution was silent on this, a presumption 

arose that the Legislature did not intend to deny natural justice to the applicant or to any other Judge. 

19. The Chief Justice had powers to make a representation to the President when a situation arises for the removal of 

a judge. However, in this case he had done or failed to do something in the course of his mandate which was of such a 

nature that his decision was a nullity. He made a decision which he had no power to make by failing to give the applicant 

an opportunity to be heard in accordance with the principles of natural justice. 

20. The applicant had a legitimate expectation to be given an opportunity to answer the charges against him before 

the Chief Justice exercised his constitutional responsibility under section 62(5) of the Constitution and for the Tribunal 

to give him the nature of the charges and complaints immediately it was gazetted and not one year down the line. 

21. The Chief Justice had no jurisdictional powers to make a representation to the President and equally the President 

had no jurisdictional powers to appoint a tribunal when he was not supplied with a written representation showing 

the instances of misconduct or misbehavior that were allegedly committed by the applicant and that were to be 

investigated by the tribunal. 

22. The President had no powers to empower a tribunal to conduct an inquiry or investigation other than or outside 

the representation he received from the Chief Justice. The inclusion of the words ‘including but not limited to’ in the 

gazette notice appointing the Tribunal was a contravention of constitutional powers of the President. In essence the 

powers of the President were restricted to the representation he received from the Chief Justice. 

23. The tribunal misconstrued the words in the gazette notice “but not limited to” by purporting to gather evidence 

and engaging investigators to sustain what they were calling charges against the applicant. That power was ultra vires 

the Tribunal’s mandate and therefore illegitimate and an illegality. The engagement of the tribunal in a mandate outside 

the Constitution was an illegality and unconstitutional. 

Certiorari issued to quash the decision of the Chairman of the Tribunal commanding the applicant to appear before the 

Tribunal and the decision of the Assisting Counsel to the Tribunal to draw and lay an undated list of allegations against 

the applicant; 

Prohibition issued to prohibit the Chairman and Members of the Tribunal from commencing or continuing to carry on 

the investigations into the conduct of the applicant; and 

Mandamus issued directing the Chief Justice to follow the letter and spirit of the Constitution and the rules of natural 

justice if there is any question of the removal of the applicant. 

Advocates: 

Mr. S. Mwenesi for the Applicant 

Mr. A. Ombwayo, Principal Litigation Counsel, for the 1st-6th Respondent. 

Reported by M.M. Murungi. 

34 




FROM THE COURTS — COURT OF APPEAL 

Corroboration of Evidence in Defilement Cases 

Dennis Muthee Chokera V Republic 

Court of Appeal, at Nyeri. 

S E O Bosire, E M Githinji & J G Nyamu. 

Criminal Appeal No. 487 of 2007 

June 25, 2010. 

Reported by Cornelius W Lupao 

Case History 

Evidence-identification-where victim identified the offender with the help of light from a hurricane lamp-whether 

such light could be said to be sufficient for proper identification. 

Evidence-corroboration-where corroborative evidence showed that the complainant was defiled despite the fact that the 

alleged perpetrator was not clinically examined-whether a conviction can solely be based on the corroborative evidence 

despite lack of clinical tests on the alleged perpetrator. 

Criminal Practice and Procedure - evidence- evaluation of evidence-duty of the first appellate court to evaluate the 

trial court’s evidence. 

Constitutional Law - constitutional right-allegation of violation of constitutional right-alleged violation being pleaded 

as an afterthought - effect of. 

The Hon. Mr. Justice 

S. E. O. Bosire 

This was a second appeal against conviction and sentence for the offence of defilement of a girl 

under the age of 16. The appellant’s main grounds of appeal were that his constitutional rights 

were violated since he was held in police custody for three days beyond the Constitutional 

limit of 24 hours as set out in section 72 of the Constitution without any explanation and 

therefore his trial was a nullity; that the intensity of the light from the hurricane lamp which 

was used by the complainant to identify him or to recognize him was not ascertained by 

the court and therefore there was a possibility of mistaken recognition; that the superior 

court erred in inferring that failure by the appellant to cross-examine some witnesses i.e 

PW1, PW2 and PW3 meant that the appellant was the culprit; that the superior court failed 

in not addressing the fact that no matching tests were conducted on the appellant and that 

only clinical tests were selectively done on the complainant and finally that the superior 

court failed to sufficiently evaluate the evidence on record hence reached a verdict that was 

against the weight of the evidence. 

On its part, the prosecution stated that the evidence presented was overwhelming; that the appellant was identified 

by recognition, the hurricane lamp having provided sufficient light for the purpose of identification and immediate 

recognition and that the appellant never raised the ground of infringement of his constitutional right in the trial court 

or in the superior court where he had engaged the services of an advocate. It also added that the sentence was well 

merited. 

Held: 

1. The alleged failure of the court to consider the intensity of the light from the hurricane lamp could not be sustained 

since the appellant had earlier in the day spoken to the complainant in a manner which suggested an intention to 

have sexual intercourse with her. The appellant had told the complainant that he was “taking cows to her mother” 

meaning that the appellant had designs to marry the complainant. In addition the complainant had ample opportunity 

to recognize the appellant. 

2. The allegation that the appellant did not cross-examine certain witnesses could not arise since the superior court 

had made reference to it and because cross-examination had formed the heart of the case before the court. 

3. The failure to have the appellant clinically tested, though ideal, was not fatal to the charge of defilement since the 

clinical evidence contained in the P3 form inter alia, confirmed penetration although the complainant was taken to 

the hospital long after the incident. In addition, the two courts below accepted the evidence of the complainant as 

true and the clinical evidence was corroborative of the complaint’s story. It did not stand alone; it was reinforced by 

the direct evidence of the complainant. 





4. The record reflected a very careful evaluation of the evidence hence; the superior court discharged the duty as 

the first appellate court. 

5. The alleged violation of the appellant’s Constitutional rights was an afterthought in that had the appellant raised 

the challenge in the trial court or the superior court, the State would have had the opportunity of explaining the alleged 

detention. Failure by the appellant to raise the alleged violation of his rights at the earliest opportunity in the two 

courts below constituted a waiver of such rights 

Appeal dismissed. 

Grant of Letters of Administration 

Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR 

Civil Appeal No. 306 of 2004 

Court of Appeal at Nyeri 

P. K. Tunoi, S. E. O. Bosire & J. G. Nyamu, JJA. 

June 24, 2010 

Reported by Nelson Tunoi 

Case History; 

(An appeal from the judgment/order of the High Court of Kenya at Nyeri (Okwengu J.) dated 25th July, 2003 in H. C. 

Success. Cause No. 283 of 1999) 


P. K. Tunoi 

Succession law-probate and administration-grant of letters of administration-appeal against 

judgment of the superior court granting letters of administration to the respondents who were 

brothers of the deceased on grounds of customary law application-where the respondents 

claimed that the deceased was holding the estate in trust for them-whether the superior court 

was right in applying customary law in disinheriting the appellants by virtue of being married 

daughters-whether the appeal had merit-Law of Succession Act (cap 160) sections 32, 33, 71; 

Registered Lands Act (cap 300) sections 28, 29; Judicature Act (cap 8) section 3 (2) 

Succession law-intestacy-distribution of the estate of the deceased-customary law applicationwhether 

it was just to deprive a child of the deceased person of her father’s estate merely because 

she was a married daughter and vest the estate in a brother of the deceased-whether it was 

the intention of Parliament to exclude the application of intestacy provisions of the Succession 

Act (cap 160) to all agricultural land-Law of Succession Act (cap 160) sections 32, 33, 38; 

Judicature Act (cap 8) section 3 (2); Constitution section 82 (1) (4) 

The appellants, who were the surviving daughters of the deceased, lodged an appeal against the decision of the 

superior court confirming the grant of letters of administration to the respondents, who were the brothers of the 

deceased. The deceased had died intestate leaving two parcels of land registered in his own name. The respondents 

alleged that one of the properties was held in trust by the deceased on his own behalf and his brothers. The superior 

court held the view that the respondents were the rightful heirs who survived the deceased since the appellants were 

married and were not entitled to inherit the deceased’s estate. The effect of the decision of the superior court was that, 

although the appellants were children of the deceased, they did not get any share of their father’s estate. During the 

appeal, counsel for the appellants contended that sections 28 and 29 of the Registered Lands Act provided that the land 

registered under the Act belonged to the registered owner absolutely and therefore customary claims were excluded. 

He further argued that the issue of trust should not have been raised in the succession proceedings. The main issue 

for determination was whether the superior court was right in applying customary law in disinheriting the appellants 

merely because they were married daughters. 

Held: 

1. The application of the law on intestacy is excluded only in respect of agricultural land which falls within such areas 

as have been specified in a Gazette Notice signed by the Minister for the time being responsible for administration of 

estates of deceased persons, and it is a question of fact whether or not a particular agricultural land falls outside the 

provisions of Part V of the Succession Act. The onus is on the party who alleges that Part V does apply to a particular 

land to adduce evidence to show such land was Gazetted by the Minister concerned. 

2. Customary law is personal law and is meant to govern rights to land conferred by customary law or customary 

practices of the community or tribe where the land falls. The subject matter in dispute was registered land, which fell 

under the Registered Lands Act (cap 300) and therefore it had ceased to be governed by customary law in view of the 

clear provisions under the relevant law under which the land is registered. 

36 





3. Section 32 and 33 of the Succession Act must be read as being subject to the provisions of section 3 (2) of the 

Judicature Act, which provides that customary law will apply provided it is not repugnant to justice and morality, and 

is not inconsistent with any written law. The written law in this case was the Registered Land Act, which excludes 

customary claims over land registered under that Act. 

4. Parliament did not intend that customary law applies to agricultural land on intestacy, regardless of the result its 

application will give rise to. Therefore, although sections 32 and 33 of the Succession Act appear to mandate the courts 

to apply customary law or custom, in the distribution of a deceased’s agricultural land on intestacy, the application of 

such law is not absolute. It has to be subjected to strictures under section 3 (2) of the Judicature Act. 

5. A grant of letters of administration relates to the net estate of a deceased person. A share of property held in 

trust is not part of the deceased’s estate, but a charge over it and must be identified and excluded from distribution, 

to persons other than those beneficially entitled to it. 

6. The superior court erred in applying customary law without any proper basis, in absence of any Gazette notice to 

show the land fell in such an area in which customary law could be invoked. 

Appeal allowed, judgment of the superior court and any consequential orders set aside. 

Advocates: 

Mr. Kingori for the Appellants 

Mr. Kiminda for the Respondents 

Appellant’s Right to be Presented in the Court Within 14 Days of Arrest 

David Njuguna Wairimu v David Njuguna Wairimu 

Criminal Appeal no. 28 of 2009 

Court of Appeal at Kisumu 

S. E. Bosire, P. N. Waki & D. K. S. Aganyanya, JJ.A 

June 18, 2010 

Reported by Monica Achode 

Case History 

Appeal from a judgment of the High Court of Kenya at Kisii (Musinga & Karanja, JJ) dated 30th October, 2008 in H.C. 

Cr. A. No. 16 of 2006 


D. K. S. Aganyanya 

Constitutional Law – constitutional right – violation of appellant’s right to be presented to 

the court upon arrest within 14 days of such arrest – appellant having been brought to court 

after the prescribed period of 14 days – where the appellant had failed to raise that issue both 

at his trial and in his first appeal – language - failure to interpret the language of the court – 

appellant claiming that the court record was not clear whether proceedings were interpreted 

to the appellant – remedy for breach of constitutional rights – whether a doubt was created as 

to the appellant’s understanding of the proceedings – whether he was precluded from raising 

a constitutional issue at any other stage of the proceedings – Constitution section 72(3) and 

77(2) 

Charge – framing of a charge – duplicity in framing of charge – appellant claiming that the 

addition of the particulars relating to the wounding of the complainant in the robbery charge 

made it duplicitous – charge failing to include the words dangerous” and “offensive” to describe 

the weapons the robbers were armed with – effect of – whether the inclusion of one or more of 

the alternative modes of bringing a robbery charge made it duplicitous 

Criminal Practice and Procedure – appeal – second appeal – appeal against conviction and sentence for the offence of 

robbery with violence – grounds that the superior court failed to consider the defence – duty of the first appellate court – 

circumstances under which a superior court could rehash the conclusion of a lower court – whether this was objectionable 

– Penal Code section 296 (2) (Cap 63) 

The appellant brought the second and final appeal against a charge of robbery with violence contrary to section 296 

(2) of the Penal Code. Amongst the grounds adduced were that; the appellant’s Constitutional rights to be presented 

to the court upon arrest within 14 days of such arrest had been violated, that the language of the court had not been 

interpreted in a manner he could understand, that there had been a duplicity of charges and that the superior court 

had failed to consider all the evidence adduced against the appellant. 


37




Held: 

1. The period of 14 days was not absolute. The prosecution may have had a good reason for not bringing the appellant 

to court within the stipulated 14 days. However, the duty to explain the delay lay upon it. They could only be called 

upon to account for the delay if the issue was raised either at trial or on first appeal. 

2. The record clearly reflected that the appellant fully participated in the proceedings, asked questions in crossexamination, 

himself gave evidence in his defence, and in any case he did not raise the issue in his written submissions 

on first appeal. 

3. The appellant was not without a remedy. The Constitution (section 72 (6)) did make provision for compensation. 

It could not be said that the delay which was in any case, for a short time, vitiated the charges against the appellant. 

Besides, by the appellant not raising the issue at the earliest possible opportunity, he thus created the mistaken belief 

that he had waived his right to raise it. 

4. The words “dangerous or offensive” should have been included to describe the type of weapons the robbers were 

armed with. However, it was quite clear that the prosecution was not relying on the type of weapons the robbers 

were armed with, but the fact that the robbers wounded the complainant, which was one of the alternative elements 

of a robbery with violence charge. The other elements were; if the offender was armed with a dangerous or offensive 

weapon and if the offender was in the company of one or more persons. 

5. The inclusion in one count of one or more of the alternative modes of bringing a robbery charge within the ambit 

of section 296 did not ipso facto make the charge duplex. The robbery charge as framed was not duplex. 

6. The duty of the first appellate court was to analyze and re-evaluate the evidence which was before the trial court 

and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There 

were instances where the first appellate court would, depending on the facts and circumstances of the case, come to 

the same conclusions as those of the lower court. There was nothing objectionable in doing so, provided it was clear 

that the court had considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness 

of the decision. 


Advocates 

Mr. Menezes for the appellant; Miss Oundo, Principal State Counsel 

Power of the Court to Order Advocate to Deliver Cash Account 

Ratemo Oira t/a Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd 

Civil Application 177 & 178 of 2009 

Court of Appeal at Nairobi 

R. S. C Omolo, J. W. Onyango Otieno & D. K. S. Aganyanya (JJ.A) 

June 11, 2010 


Case History 

Application to strike out the record of appeal from the ruling and order of the High Court of Kenya at Milimani Commercial 

Courts, Nairobi (Khaminwa, J.) dated 9th February, 2009 in H.C.C.C. NO. 243 OF 2008 (O.S) 


R.S.C. Omolo 

Civil Practice and Procedure – taxation – appeal – appeal against dismissal of an application 

for taxation by third party – power to order advocate to deliver cash account – delay in 

filing appeal – application to strike out – grounds that the appellant had no right of appeal 

– claims that the was no leave to appeal obtained – certificate of delay having been issued 

by the deputy registrar - computation of time within which the appeal should have been 

filed – whether the certificate of delay could be relied on – whether leave was required to 

file appeals from the decisions on originating summons. 

Civil Practice and Procedure – stay – stay in cases of appeal – stay of recovery of costs 

awarded to the respondent – appeal against conditional stay granted – delay in filing appeal 

– application to strike out – grounds that the appeal had been filed out of time and without 

leave of the court – certificate of delay having been issued by the deputy registrar – claims 

that the certificate of delay was not proper and could not be relied upon to explain the delay 

period – court considerations – whether the cases warranted striking out 

38 





The appellant filed an appeal against a High Court order in respect of taxation proceedings in which the court dismissed 

an application for taxation. This appeal was accompanied by an application seeking for stay of recovery of costs awarded 

to the respondent. The respondent filed counter applications seeking to strike out both the appeal and the application 

for stay. Several grounds were cited among them that the appellant had no right of appeal, that the appeal had been 

filed out of time and had not obtained leave to appeal, and that the certificate of delay issued by the Deputy Registrar 

could not be relied upon because it did not tell the truth on the period of delay. It was argued for the appellant that the 

two appeals had been lodged as of right pursuant to section 66 of the Civil Procedure Act. It was their contention that 

the appeals did lie as of right as they were on matters concerning advocates. 

Held: 

1. The taxation matter emanated from a decision made on an originating summons. Whether such decision was termed 

judgment as was used in the decision of the superior court the effect was the same; such decisions finally determine 

all the issues and were in essence decrees. The provisions of section 66 of the Civil Procedure Act concerning appeal 

from decrees of the high court covered them. Leave was not required to file appeals from the decisions on originating 

summons. The provisions of Order 52 rule 4 (2) allowed for the commencement of disputes between advocate and 

clients by way of originating summons. 

2. The decision being challenged was delivered on 9th February 2009 and the notice of appeal filed a day later. When 

it comes to computation of time within which the appeal should have been filed, this Court has always relied on the 

certificate of delay, unless salient and cogent reasons are set out to challenge the certificate of delay. 

3. The certificate of delay confirmed when delivery of the copies was made to the appellants. That was all that the 

rule requires of the Court to consider. As no evidence had been placed before the court to confirm otherwise that any 

errors of omission or commission in the matter were made by the court. 

4. On the grounds advanced by the respondent there was no cause to strike out the appeal against the conditional stay 

granted in the application for stay of recovery of costs awarded to the appellant. 

Application dismissed. 

Advocates 

Mr. Oira’s for the respondent/applicant; 

Mr. Muthuri, the learned counsel for the appellant/respondent 

Stay of Proceedings 

Kenya Power and Lightning Company v NMG Company & 3 Others (Interested Parties) 

Civil Application No. Nai 74 of 2010 (UR. 152/2010) 


S. E. O. Bosire, E. M. Githinji & J. G. Nyamu, JJ.A. 

June 11, 2010 


Case History: 

(Application for stay of proceedings and the of the High Court of Kenya at Nairobi (Gacheche, J.) dated 16th March, 

2010) 

Civil practice and procedure-stay-application for stay of proceedings and orders of the 

High Court pending hearing and determination of the intended appeal-whether the applicant 

demonstrated that the intended appeal was arguable and that it would be rendered nugatory 

unless a stay was granted-validity of application-Court of Appeal Rules rule 5 (2) (b) 

Civil practice and procedure - judicial review-leave-application for leave to file for judicial 

review orders-whether the application for leave to apply for judicial review orders was within 

the statutory time-whether application for leave for judicial review orders would operate as 

stay-where the superior court ordered that the leave for judicial review application operate 

as stay-validity of application-Law Reform Act (cap 26) section 9 (3); Public Procurement and 

Disposal Act (Act No. 3 of 2005) section 100 (1); Interpretation and General Provisions Act 

(cap 2) section 57; Judicature Act (cap 8) section 10 

The applicant had advertised in the local press inviting tenders for the design, supply and 


J. G. Nyamu 

construction of the Lanet-Naivasha 2nd 33 KV bays and lines on concrete poles. Among 

the companies that submitted their tenders in response to the advertisement were Betterline Company Limited, 


39




Powergen Technologies Limited and the respondent company in this application. The tender was awarded to Betterline 

Company Limited. The respondent lodged a request for review at the Public Procurement Administrative Review 

Board challenging the tender process, after which the Board dismissed the request for review and directed that the 

procurement process proceed. Being aggrieved by the decision of the Board , the respondent moved to the superior 

court by way of an application for judicial review for orders of certiorari to quash the decision of the applicant to award 

the tender to Betterline Company Limited, and further to quash the decision of the Board dismissing the respondent’s 

request for review. The respondent also asked court for orders of prohibition to stop the applicant from signing any 

contract related to the tender in question and further asked court for orders of mandamus to direct the applicant to 

evaluate the aforesaid tender and award the same in compliance with the Public Procurement and Disposal Act and 

its regulations. The application for judicial review was preceded by an application for leave to institute judicial review 

proceedings, with a request that the leave would operate as a stay of the signing, implementation and performance of 

any contract in terms of the tender awarded pending the hearing and determination of the judicial review proceedings. 

The superior court granted the leave and ordered that the leave operate as stay on any contract in relation to the tender 

in question pending hearing and determination of the judicial review proceedings. 

It was against the superior court’s decision that the applicant moved to the Court of Appeal seeking orders that the 

proceedings in the superior court be stayed pending the hearing and determination of the intended appeal. Counsel 

for the applicant contended that the application for judicial review orders was filed out of time and that the public 

interest in the contracts outweighed the commercial interest of the respondent. In response, counsel for the respondent 

contended that the delay in the application fell within the court vacation hence qualified as excluded days according 

to the provisions of Interpretation and General Provisions Act. The issue before the Court of Appeal was whether 

application for leave for judicial review orders would operate as stay. 

Held: 

1. The main ground of appeal that the application for leave was time barred was not frivolous. The applicant had 

intended to show in the appeal that the superior court erred in law in granting leave when the respondent had not 

shown a prima facie case for grant of judicial review orders. 

2. The intended appeal was indeed arguable since the applicant had intended to show in the appeal that the order 

or stay of implementation of the contract was wrongly granted. 

3. It was clear from the application for judicial review that it was the decision of the Review Board dismissing the 

Request for Review which was the proper subject matter of the judicial review, and not the decision of the applicant 

awarding the contract to the 2nd interested party, whether such contract and consequential sub-contracts could be 

rescinded or implementation thereof suspended through judicial review jurisdiction. In those circumstances, the order 

of stay of implementation of the contract was a very drastic order. 

4. Except in very exceptional cases involving jurisdictional and substantial public interest issues and where a stay 

has been granted, there could not be any basis for allowing any such applications in view of the clear provisions of 

section 8 of the Law Reform Act which contemplate only one appeal to the Court of Appeal in terms of section 8(5) and 

only in respect of the actual judicial review orders. In the present case however, there were both jurisdictional and 

public interest elements and therefore the case fell within the exception to the rule. For the same reasons, the court 

considers that the intended appeal could be rendered nugatory since it has often been rightly said that jurisdiction is 

everything. 

5. Per Bosire JA (dissenting): 

Other than the delay in providing services to the people, the other losses, by whichever party, were financial and 

damages would be an adequate remedy for those losses. 

6. Per Bosire JA (dissenting): 

Although the intended appeal was arguable, granting a stay would render the respondent’s suit pending in the superior 

court worthless. 

Application allowed. 

Advocates 

Mr. Kiragu for the Applicant. 

Mr. Mutinda for the 1st Interested Party. 

Mr. Wetangula for the 2nd Interested Parties. 

Mr. Gichuru for the Respondent. 

40 





Termination of Employment 

Jimi Masege v Kenya Airways Limited 

Civil Application 63 of 2003 


Omolo, Waki & Onyango Otieno, JJ.A 

June 11, 2010 

Reporter: Monica Achode 

Case History 

An appeal from the judgment of the High court of Kenya at Nairobi (Kuloba, J.) dated 25th July, 2000 in H.C.C.C. NO. 

1165 OF 1998 


W. Onyango Otieno 

Employment – termination of – appeal against a decision finding the termination of appellant’s 

employment lawful and on disciplinary grounds – claims over rebate tickets – respondent 

having argued that the rebate tickets were concessionary and only a privilege to staff – claims 

that they could be changed or withdrawn or augmented by the respondent as deemed fit – 

circumstances under which the appellate court would find differently from a superior court 

– whether the appellant had an litigable entitlement to the tickets 

Tort – libel – appeal against an award for damages paid to the appellant by the superior 

court – appellant having claimed that the respondent circulated a defamatory memo about 

him – respondent failing to refute the appellant’s claims – guidelines when testing matters of 

libel – principles guiding awards to damages – whether KQ was liable for defamation – whether 

the appellant was entitled to damages 

The appellant brought an appeal against a high court decision declaring his dismissal from 

the respondent’s employment lawful. The appellant had also sued the respondent for libel 

for sending out an allegedly defamatory memo to other staff members warning them not to associate with him. The 

appellant had been terminated on disciplinary grounds although the respondent chose to pay him his terminal benefits. 

The appellant also claimed rebated tickets which he argued, were an entitlement of the employee who, him, had worked 

in excess of ten years and had either left on retirement, termination or reassignment. It was his contention that this 

was his right and not a privilege and the respondent had to surrender the same to him. Neither party exhibited the 

terms of appointment and the provisions therein relating to termination of employment. 

Held: 

1. Although the Court on appeal would not lightly differ from the judge at first instance on a finding of fact it was 

undeniable that it had the power to examine and re-evaluate the evidence on a first appeal if it became necessary. It 

was a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the 

case, and who had had the advantage of seeing and hearing the witness. 

2. The letter of termination was clearly predicated on various incidents of indiscipline cited by the respondent 

therefore the appellant’s employment was lawfully terminated and was terminated on disciplinary grounds. The 

appellant therefore did not have litigable entitlement to the rebate tickets. 

3. In an action for libel, the trial court in assessing damages is entitled to look at the whole conduct of the defendant 

from the time libel was published down to the time the verdict is given. It may consider what his conduct has been 

before action, after action, and in court during the trial 

4. The guidelines when testing matters of libel were; the objective features of the libel itself, such as its gravity, its 

province, the circulation of the medium in which it is published, and any repetition, the subjective effect on the plaintiff’s 

feelings not only from the prominence itself but from the defendant’s conduct thereafter both up to and including 

the trial itself, matters tending to mitigate damages, such as the publication of an apology, matters tending to reduce 

damages and vindication of the plaintiff’s reputation past and future. 

5. Under those tests the damages awarded by the superior court were neither inordinately too high nor inordinately 

too low to warrant interference by the appellate court. There was no error in principle. 

Appeal and cross appeal dismissed. 


41




Conviction Based on Identification Evidence 

Jackson Kyalo Munge v Republic 

Court: Court of Appeal, at Nairobi 

Judge: P K Tunoi, E M Githinji & J G Nyamu JJ A. 

Case Number: Criminal Appeal No. 70 of 2007. 

Date: June 4, 2010. 

Reported by C W Lupao. 

Evidence-identification-accused seen and identified by witnesses in broad daylight-conviction based on such identificationwhether 

such conviction is safe. 

Criminal Law-confessions-accused confessing to the offence during inquiry-statement under inquiry admitted after trial 

within a trial-effect of. 

This was a second appeal by the appellant against conviction and sentence for the offence of robbery with violence. 

Counsel for the appellant argued that the first appellate court erred in affirming the decision of the trial magistrate 

notwithstanding that evidence of the eye-witnesses regarding visual identification was riddled with contradictions 

such that it was impossible to separate truth from untruth and that the appellant’s statement – under – inquiry which 

had been admitted in evidence ought not to have been admitted since the prosecution did not prove that the same 

was voluntarily made. 

Held: 

1. The statement-under-Inquiry, which was made by the appellant and admitted by the trial court was admitted after 

a trial-within-a trial, thus making it proper to admit the statement. 

2. After analyzing the evidence on identification the Court of Appeal was satisfied that the evidence of the witnesses 

who recognized the appellant driving away the stolen head of cattle could safely be relied upon as valid evidence of 

identification 

3. The conviction of the appellant was based on the evidence of recognition. The appellant was positively identified 

by two witnesses who knew him well having seen him at about 5.30 p.m. in broad daylight in possession of the stolen 

cattle. 


Statutory Power of Sale 

Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another 

Civil Appeal No. 164 of 2002 

Court of Appeal, at Nairobi 

May 28, 2010 

P. K Tunoi, S. O. E Bosire & J. W. Onyango Otieno, JJA 


Case History 

An appeal from the judgment of the High Court of Kenya at Nairobi (Shah, J) dated 13th August, 1995 in HCCC No 

5152 of 1990 



Charges - statutory power of sale-where the first respondent exercised the statutory power of 

sale and sold the appellant’s property to the second respondent by public auction-whether the 

first respondent was entitled to exercise the statutory power of sale-where the suit property 

was registered in the second respondent’s name-equity of redemption-whether the appellant’s 

equity of redemption was extinguished 

Land law - statutory notice - service of notice-statutory power of sale-provisions of the 

Registered Lands Act with regard to statutory power of sale-whether the statutory notices 

were valid-where first respondent’s statutory power of sale had accrued-Registered Land Act 

(cap 300) sections 65 (2), 74 (1) (a), 77 (4) 

Charge - statutory power of sale - sale by public auction-where the suit property was sold to 

the second respondent through public auction-where the purchase price was paid after four 

days instead of the required 25% at the fall of the hammer and the balance within sixty dayswhether 

the auctioneer diligently discharged his duties in exercising his discretion 

42 





Civil Practice and Procedure - damages - mesne profits-where the second respondent sought the appellant be condemned 

to pay mesne profits to him for the occupation of the suit property-where the suit property was registered under the second 

respondent’s name-whether the second was entitled to the rent for the period of occupation 

The appellant had applied for two loans consecutively from the Rural Urban Credit Finance. The first advance of Kshs. 

200,000/= was secured by a charge upon the appellant’s property (Number Nairobi/Block 74/91), while the second 

advance of Kshs. 60,000/= was secured through a chattels mortgage of the appellant’s motor vehicle. However in the 

course of events, Rural Urban Credit Finance was placed under receivership and confusion took charge of the events such 

that some members of staff and loan defaulters accessed the securities and several of them were stolen. Nonetheless, 

after complying with the legal requirements, the first respondent proceeded to sell the suit property to the second 

respondent through a public auction at a price of Kshs. 420,000/=, which amount was paid to the auctioneers four 

days after the auction and the second respondent had the property registered in his name. The appellant filed a suit 

against both the first and the second respondent for the recovery of the suit property which as a matter of fact had 

already exchanged hands. The appellant continued to live in the property despite demands by the second respondent 

that he vacates the property. 

During the hearing of the suit, the appellant claimed that the entire outstanding loan was fully repaid. He produced the 

title deed to which it was charged to secure the loan as evidence of repayment and that it was released to him through 

an authorization letter purportedly signed by him acknowledging the receipt of the title deed. The first respondent 

dismissed the allegations contending that not a single cent of the entire loan was repaid, and that the appellant had 

acquired the title deed through dubious means. The second respondent urged the court to dismiss the suit and sought 

orders against the appellant for eviction from the suit property and for the payment of mesne profits. After a full hearing 

the trial court dismissed the suit with costs, and further ordered the appellant to pay mesne profits to the second 

respondent by way of interest at 12% per annum on the sum of Kshs. 420,000/= until such time the appellant would 

vacate the suit property. The appellant was dissatisfied with the judgment and filed an appeal on several grounds that 

the trial court erred in holding that there was clear evidence of the amount of money advanced to the appellant and 

which had not been fully repaid; that the first respondent was not entitled to sell the suit property by public auction; 

that the suit property was lawfully and properly registered in the name of the second respondent and that the discretion 

exercised was unjudicial and based on wrong mathematical principle when dealing with the issue of mesne profits. 

Held: 

1. The authorization letter issued to the appellant to acknowledge receipt of the Land Certificate was not a proper 

legal document since the person who purported to have signed it, as a witness denied having appended his signature 

to it and therefore this would support the contention that the title deed did not get into the appellant’s hands through 

proper legal channels. 

2. The first respondent was entitled to take the necessary procedures to sell the securities since there was no evidence 

of the loans having been fully repaid by the appellant. Statutory notice was issued to the appellant of the intention to 

sell the securities. 

3. Regarding whether the statutory notice was valid or not, it was clear from the High Court’s record that the issues 

relating to the validity of the statutory notice was neither pleaded nor canvassed, and the courts would normally base 

their decisions only on the issues pleaded. 

4. Even if the Court of Appeal decided to entertain the issue of validity of the statutory notice and found that the 

notice was not valid, still nothing would turn on that because, by the time the matter went for hearing in the superior 

court, the suit property had long been registered in the name of the second respondent pursuant to a public auction 

properly carried out by the auctioneers as found by the trial court. As at the time the auction proceeded, there was no 

injunction order existing against the sale. That meant that as far as the suit land was concerned, the appellant’s equity 

of redemption had long been extinguished. 

5. Although the appellant’s equity of redemption was extinguished, all he could possibly pursue was a remedy in 

damages. However, although in the amended plaint there was a prayer for general damages, there was no attempt made 

to canvass that aspect as an alternative issue at the trial of the suit. 

6. Regarding whether the public auction was proper, the auctioneer in exercising his discretion acted on the interest 

of all the parties involved by accepting full payment of the purchase price in lateness of four days instead of insisting 

on 25% down payment at the fall of the hammer and the balance to be paid within sixty (60) days. 

7. The second respondent was entitled to compensation in respect of the period the appellant remained on the suit 

property after it was transferred to the second respondent. There was no evidence that the appellant paid him any 

rent and during the said period. 

Appeal dismissed with costs to both respondents. 


43




Constructive Provocation 

Josiah Afuna Angulu v Republic 

Criminal Appeal No 277 of 2006 

Court of Appeal, at Nakuru 

May 28, 2010 

PK Tunoi, PN Waki & A. R. M. Visram JJ A 


Case History 

An appeal from a conviction and sentence of the High Court of Kenya at Nakuru (Musinga, J) dated 4th April, 2006 in 

HCCRC No 44 of 2002 

Criminal Practice and Procedure – appeal – first and final appeal – duty as the first appellate 

court to reassess and re-evaluate such evidence and to reach its own independent conclusion – 

appeal against conviction and death sentence for the offence of murder – main ground that the 

case against the appellant was not proved beyond reasonable doubt – claims of contradictory 

evidence – whether the prosecution had proved its case beyond reasonable doubt – Penal 

Code(Cap 63) section 203 as read with section 204 

Criminal Practice and Procedure – constructive provocation – appellant having argued with 

one of the witnesses prior to the incident – lack of evidence as to whether the deceased had 

been involved in the argument – whether this could be construed as constructive provocation 

– whether such provocation could be availed to the appellant 

The appellant was convicted in the trial court for the offence of murder contrary to section 

203 as read with section 204 of the Penal Code and sentenced to death. It was against this 


A. Visram 

that he proffered his first and final appeal basing it on one main ground that the case against him had not been proved 

beyond reasonable doubt and he was therefore entitled to acquittal. During the trial it emerged that prior to the incident, 

the appellant had engaged in a quarrel with one of the witnesses. It was however not clearly established whether the 

deceased had been a part of this. Further, in the submission of evidence against the appellant various inconsistencies 

emerged which cast doubt on the prosecution’s evidence. 

It was therefore the appellant’s contention that the inconsistencies and contradictions evident in the testimonies 

were material enough to discount the entire evidence of those witnesses. The appellant further claimed, with the 

State Counsel conceding, that there may well have been a quarrel between the appellant and one of the witnesses 

which could have been construed as provocation. However the State Counsel stated that such provocation could not 

be availed to the appellant as there had been time for his passion to cool between 8 a.m when the quarrel occurred 

and 2 p.m when the deceased was shot. 

Held: 

1. The evidence may have been short on full consistency in every detail and some of it may not have been fully tested 

in cross-examination but there was no doubt, that the appellant was at the scene of the crime and not anywhere else 

as purported by him. 

2. The doubtful evidence as to whether the deceased was also involved in the quarrel and whether he said anything 

before his death, cast a dark shadow on the evidence establishing mens rea. In law the benefit of those doubts went 

to the appellant. 

3. It was the appellant who shot the arrow which resulted in the deceased’s death. It is an unlawful death and the 

appellant was to stand convicted of the lesser offence of manslaughter. 

Appeal allowed, conviction quashed, sentence of murder set aside and substituted for the lesser offence of 

manslaughter. 

44 





Superior Court’s jurisdiction to Reverse Trial Court’s Finding 

Kenneth Kiplangat Rono v Republic 

Criminal Appeal No. 66 of 2009 

Court of Appeal, at Nakuru 

May 28, 2010 

E O O’kubasu, P N Waki & D K S Aganyanya JJ A 


Case History 

Appeal from a judgment of the High Court of Kenya at Kericho (Angawa, J) dated 25th March, 2009 in HCCrA No 4 of 

2009 

Criminal Practice and Procedure - appeal - second appeal against conviction and sentence - 

the appellant was convicted on counts of defilement and child trafficking-where the appellant’s 

acquittal on the count of defilement was reversed to a conviction-whether the superior court 

had jurisdiction to reverse the trial court’s finding of not guilty to guilty-whether the evidence 

adduced was sufficient to secure conviction on both counts-whether the appeal had merit-Penal 

Code sections 260, 261; Sexual Offences Act sections 8 (3), 18 (1) (2); Criminal Procedure Code 

section 215; United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, 

Article 3 (a) 

The appellant was charged with two counts, first count of defilement contrary to section 8 

(3) of the Sexual Offences Act, and the second count of child trafficking contrary to section 

The Hon. Mr. Justice 18 (1) of the same Act. After full trial, the appellant was acquitted on the first count for lack 

E. O. O’Kubasu of evidence and convicted on the second count and consequently sentenced to 15 years 

imprisonment or a fine of Kshs. 2 million. He lodged an appeal against the conviction and sentence before the superior 

court. Although the State did not file a cross appeal against the acquittal of the appellant on the count of defilement, 

the superior court in its judgment appeared to be entertaining some aspect of appeal on that count. The superior court 

observed that indeed the complainant had been subjected to sexual intercourse by the appellant and thus reversed 

the acquittal to a conviction and proceeded to sentence the appellant to 20 years imprisonment. On the second count, 

the superior court set aside the optional fine of Kshs. 2 million and upheld the term of 15 years imprisonment, which 

sentences were to run concurrently. The appellant was dissatisfied with the decision of the superior court and filed a 

second appeal before the Court of Appeal on grounds that the superior court erred in law and fact in finding that the 

complainant was a minor without any form of evidence supporting that finding, that the superior court erred in finding 

that the complainant was defiled without any evidence supporting that finding, and further that the court erred in law 

in justifying the conviction of the appellant on the second count of child trafficking on the basis of the provisions of 

sections 260 and 261 of the Penal Code. 

Held: 

1. There was no cross appeal against the appellant’s acquittal on the count of defilement and the superior court had 

no jurisdiction to reverse the trial court’s finding of no guilty to that of guilty and sentencing the appellant to 20 years 

imprisonment on that count. 

2. The age of the complainant was not ascertained medically or through any documentation by the prosecution as 

required in law for such offences. Therefore the age of the complainant remained doubtful and the benefit of that doubt 

should have been in favour of the accused. 

3. On the count of child trafficking, the trial court did not focus on the ingredients of the offence which constitute the 

act, the means and the purpose, when convicting the appellant on the said count and therefore the conviction of the 

appellant on the count of child trafficking was unsafe. 

Appeal allowed, convictions quashed and sentences set aside. 


45




Procedure For Production of Exhibits 

Chris Kasamba Karani V Republic 

Criminal Appeal No. 26 Of 2008 

Tunoi, Bosire & Onyango Otieno, JJ A 

Court of Appeal at Nakuru 

May 28, 2010 

Reported by Njeri Githang’a 

Case History 

(Appeal from a judgment of the High Court of Kenya at Nakuru (Koome & Kimaru, JJ.) dated 24th January, 2008 in 

H.C.CR.A. NO. 199 OF 2004) 


P. K. Tunoi 

Criminal Practice and Procedure- second appeal-appeal against conviction and sentence - 

appellant convicted of robbery with violence-appeal restricted to matters of law- circumstances 

under which an appellate court would interfere with the decision of the superior court-Criminal 

Procedure Code (Cap 75) section 361 

Criminal Practice and Procedure-exhibits- procedure for production of exhibits- need for 

an exhibit to be identified before being produced as evidence-where an exhibit was irregularly 

produced-where the irregular production of the exhibit did not affect any ingredient of the 

offence- where the court could still have enter conviction without the weapon being produced 

as exhibit - whether the appeal could be allowed on that ground in circumstances 

Criminal Practice and Procedure-trial process-judgment and sentencing-trial court required 

to receive mitigating circumstances after finding the appellant guilty before proceeding to 

pronounce sentence- mitigating circumstances on record would be of importance when assessing 

an appropriate sentence on appeal 

Evidence-identification evidence-principles that the court had to take into when dealing with 

evidence of identification where the accused claimed it was mistaken identity- appellant caught red handed-whether 

there was proper identification 

The appellant had been charged with robbery with violence contrary to section 296 (2) of the Penal Code. After full 

trial, he was convicted and was sentenced to death. His appeal to the High Court was dismissed resulting to a second 

and final appeal to the Court of Appeal. 

It was argued that the High Court erred in law by sustaining the finding of the subordinate court despite the testimony 

of PW1 and PW2 being deficient of credibility. It was submitted that there was no proper identification of the appellant. 

It was further argued that the High Court erred in law by sustaining the finding of the subordinate court despite of the 

exhibits being produced contrary to the law. 

Held: 

1. By dint of section 361 of the Criminal Procedure Code, the court was enjoined to consider only matters of law. The 

court could not interfere with the decision of the superior court on facts unless it was demonstrated that; 

a. the trial court and the first appellate court considered matters they ought not to have considered or 

b. they failed to consider matters they should have considered or 

c. looking at the evidence as a whole, they were plainly wrong in their decision, in which case, such omission or 

commission would be treated as matters of law. 

Whether PW1 and PW2 were credible witnesses were matters of fact and the court would be very reluctant to interfere 

with the concurrent findings of the two courts on such matters. 

2. The guidelines as regards the principles that the court had to look into when dealing with evidence of identification 

where the accused claimed it was mistaken, including that of identification by recognition were; 

a. Where the only evidence against a defendant was evidence of identification, or recognition, a trial court was 

enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were 

favourable and free from possibility of error before it could safely make it the basis of a conviction. 

b. Recognition could be more reliable than identification of a stranger but mistakes in recognition of close 

relatives and friends were sometimes made. 

3. The appellant had been caught red handed and his defence which was rejected after due consideration by the two 

court’s below was indeed ousted by clear and credible evidence adduced by the prosecution. 

4. Exhibit 1 had been irregularly produced. Following the correct procedure in law, PW2 should have identified 

that exhibit and it should have been marked for identification before PW3 produced it as exhibit. However nothing 

turned on that irregularity because the production of that exhibit did not affect any ingredient of the offence. The 

46 





offence as charged could have been proved even if the dangerous weapon was not produced as exhibit. So long as the 

court believed, on evidence before it, that such a weapon existed at the time of the offence, the court could still enter 

conviction without the weapon being produced as exhibit. 

5. (Obiter) The trial court, after finding the appellant guilty and convicting him proceeded to pronounce sentence 

upon him in the same judgment without receiving any mitigating circumstances from the appellant and the appellant’s 

antecedents before sentencing him which was not proper. Even where the sentence was mandatory, the trial court 

needed to record mitigating circumstances before pronouncing the sentence. That was important because, on appeal, 

the appellate court could be minded to find the appellant guilty of a lesser charge which did not attract a mandatory 

sentence. In such a situation, mitigating circumstances on record would be of importance when assessing an appropriate 

sentence. Further, in situations such as when the President considered commuting the sentence, the record was of 

importance. 

Appeal dismissed 

Criminal Practice and Procedure: Reduction of Charge 

James Karoki Wangeci v Republic 

Criminal Appeal 146 of 2008 

Court of Appeal, at Nyeri 

May 14, 2010 

R. S.C. Omolo, P. N. Waki & D. K. S. Aganyanya, JJ.A 

Reported by Esther Nyaiyaki Onchana 

Case History 

Appeal from a judgment of the High Court of Kenya at Nyeri (Kasango, J.) dated 28th July, 2008 in H.C.Cr.A. 160 of 

2007 


D. K. S. Aganyanya 

Criminal Practice and Procedure – appeal – second appeal - matters confined to a second 

appeal - appellant having been charged with the attempted defilement of a minor – where the 

first appeal to the superior court of records was dismissed – claims that the appellant’s defence 

was not considered – whether the evidence adduced was sufficient to sustain the conviction 

Criminal Practice and Procedure – charge – reduction of charge - charge sheet having been 

changed from reading “defilement of a minor” to reading “attempted defilement of a minor” 

– whether this would prejudice the appellant – claims that the language of the court was not 

stated when the charge was change and there was no interpretation – compliance with section 

214 of the Criminal Procedure Code (Cap 75) – court record showing that the appellant pleaded 

not guilty when the alternate charge was read to him – effect of - Criminal Procedure Code 

section 214 

Constitutional Law - fundamental rights - rights of an accused person - right to a fair trial - 

right to be brought to court within a reasonable time-appellant being charged with murder 

- appellant having been arrested on February 7, 2007 and was taken to Court on February 9, 2007 

The appellant came to court seeking an appeal against the conviction and sentence on a charge of attempted defilement. 

Amongst the grounds of appeal adduced by the appellant were that the charge sheet had been substituted without 

due regard to section 214 of the Criminal Procedure Code, that the proceedings in the court had not been interpreted 

in a language he could understand, that he had been held beyond the prescribed period of 24 hours before being 

arraigned in court and that his defence had not been considered hence the case against him had not been proved 

beyond a reasonable doubt. 

Held: 

1. The new charges were read over to the appellant in the Kikuyu language which he understood and he pleaded 

not guilty whereupon the trial commenced on the new charges. That was a procedure fully sanctioned under and in 

compliance of section 214 of the Criminal Procedure Code. There was no substance in that ground of appeal and no 

prejudice caused to the appellant by reduction of the charge facing him to a lesser one. 

2. The trial court was careful to record that the proceedings would be conducted in “English/Kiswahili/Kikuyu” and 

they would be interpreted in those languages. The trial court was also careful to record the language used by each of 

the prosecution witnesses and the appellant, and the court clerk who carried out the interpretation. Therefore this 

ground also failed. 


47




3. The appellant was arrested on 7th February 2007 at 3 p.m. The 24 hours period would have expired at 4 p.m. on 

8th February 2007. One needed to consider how practicable it would have been to take the appellant to court at 4 p.m. 

on 8th February 2007. In all probability the courts sessions would by then have ended. The appellant was taken as 

soon as was reasonably practicable. The appellant’s constitutional rights were not therefore violated. 


Mode of Service of an Election Petition 

Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others 


Tunoi, Githinji & Waki JJ.A 

Civil Appeal 183 of 2008 

May 7, 2010 


Case History 

An appeal from the ruling and order of the Election Court, High Court of Kenya at Kisii (Ibrahim, J) dated 11th July, 

2008 in Kisii Election Petition No. 1 of 2008) 


P. K. Tunoi 

Election law – service – mode of service of an election petition – appeal – appeal against 

ruling by the High Court dismissing election petition on the ground that the petitioner had 

invoked the alternative mode of service under Section 20(1) (a) (iv) of the National Assembly 

and Presidential Elections Act without exercising first due diligence to serve the respondent 

personally – alternative mode of service having been effected within six days of filing the election 

petition - affidavit of service – High Court struck out the affidavit of service for having not been 

filed on time - whether an affidavit of service in an election must be filed in a prescribed manner 

– affidavit of service was filed after leave was granted by the court to file further affidavits to 

examine whether the 1st respondent had been served in accordance with the Act - whether the 

affidavit of service was erroneously struck out - Section 20 (1) (c) (iv) of the National Assembly 

and Presidential Elections Act 

Electoral law – service – mode service of an election petition - affidavit of service - whether the 

appellant’s affidavit of service dismissed by the High Court would have discharged the onus of 

showing on a balance of probability that the appellant exercised due diligence in serving the 

election petition – whether onus is on the petitioner to demonstrate that he exercised due diligence before invoking service 

through alternative mode of service – 1st respondent argued that the petitioner had ample time exercise due diligence 

before resorting to alternative means – whether the petitioner discharged the onus of showing diligence in serving the 

petition – due diligence – meaning of due diligence 

The appellant was a registered voter in Kitutu Masaba constituency. He challenged the declaration of the 1st respondent 

as the winner of that election through an election petition filed at the High Court. Service of the election petition on 

the 1st respondent was published in the Kenya Gazette and in a local daily newspaper. The High Court struck the 

petitioner’s affidavit of service annexed to his replying affidavit, for failure by the process server to cause the same to 

be filed in court. 

The affidavit of service having been struck out left the affidavit of the petitioner’s advocate which merely referred 

to the alternative mode of service and the effects of post election violence. Personal service was thus ruled out and 

consideration by the court was concentrated on whether due diligence to serve the 1st respondent as required under 

section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act had been satisfied. The court held that 

the petitioner could not embark on the process of service under section 20 (1) (c) (iv) until due diligence had been 

done to serve the 1st respondent personally. The petitioner appealed against that ruling. 

Held: 

1. The process server’s affidavit of service held together the appellant’s petition and by striking out and exclusion of 

its contents brought the petition tumbling down. It was the very document which would have answered the question 

as to whether under section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act, the appellant 

exercised due diligence to effect personal service before resorting to alternative means of service. 

2. The affidavit of service was part of the record as it had been filed pursuant to leave granted by the court for purposes 

of assisting the court to examine whether the 1st respondent had been served in accordance to the National Assembly 

and Presidential Elections Act. The superior court fell in error and failed to examine the very evidence that would have 

assisted it in establishing the truth of the disputed facts. 

48 





3. The factual depositions of the process server, which were not challenged in cross-examination established on a 

balance of probability that the appellant discharged the onus of showing due diligence in serving the petition. 

Appeal allowed. 

Advocates 

1. Mr. Nowrojee for the Appellant 

2. Mr. A.B Shah for the 1st Respondent 

Interpretation of Electoral Laws and Regulations 

James Omingo Magara v Manson Onyongo Nyamweya & 2 others 

Court of Appeal at Kisumu 

Omolo, Tunoi & Githinji JJ.A 


April 30, 2010 


Case History 

Being an appeal from the Judgment and Decree of the High Court of Kenya at Kisii (Musinga, J) delivered on the 17th 

December, 2009 and the Certificate of Determination of Election Petition signed and dated 17th December 2009 in 

H.C. Election Petition No. 3 of 2008 


R.S.C. Omolo 

Election law – interpretation of statute - interpretation of electoral laws and regulations – the 

interpretation of electoral laws is aimed at conducting free and fair elections – circumstances 

when an election can be declared void - test to be applied by the court in determining validity 

of an election - meaning of free and fair elections – meaning of transparent elections – duty 

of the electoral body to promote free and fair election - Section 17A of the National Assembly 

and Presidential Elections Act - section 42A (c) of the Constitution 

Election law – election petition – appeal against High Court judgment – the High Court 

having nullified the election of the appellant as the Member of Parliament for the South 

Mugirango constituency on grounds that the election was not transparent, free and fair 

– the appellant having garnered the highest number of votes during the scrutiny and 

recount of votes – failure by the court to find the appellant guilty of an electoral offence - 

scrutiny and recount of the votes disclosed numerous irregularities among them unsigned 

unauthenticated Forms 16A, variation between Forms 16A and 17A, missing ballot boxes, 

broken ballot seals - the significance of Forms 16A – the effect of the failure by the presiding 

officer to sign or stamp Forms 16A without reasonable cause - Regulations 35A (5), 39, 40 

(1) of the Presidential and Parliamentary Regulations 

Election law – conduct of elections – non-compliance with the law – the scope of section 28 of the National Assembly and 

Presidential Elections Act - section 28 of the National Assembly and Presidential Elections Act providing that irregularities 

in the conduct of an election will not vitiate the result unless the irregularities were so serious that the election was not 

in accordance with principles laid in the law or the irregularities affected the result- appellant asking the court to invoke 

section 28 on grounds that the acts alleged against the electoral body that conducted the elections did not affect the 

overall results of the elections – whether the anomalies found in Forms 16A and17A were so pervasive as to affect the 

entire election - whether these anomalies could be cured by section 28 of the National Assembly and Presidential Elections 

Act – whether election was conducted in accordance with principles laid down by the electoral law 

The appellant, James Omingo Magara, was declared the winner of the parliamentary election held on 27th December, 

2007 after garnering the highest number of votes. The elections were conducted by the defunct Electoral Commission 

of Kenya (ECK) which in this suit was taken over by the 3rd respondent, Interim Independent Electoral Commission 

of Kenya (IIEC). 

The 1st respondent, Manson Onyongo Nyamweya, one of the candidates who vied for the parliamentary elections, 

filed a petition in the Election Court in Kisii, where he alleging that appellant was guilty of various electoral offences 

and that the returning officer and ECK had breached the electoral law by committing numerous electoral irregularities. 

The High Court rejected the allegations relating electoral malpractices made against the appellant. However the court 

made a finding that, the presiding officers and returning officer committed many irregularities among them noncompliance 

with the conditions relating to Forms 16A and 17A provided for under Regulations 35A (5), 39 and 40 (1) 

of the Presidential and Parliamentary Regulations. The court nullified the elections because ECK and its agents had 

not conducted the election in a transparent free and fair manner. 


49




The appellant’s principle ground of appeal to the Court of Appeal was that he had the highest number of votes following 

scrutiny and recount of votes conducted by the election court, this he argued, reflected the will of the people. The 

appellant further submitted that the existence of a few cases of non-compliance with electoral regulations did not affect 

the overall outcome of the electoral process and therefore the Electoral Court ought to have applied the provisions of 

section 28 of the National Assembly and Presidential Elections Act and dismissed the petition. The said section provides 

that an election should not be declared to be void by reason of a non-compliance with any written law relating to that 

election, if it appears that the election was conducted in accordance with the principles laid down in that written law, 

or that the non-compliance did not affect the result of the election The Court of Appeal considered the scope section 

28 of the National Assembly and Presidential Elections Act against the requirement to hold elections in a transparent, 

free and fair manner. 

Held: 

1. Under Regulation 35A (4) of the National Assembly and Presidential Elections Regulations it was evident that the 

Form 16A was an important document in the electoral process. In particular Form 16A dealt with a specific polling 

station, the number of registered voters in that station, the number of the candidates, the votes secured by each 

candidate in that station. Where a candidate or his agent refused to sign, the reason for the refusal should be recorded. 

It is from Forms 16A, from all the polling stations in a constituency that the returning officer in charge of the whole 

constituency is be able to tally all the votes polled in the constituency and having tallied the votes from each polling 

station, enter them on Form 17A and declare the winner of the election in that constituency. The importance of Form 17 

A was also evident from the reading of Regulation 40 of the National Assembly and Presidential Elections Regulations. 

A transparent, free and fair electoral process must adhere to this process and such adherence to the process can only 

be shown by the presiding officer himself signing the form and then inviting the candidates or their agents to sign. 

2. Forms 16A that are not signed by presiding officers raise serious legal questions that may not be resolved by a 

forensic audit of an election. 

3. The scrutiny and recount of the votes by the High Court disclosed numerous irregularities, among them unsigned 

and, therefore, unauthenticated Forms 16A, three missing ballot boxes, broken ballot seals and many others set out in 

the High Court judgment. These irregularities could not have been cured under section 28 of the National Assembly 

and Presidential Elections Act. 

4. Section 28 of the National Assembly and Presidential Elections Act could not be used to cover a situation where 

even the source of the votes in the ballot boxes could be conclusively determined. Again to use that section to cover 

the disappearance of ballot boxes, irrespective of the number of the ballot papers in the missing boxes, would simply 

amount to encouraging vandalism in the electoral process. 

5. [per Githinji J.A. dissenting] Mere failure by a presiding officer to sign Form 16A was a procedural anomaly which 

could not invalidate the results announced in a polling station. The election was conducted in accordance with principles 

laid down by the electoral law and that the anomalies found in some Form 16A and 17A were not so pervasive as to affect 

the entire election. Those were post-election procedural anomalies which were cured by both scrutiny and counting 

and by Section 28 of the Act. Therefore the Election Court had misconstrued Section 28 of the National Assembly and 

Presidential Election Act. 

Appeal dismissed. Appellant ordered to pay costs to the 1st respondent. 

Advocates 

1. Mr. Katwa Kigen for the Appellant 

2. Mr. Onyinkwa for the 3rd respondent 

Presumption of Marriage 

Mary Wanjiru Githatu v Esther Wanjiru Kiarie 

Court of Appeal at Eldoret 

Bosire, Tunoi & Nyamu JJ.A 


April 23, 2010 


Case History 

Being an appeal from the judgment and decree (Ibrahim J) given on 13th May 2008 in the matter of the estate of the 

late Ephantus Githatu Waithaka (deceased) in ELD HC P & A OF 2002 

Probate and administration - letters of administration - appeal - interpretation of statute – interpretation of section 

3(5) of the Law of Succession Act - appeal from High Court judgment granting the respondent letters of administration 

– appellant arguing that a customary law marriage could not presumed where all the customary requirements had not 

50 





been fulfilled – whether a marriage between the respondent and the deceased could be presumed under section 3(5) of 

the Law of Succession Act Marriage – presumption of marriage - rationale and genesis of the concept of presumption of 

marriage - circumstances in which a presumption of marriage is deemed to arise – respondent having cohabited with the 

deceased for over fifteen years and had three children – evidence supporting that the deceased supported the respondent 

financially – lack of evidence that dowry was paid under the Kikuyu customs of marriage – whether a marriage could be 

presumed under such circumstances 

The High Court decreed that Esther Wanjiru Githatu (respondent/objector) and Mary Wanjiru Githatu (appellant/ 

petitioner) be joint administrators of the estate of Ephantus Githatu Waithaka (the deceased). The High Court judgment 

had rendered that although there was no formal marriage between the deceased and the respondent, by virtue of their 

long cohabitation of fifteen years, recognition and acceptance by family members and friends, coupled with the birth 

of three children, the court declared the existence of a marriage by presumption and/or cohabitation between them. 


S. E. O. Bosire 

The appellant’s main ground of appeal was whether the respondent was a widow of the 

deceased within the meaning of section 3 (5) of the Law of Succession Act (Cap 160). The said 

section provides that the notwithstanding any other written law, a woman married under 

a system of law that permits polygamy is, where her husband has contracted a subsequent 

or previous monogamous marriage to another women, she will nevertheless be considered 

a wife for purposes of the Act. 

On appeal, the appellant’s advocate argued that the trial court in holding that petitioner was 

the widow of the deceased, based its decision on presumption of marriage. In his view the 

court erred in law and fact in failing to find that a common law presumption of marriage 

could not bring the petitioner within the provisions of section 3 (5) of the Law of Succession 

Act particularly having held that there was no valid Kikuyu customary law marriage between 

the petitioner and the deceased. 

On the other hand the respondent’s advocate relied on long cohabitation, the children the 

petitioner had with the deceased and other evidence to urge the court to presume a marriage 

between the deceased and the petitioner. 

Held: 

1. Whether or not a marriage could be presumed was a question of fact. It was not dependent on any system of law 

except where by reason of a written law it was excluded. The objector was married by the deceased under Kikuyu 

Customary Law. That being so and both sides conceded as much, the deceased had the capacity to enter into another 

marriage relationship provided the marriage was not a prohibited one. 

2. The marriage between the petitioner and the deceased was potentially customary in nature. The deceased according 

to Kikuyu customary law was obliged to pay dowry for the petitioner. As at the date of his death he had not done so. 

It however appeared to the court that if other essentials were satisfied but dowry was not paid, it may be paid even 

after one of the parties to the relationship was dead. Contrary to the objector’s submission it was in the circumstances 

as existed between the deceased and the petitioner in which a presumption of marriage may be raised. 

3. Long cohabitation as husband and wife may give rise to presumption of marriage in favour of the party asserting 

it, in the instant case, the petitioner (Hortensiah Wanjiku Yawe v The public Trustee). In view of section 3 (5) of the 

Law of Succession Act and the decision in Yawe vs. Public Trustee it was quite clear that the petitioner could in the 

circumstances of this case, be regarded otherwise than as the widow of the deceased. 

4. [per Nyamu J.A dissenting] The superior court decision was patently contradictory because it made a finding of 

the non-existence of a marriage under Kikuyu customary law between the petitioner and the deceased and at the same 

time declared a marriage by presumption, a concept which was a stranger in Kikuyu customary law. 

5. [per Nyamu J.A dissenting] A customary marriage is constituted by virtue of section 3(2) of the Judicature Act 

by the presence of the specified customary ingredients. It is a massacre of such a custom for anyone to suggest that a 

presumption of marriage per se can constitute a marriage under any system of law whether customary or common 

law unless it was accompanied by the other essential ingredients pertaining to a particular system of marriage. A 

presumption based on cohabitation remained a presumption but it could not constitute a customary law marriage 

without the essential ingredients. The presumption could not itself form the super structure of a Kikuyu customary 

law marriage or any other, it could only be part of the issue whether factually there was a marriage. 

6. [per Nyamu J.A dissenting] The petitioner was not married under a system of law contemplated under section 3 

(5) of the Law of Succession Act, therefore there was no marriage in terms of that provision. 


Advocates 

1. Mr. Gicheru for the Appellant 

2. Mr. Machio for the Respondent 


51




Use of evidence in main charge to establish a minor and cognate charge. 

M.B.O v Republic 

Court of Appeal at Nakuru 

Omolo, Waki & Visram 

Criminal Case 342 of 2008 

April 16, 2010 


Case History 

(Appeal from a judgment of the High Court of Kenya at Nakuru (M. Koome, J) dated 19th June, 2008 in H.C.CR.A. NO. 

284 OF 2006) 

Criminal practice and procedure – appeal – appellant charged for the offence of defilement and an alternative charge 

of indecent assault of a female – conviction on alternative charge -appeal against conviction on the alternative count 

and sentence for 10 years imprisonment – appeal on grounds that the main charge having been struck out an alternative 

charge could not be sustained-whether evidence on record could sustain the offence of defilement - whether the conviction 

and sentencing was proper – section 144 and 145 (1) of the Penal Code 

Sentencing - sexual offence - indecent assault on a minor-sentence of 10 years imprisonment-legality of sentence -section 

144 (1) Penal Code 

The appellant was convicted for three counts of the offence of defilement and sentenced 

to imprisonment twenty years on each count. The cumulative sentences were to run 

consecutively, so that the term of imprisonment would total to 60 years. The appellant argued 

in his appeal to the superior court that the three main counts were incurably defective for 

failure to describe the acts of carnal knowledge as ‘unlawful’. The superior court quashed 

and set aside the sentences. The court however found that the evidence on record supported 

the alternative counts of indecent assault and sentenced the appellant to serve 10 years 

imprisonment for each count. Each sentence was to run concurrently from the date of the 

appellant’s first conviction. 

In a second and final appeal the appellant’s advocate argued that the quashing of the main 

charge of defilement, on the technical ground that it was defective, the evidence adduced in 

support of that charge dissipated with it, and it could not be referred to as a foundation for 

a finding on the alternative counts. He also submitted that the private parts referred to in 

the alternative counts were ‘buttocks’ which did not constitute private parts. 


P. N. Waki 

Held: 

1. If the main charge is not proved, either because it is defective or because the evidence on record does not support 

any element of the offence, the evidence does not evaporate into thin air! It may be examined to see if it supports a 

minor and cognate offence and if it does prove such offence beyond doubt, a conviction will follow. 

2. In the instant case, the charge of indecent assault was a minor and cognate offence that could be considered if the main 

charge of defilement was unsustainable. Section 179 of the Criminal Procedure Code allowed for such procedure. 

3. The Sexual Offences Act defined an indecent act as any intentional act which causes, inter alia, any contact between 

the genital organs of a person or her breasts and buttocks with that of another person. Despite this new development in 

the law, the buttocks of a woman were private enough to attract the charge of indecent assault if they were intentionally 

touched or exposed. 

4. By dint of Section 361(1) (a) of the Criminal Procedure Code the severity of sentence was a matter of fact which 

was not within the jurisdiction of the Court of Appeal. However under section 361 (1) the court considered the legality 

of the sentence imposed by the superior court and found that it omitted to include hard labour. 

Appeal dismissed and sentence imposed by the superior court enhanced to include hard labour. 

Advocates 

1. Mr. Olaly Cheche for the Appellant 

2. Mr Njogu for the State 

52 





Manufacturer’s Duty of Care to Consumers 

Kenya Breweries Ltd v Godfrey Odoyo 


Civil Appeal 127 of 2007 

Bosire, Onyango Otieno & Nyamu JJ.A 

April 16, 2010 

By Esther Nyaiyaki Onchana 

Case History 

Appeal from the judgment of the High Court of Kenya at Nairobi (Visram, J.) dated 8th August, 2005 in H.C.C.A. NO. 

480 OF 2002 



Tort – negligence – damages for injuries suffered due to consumption of contaminated beer – 

appeal against liability and damages awarded in the consumer – whether the two lower courts 

were wrong in holding beer manufacturer liable – the rule in Donoghue v Stevenson – whether 

the principles enunciated in the rule were proved – whether duty of care by the appellant to 

the respondent had been established – whether negligence by the appellant if any resulted in 

injury to the respondent 

Tort – negligence – liability – where the bottle that was analyzed was not the one consumed 

by the respondent – appellant alleging that there was no nexus between the contents of the 

bottle that was examined and the injury suffered by the respondent – whether report by Kenya 

Bureau of Standards was improperly obtained – effect of - 

The respondent sought judgement against the appellant in the Chief Magistrate’s Court for 

general damages and special damages. He sought this on the grounds that the respondent, 

being a beer manufacturer, which manufactured among other brands of beer, the beer brand 

of Tusker Malt Larger, (300 ml) on June 23, 2000 put on sale three Tusker Malt Lager bottles which the respondent 

bought and partly consumed. 

He alleged that the beers did not comply with specifications on foreign matter and clarity and were therefore unfit for 

human consumption causing him to suffer severe injuries and special loss. After full hearing, the trial court found the 

appellant liable and awarded to the respondent general damages in the sum of Ksh.70,000 for pain and suffering and 

a further Ksh.21,990 for special damages in respect of hospital fees paid for treatment. 

On appeal, the superior court upheld the trial court’s decision on liability and on 

special damages but set aside the award of for general damages and substituted it with 

an award for Kshs. 20,000. The appellant filed a second and last appeal at the Court 

of Appeal premised on the grounds that the superior court had erred in upholding 

the trial court’s finding on liability, in particular that the appellant’s injuries, if any, 

were caused by beer manufactured by the appellant. In addition the appellant faulted 

the superior court’s finding that the appellant was negligent and that such negligence 

resulted in injury to the respondent and that the court failed to follow the principles 

laid down in decided cases relating to negligence. 

The appellant’s advocate submitted that because the bottle which was submitted for 

analysis was not the same bottle consumed by the respondent, there was no evidence 

it connected to the respondent. He contended that the principles enunciated in the 

well known case of Donoghue v. Stevenson, where injury arose from drinking the 

content of a manufactured bottle that contained a snail were, first that there had to 

be a duty of care to the respondent by the appellant, secondly, breach of that duty 

had to be established, and thirdly that it had to be proved that respondent suffered as a result of the breach of that 

duty. It was further submitted, that a report by Kenya Bureau of Standards was improperly obtained because the law 

required such a test to be carried out only on the request of the relevant the Minister. He argues that in the instant case 

the test was requested done at behest of an advocate. 


53




The respondent’s advocate argued that the appellant had not denied the existence of the duty of care. He contended 

that the results of the lab analysis produced in evidence to prove injury were sufficient as they had not challenged by 

the appellant at the trial despite being represented by counsel. The certificate produced the Kenya Bureau of Standards 

stated that the contents of the bottle were unfit for human consumption and that even the shock experienced by the 

respondent amounted to injury. The appellant’s advocate maintained that since the respondent bought three bottles 

in the same batch, and in the process of taking the second bottle he noted impurities in it and in the third bottle, the 

duty extended to all the bottles manufactured in the same batch by the appellant. 

Held: 

1. The unopened bottle, which was examined by Kenya Bureau of Standards, contained the same impurities as the 

opened bottle which was partly consumed by the respondent. The appellant’s witness had acknowledged to the court 

that if the bottles were of the same batch, it was reasonable to assume that if the opened bottle had impurities, the 

unopened one too had the same impurities as was witnessed by the respondent. This in effect meant that what the 

respondent consumed and what was in the unopened bottle which was examined were the same and only in different 

containers. In that scenario, there was a clear nexus between the bottle manufactured by the appellant and respondent. 

There was therefore no proper reason to interfere with the concurrent finding of the two courts below on that aspect 

which was a finding on fact based on cogent reasoning. 

2. The appellant had special knowledge of its system of production and could have very easily produced evidence 

to show that the unopened bottle, although it could be seen to have what looked like similar impurities in the half 

consumed bottle, was nonetheless, a separate bottle not produced together with the offending bottle. 

3. The results by the Kenya Bureau of Standards were not vitiated for failure to obtain proper authority before 

conducting the examination. The appellant who had the report at the hearing of the case did challenge the legality of 

the report by the Bureau of Standards in the trial court. Even if it had been proved that it was improperly obtained, 

that alone would have probably only affected its value and not its admissibility. 

4. The best course would have been to proceed under that Act as the beer was within the food bracket. But the report 

that was made by Kenya Bureau of Standards, a body empowered by law to ensure proper standards of products released 

into the market, which would include beers and several other products, could be ignored. It categorically stated that 

the beer did not meet the standard required meaning it was not fit for human consumption. The appellant did not do 

anything to demonstrate that the beer was wholesome and fit for human consumption unlike the results of the Kenya 

Bureau of Standards indicated. The accepted evidence was that the appellant consumed beer which had impurities and 

which was unfit for human consumption. It did not matter where the test was carried out and it did not matter under 

which law the examination was done so long as the report has dealt with the essential aspects of the matter and the 

same test was admitted at the trial by a competent court of law. 

5. In order to hold a defendant liable to the plaintiff the plaintiff has to prove that the defendant owes him a duty of 

care; that that duty has been breached and that as a result of that breach, the plaintiff has suffered injury (Donoghue 

v Stevenson). In the instant case the respondent consumed one and a half bottles from the batch and fell sick. There 

were documents produced in court to prove the same and those documents were not challenged on their contents. 

Whether the suffering was minor resulting from shock of having drank beer that had impurities or real resulting into 

vomiting and diarrhoea as the respondent said, it all boiled down to the fact that those were injuries. 

6. [Nyamu J.A. dissenting] The unused beer bottle was never consumed and the half consumed beer was never analysed 

and therefore the linkage of its contents to the injury was by an inference not by actual factual proof of negligence. 

7. [Nyamu J.A. dissenting] The neighbourhood principle, and the duty of care owed, has been substantially influenced 

by the scientific dimension and medical advancement in the last 80 years. In some cases depending on the facts, the 

principle has been restricted in its application or expanded by the ever changing frontiers of science. Liability at this 

time and age must take this into account. Indeed the manufacturers’ liability to the ultimate consumer should be 

determined on the basis of the facts and not a matter of routine. The application of the Donoghue v Stevenson ratio to 

the special facts on this case was patently erroneous. 


Advocates 

1. Mr. Lutta for the Appellant 

2. Mr. Ochieng’ Ogutu for the Respondent 

54 





Trafficking in Narcotic Drugs 

Kingsley Chukwu v Republic 


J. W. Onyango Otieno, D. K. S. Aganyanya & Alnashir Visram 


April 16, 2010 


Case History 

An appeal from a judgment of the High Court of Kenya at Nairobi (Ojwang, J) dated 16th July, 2007 in H. C. CR. A. No. 

599 of 2004 

Sentence – trafficking in narcotic drugs - appellant convicted and sentenced to imprisonment for 15 years for the offence 

of trafficking in narcotic drugs by the Chief Magistrate’s court – superior court subsequently setting aside the trial court’s 

sentence and sentencing the appellant to pay a fine of Kshs. 28 million or in default a twelve year jail term and a prison 

term of three and half years - whether the sentences imposed by the courts below were in consonance with section 4(a) of 

the Narcotic Drugs and Psychotropic Substances (Control) Act - when an appellate court can interfere with the sentence 

imposed by a lower court 

The appellant was convicted and sentenced to fifteen years imprisonment for the offence of trafficking in narcotic drugs 

contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act 1994. In his first appeal to 

the superior court the appellant alleged that his conviction by the trial court was based on unreliable circumstantial 

evidence. At the trial court he had denied being the owner of the pieces of luggage containing narcotic drugs. The 

superior court upheld his conviction but ordered the appellant to pay a fine of Kshs. 28,800,000 and in default to serve 

a term of twelve years in jail. In addition the appellant was sentenced to a prison term of three and half years. 

The Court of Appeal considered whether the sentences imposed by the trial court and the superior court were in 

accordance with section 4 of the Narcotic Drugs and Psychotropic Substances (Control) Act 1994. 

Held: 

1. Under section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act 1994 a person convicted for 

an offence under that section shall be fined one million shillings or three times the market value of the narcotic drug 

or psychotropic substance whichever is greater, and, in addition, to imprisonment for life. 

2. Both the lower courts were wrong in the sentence meted out; the trial court for imposing a jail-term of fifteen years, 

without a fine and the superior court for imposing first a jail term of twelve years in default of the fine, and in addition 

imposing a jail term of three and half years. There was no merit in the appeal against the appellant’s conviction but 

the court set aside the sentence imposed the superior court according to section 361 (1) (b) of the Criminal Procedure 

Code. 

Appellant ordered to pay a fine of Kshs. 28,8000, 000 and in addition sentenced to imprisonment for life. 

Advocates 

1. Ms Ouya for the state 

Execution of a Judgment and Decree by the Court 

Hunker Trading Company Ltd v Elf Oil Kenya Ltd 


Githinji, Visram & Nyamu JJ.A 

Civil Application 6 of 2010 

March 24, 2010 

Reporte by Esther Nyaiyaki Onchana 

Case History 

(An application for stay of execution orders of judgment and decree of the High Court of Kenya at Nairobi Milimani 

Commercial Courts (Lesiit, J) dated 17th July, 2009 in H.C.C.C.NO.1785 of 20010) 


55




Civil Practice and Procedure – stay of execution – application for stay of execution of a judgment and decree by the High 

Court – application grounded under sections 3A & 3B of the Appellate Jurisdiction Act – applicant having disobeyed an 

earlier order by the High Court to deposit security in an interest earning account – overriding objective of the Appellate 

Jurisdiction Act- whether the applicant could rely on the overriding objective having failed to comply with the High Court’s 

ruling – notice of appeal relating to the main judgment and not the High Court’s ruling - whether applicant could rely 

on the overriding objective provisions having disobeyed the High Court’s ruling – whether non-compliance with the High 

Court ruling had a bearing on the application before the appellate court – Rule 5 (2) (b) Court of Appeal Rules and sections 

3A & 3B of the Appellate Jurisdiction Act 

The applicant, Messrs Hunker Trading Company Limited, had applied to the High Court for 

a stay of execution of the judgment and decree in favour of the respondent, Elf Oil Kenya 

Limited. The High Court granted the stay but instructed the applicant to deposit security in 

interest earning account to be opened in the joint names of the applicant’s and respondent’s 

advocates. However, the order subsequently lapsed without compliance by the applicant. 

At a later stage, the applicant under sections 3A and 3B of the Appellate Jurisdiction Act and 

Rule 5 (2) (b) of the Court of Appeal Rules made an application to the Court of Appeal seeking 

for a stay of execution of the judgment and decree of the High Court. The notice of appeal 

before the appellate court was directed against the main judgment delivered by the High 

Court but it was not against the court’s ruling which had ordered the applicant to deposit 

security. The Court of Appeal considered whether non-compliance with that High Court 

ruling had a bearing on the provisions of sections 3A and 3B of the Appellate Jurisdiction Act. 

The appellate court chose the call the overriding objection in civil litigation provided under 


E. M. Githinji 

section 1A of the Civil Procedure Act and sections 3A and 3B of the Appellate Jurisdiction Act ‘the Oxygen Principle 

(O2 principle)’ 

Held: 

1. The applicant having admitted to having failed to comply with order of stay by the High Court order, the Court 

of Appeal found the applicant to be in breach of section 1A (3) of the Civil Procedure Act and section 3A (3) of the 

Appellate Jurisdiction Act. 

2. The fact that the order had since lapsed had in no way eroded the relevance of the disobedience of the order to the 

operation of the overriding objective. 

3. The thrust of applicant’s application to the appellate court under section 3A was substantially to seek similar orders 

to those he was granted in the superior court and disobeyed. Under section 1A (3) the applicant had a duty to obey all 

court processes and orders. Going to the Court of Appeal having abused the process in the superior court was a clear 

violation of the overriding objective of civil litigation. 

4. As the applicant did not appeal against the order of stay by the High Court for reasons of being onerous or unjust 

but instead just ignored it, the application fell outside the provisions of Rule 5(2) (b) and section 3B and was therefore 

incompetent. 


Service in an Election Petition 

Dickson Daniel Karaba v John Ngata Kariuki & 2 others 


Tunoi, Waki & Aganyanya JJ A 

March 19, 2010 


Case History 

An appeal from the ruling and order of the High Court of Kenya at Nyeri (Kasango, J) dated 28th May, 2008 in H.C. 

Election Petition No. 1 of 2008 

Election law – service - service of an election petition – appeal against dismissal of an election petition by the High Court 

on the ground that service had not been conducted within the requisite period after publication of results – production 

of conflicting evidence before the High Court through conflicting affidavits regarding the service of the election petition 

- appellant’s process server swearing in an affidavit that the election petition had been served within the given period of 

time –1st respondent also swearing in an affidavit that the service of election of election petition as alleged by the process 

server did not take place – parties whether failure by the 1st respondent to cross examine the process server amounted to 

56 





admission to having been served the election petition - whether the appeal could be allowed on that ground- section 20 

(1) (a)National Assembly and Presidential Elections Act. 

The appellant, Dickson Daniel Karaba was one of the candidates in Kirinyaga Constituency 

during the Parliamentary elections held in December 2007 in which the 1st respondent, 

John Ngata Kariuki was declared the winner of that election by the returning officer the 2nd 

respondent James Kariuki Gitau. 

The appellant filed an election petition in which he averred that there were errors in counting 

of votes, omission of results from certain poll stations and erroneous tallying and re-tallying. 

He sought for orders for scrutiny and tallying of all votes cast in that constituency. By way 

of application, the 1st respondent sought to strike out the petition on the ground that he 

had not been served personally with the petition within twenty eight days after the date 

of publication of the results as required by section 20 (1) (a) of the National Assembly and 

Presidential Elections Act. 


P. N. Waki 

The High court was faced with 

conflicting affidavits regarding the service of the election 

petition. The court process server swore in his affidavit that he 

had served the 1st respondent as required by law. The process 

server’s affidavit was supported by an affidavit sworn by a car 

hire businessman, who knew the process server and the 1st 

respondent. On the other hand the 1st respondent swore an 

affidavit to the effect that he had not been served. The motion 

was set down for hearing, but in view of the conflicting factual 

information, counsel on both sides applied to cross-examine the 

deponents on the respective affidavits on record. However, at the 

resumed hearing only the 1st respondent was cross examined 

on his affidavit but his counsel declined to examine the court 

process server. The petition was consequently struck out on the 

ground that the petitioner had not discharged the burden of 

proof laid upon him in respect of service of the petition. Being 

aggrieved by that decision the appellant filed an appeal where 

he submitted that the failure by the 1st respondent to challenge 

the affidavits relating to service of process amounted to an admission of the facts. He further averred that if there were 

any doubts regarding the depositions before the court, the deponents ought to have been cross examined. 

Counsel for the 1st respondent asserted that there was no obligation to cross-examine the process server especially 

where there was other evidence to rebut the process server’s averments. 

Held: 

1. In view of the factual statements and the circumstances of this case it was desirable that the truth between the two 

versions of the affidavits be explored through cross examination. Only the 1st respondent was cross-examined and in 

the process he made material admissions which lent credence to the assertions of the process server. 

2. In view of the evidence presented to the trial court there was no doubt that the process server was at the location 

of the offices of the 1st respondent at the time he swore he was, the only issue being whether or not he met the 1st 

respondent there and served him. The affidavit evidence of the process server, which was not challenged in crossexamination, 

that he made his way to the 1st respondent’s offices and served him in the manner he stated he did was 

believable. 


Advocates 

1. Mr. Wamae for the Appellant 

2. Mr. Mari for the 1st Respondent 

3. Mr. Arusei for the 2nd Respondent 


57



FROM THE COURTS — HIGH COURT 

Election petition: fundamental electoral irregularities and malpractices. 

Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR 

Election Petition 11 of 2008 

April 30, 2010 

KH Rawal J. 

High Court at Nairobi (Nairobi Law Courts) 


Election law-election petition- parliamentary election- petition seeking to nullify and declare 

void the election of the first respondent as Member of Parliament for Makadara Constituency 

-irregularities in elections – petitioner citing several irregularities in the conduct of elections 

- whether the irregularities were sufficient to warrant nullification of the election- National 


Election law-electoral offences and election malpractices – election posters- election placards 

and posters not disclosing the name and address of the publisher - whether the fact that a 

party to an election petition did not specify on the face of his election poster the name and 

the address of the printer or publisher could result in the nullification of an election- whether 

the petitioner had proved that allegation to the required standard of proof- Election Offences 

Act (Cap 66) section 11 (1) and 11(1) (b) 

Election law – electoral malpractice and offence – code of conduct – allegation of breach of 

duty and code of conduct by the Electoral Commission and the Returning Officer-failure to 

serve impartially and independently in performance of their duties – where it is alleged that 

The Hon. Lady Justice KH 

Rawal 

the Commission had been pressured by first respondent’s political party to declare the results which it believed to be false 

– whether the anomalies raised a question regarding the authenticity and veracity of the election results. 

Election law – electoral malpractice – ballot boxes -ballot boxes received at tallying centre with seals broken – boxes 

carried by unknown persons - petitioner’s agents denied opportunity to accompany the ballot boxes from the polling station 

to the tallying station - the petitioner arrested when he raised the grievance– whether the parliamentary elections were 

conducted in free, fair and transparent manner. 

Election law- electoral documents- statutory documents and forms - manner in which results are to be recorded - presiding 

officer required to record the total number of votes cast in favor of each candidate and to sign and seal the declaration 

set out in the Form 16A certifying the results –whether Form 16A which is not signed by Presiding Officer could constitute 

valid results which could be accepted for tallying by a Returning Officer - absence of Form 16A for most agents -Form 17A 

not complied with –certificate of winning being issued to the successful candidate before Form 17A - agents not allowed 

to verify the forms – whether the anomalies in the process of election results were so fundamental as to affect the results 

of the election. 

Election law- election results -discrepancies between the presidential and civic elections - whether the difference was 

evidence of serious electoral malpractice that was apparent during the conduct of the elections- alteration of results- Form 

16As- specific results of candidates either cancelled or altered without the presiding officer countersigning the cancellation 

or alteration- no trace of the physical records of the election results - whether the cancellations and alterations in the 

Form 16As produced in the court raised question regarding the veracity and authenticity of the said results - whether the 

first respondent had been validly elected as the member of parliament 

Evidence-admissibility of evidence-new evidence after cross examination-discretion of the court to refuse or allow the 

evidence-whether it was against the principles of justice to allow or admit the evidence 

The petitioner, a candidate for the Parliamentary Election for Makadara constituency filed an election petition contesting 

the election of the first respondent as the Member of Parliament for the Constituency. The third respondent was the 

Electoral Commission of Kenya (ECK) while the second respondent was the ECK’s Returning Officer. The ECK was 

subsequently disbanded by a constitutional amendment that established the Interim Independent Electoral Commission 

(IIEC) as its successor and the IIEC succeeded to the suit in the place of the ECK. 

The petition was brought on the ground that the parliamentary election involved serious irregularities and malpractices 

committed by the respondents and several election offences on account of which the results announced for the 

parliamentary election could not be said to have been valid. The petitioner raised several complaints among them; that 

the said election was not conducted in accordance with the provisions of the National Assembly and the Presidential 

Elections Act or the Regulations made thereunder. According to the petitioner there had been no free, fair and transparent 

Parliamentary Election and the election had to be nullified as prayed in the Petition. |It was alleged that there had been 

serious anomalies in the process of election results, especially with the electoral documents which were fundamental 

and would affect the results of the election. 

58




During the hearing, 175 ballot boxes for Makadara Constituency were deposited with the Registrar of the High Court 

and were ordered to be opened to scrutinize the compliance of Rule 19 of the National Assembly and Presidential 

Elections Rules .The record on the court file showed that a number of irregularities became apparent following the 

scrutiny of the ballot boxes. 

In opposing the petition, it was contended that no new ground from the process of cross-examination gave the petitioner 

a legitimate ground for seeking the nullification of the election and the petitioner could not be allowed to introduce 

new grounds in the course of adducing evidence in support of his petition. The court was also asked to disregard the 

issue regarding validity of the Forms 16A. 

Held: 

1. There was no proof of an election offence under section 11 of the Election Offences Act. The burden of proof of 

election offences was higher because they were in the nature of quasi – criminal acts. If the offence was not proved to 

the satisfaction of the court the same could not be held to be proved against the respondent. 

2. Copies of Form 17A were not given to the first Respondent. They were produced by the first and second respondents 

the first time in court. It was thus inconceivable that the petitioner could have given any particulars as regards Form 

17A. 

3. Considering the element of surprise, neither the first and second Respondents could complain that they were 

surprised by the evidence led on Form 17A (even if it was in cross-examination) as they were all the time aware of its 

details and have readily shown them to the court in support of their cases that the tallying process and declaration 

of the election results were conducted fairly and justly. The evidence received during the cross-examination of those 

witnesses, if allowed to be irrelevant and inadmissible, it would have been against the principles of justice and Rule 

of Law. 

4. The court had unlimited and wide discretion to admit or refuse to admit even admissible evidence. No principle 

of law prevented the court to look into the evidence led by the opposite party which would support the pleaded case 

of the other party. 

5. Although it was the Returning Officer who declared the result and issued the certificate of result, the same became 

authentic when it was declared and published by the Electoral Commission in the Kenya Gazette as provided by law. 

6. The Difference of about 10,000 votes cast between Presidential and Parliamentary Election was not usual and 

would lead to the conclusion that all was not well. A voter could not be forced to vote for all the streams of election, 

but as per Regulation 30 (2) of the Election Regulations, the ballot papers for each stream of elections had to be issued 

and had to be put in the ballot box by the voter. 

7. Nothing was commented on the absence of signature and seal of the Electoral Commissioner by the Presiding 

Officer on the Form 16A. Even though Regulation 35A (5) and (6) of the Presidential and Parliamentary Elections 

Regulations stipulated that non-signature could not affect the election, the omission to do so was of a serious nature 

which could cast doubt on the validity of the result declared. 

8. Regulation 40 of the Presidential and Parliamentary Elections Regulations did not have provisions similar to 

Regulation 35 (A) (5) and (6). Regulation 40 (1) (g) (i) provided that the Returning Officer had to sign and date the 

form and give to any candidate or his agent present a copy of Form 17A. There was evidence that Form 17A was not 

dated by the second respondent. 

9. The Constitution gave the court the jurisdiction to hear election petitions and the court was expected by all the 

laws, to determine that the process of election was free, fair and transparent. It had to give effect to the tenets of the 

Constitution, Rule of Law, Electoral Laws and the Regulations made thereunder. If the court found that the electoral 

process was very badly flawed and that the process so undertaken could affect the results of the election as declared, 

the court had to declare the election null and void. 

10. Evidence had been produced by the respondents which brought out the breaches and violation of the electoral 

laws and regulations. Moreover, the absence of Form 16As and other irregularities became apparent when the ballot 

boxes were opened to check compliance of Rule 19 of the Election Rules. 

11. Free and fair elections had a clear meaning in terms of democratic audit. Elections provided an important ingredient 

of popular election of parliament. For this to be achieved, the underlying notes concerning the conduct of the election 

had to provide a high standard of fairness as between parties, candidates and voters. 

12. The court, apart from doing justice between the parties, had also to consider the aspect of public interest in the 

electoral process which was to give the voters a duly elected member representing them in the parliament. 

13. The Election Petition was a special jurisdiction donated to the court. The electoral officials appointed by the 

Electoral Commission were expected to adhere to the provisions of electoral laws substantively. Forms 16A and forms 

17A were the most important documents in the electoral process and they had to be shown to have been duly filled 

in and completed. 

13. Even if a Returning Officer could get assistance from his deputies, he could not abdicate his duty and legal obligation 

to scrutinize the validity of Form 17A which was the document to be used to declare the winning candidate. 


59




15. Form 16As had to confirm to Regulation 35A at each polling station as they were to be scrutinized and relied 

upon by the Returning Officer to fill in Form 17A. Regulation 35 of the Election Regulation provided for the procedure 

to be followed by the Presiding Officer at the polling station culminating in the sealing of ballot boxes. These were 

very serious and onerous obligations stipulated by the electoral laws and could not be lightly shrugged off under the 

guise of human errors. 

16. There were arithmetical errors in the results of all the candidates in Form 17A. The results of two polling stations 

were not included and figures in respect of final tally of the results of the petitioner and the first respondent were 

altered without authenticating the same or by counter-signing. The figures of votes (cast, rejected and valid ones) were 

also not entered in respect of some polling stations, signature of candidates or agents were not shown. The Form 17A 

presented by the first Respondent was neither signed nor dated. 

17. The certificate of results issued by the second respondent declaring the first respondent as a winner was issued 

before the tallying process and form 17A were completed. 

18. All the undisputable facts lead to the conclusion that the second respondent did not perform her duties fairly and 

impartially. When a candidate was removed from the tallying centre at a very critical stage of the election process she 

failed to put it on record. She did not undertake her duties fairly and impartially. 

19. The process of the election, starting from the ferrying of ballot boxes to the whole process of receiving and 

tallying the ballot boxes in the tallying centre and declaration of the first respondent as a successful candidate did not 

demonstrate that there was a fair and free election. 

20. There was enough evidence to find that there were serious anomalies in the process of election results, which were 

fundamental and in the nature which would affect the results of the election. There was also evidence of non-compliance 

with important and mandatory provisions of the electoral law from the electoral officials and the court in all fairness 

had no option but to come to the conclusion that the parliamentary election was not fair, free and transparent. 

Petition allowed. 

Advocates : 

Mr. Omollo for the Petitioner 

Mr. Kilukumi for the 1st respondent 

Mr. lubullellah for the 2nd & 3rd respondent 

Criminal Practice: Defence of Retraction by Admission 

Josephat Njue Solomon v Republic 


High Court at Embu 

W. Karanja. J 

April 22,2010 

Reported by Andrew Halonyere 

Criminal practice and procedure – charge – framing of a charge for the offence of defilement –appeal against conviction 

and sentence of life imprisonment on a charge of defilement – grounds; that the magistrates trial court omitted to record 

the language used during trial, words in the particulars of the charge i.e “unlawful carnal knowledge” were not envisaged 

in the Sexual Offences Act – court’s record showing that the appellant understood and participated in the proceedings 

- law on use of language in the course of criminal proceedings – whether the phrase “causing penetration with a child” 

and “unlawful carnal knowledge” described the same act. 

Criminal law – defilement – defilement of a girl under the age of 18 years – appellant raising defence of retraction by 

admission, by stating that “the girl was agreeable to what I did to her”- circumstances under which a retraction would 

arise – whether a minor can have consensual sex – whether the evidence adduced was sufficient to sustain a conviction. 

Evidence – documentary evidence – P 3 form – court’s discretion to call the maker of a document to adduce evidence - 

Sexual Offences Act (2006) section 8 (1),(2) - Penal Code (Cap 63) – Evidence Act (Cap80) section 77. 

The appellant was charged before the Runyenjes Senior Resident Magistrate’s Court with the offence of defilement 

of a girl contrary to section 8 (1) as read with sub-section 2 of the Sexual Offences Act (2006). He was convicted and 

sentenced to life imprisonment on his own plea of guilty. Being aggrieved with the conviction and sentence he filed an 

appeal against it in the High Court. 

The appellant submitted that the words used in the particulars of the charge i.e “unlawful carnal knowledge”, were not 

envisaged in the Sexual Offences Act, arguing that they were words in the repealed sections of the Penal Code (Cap 63) 

and therefore rendered the charge defective. It was also submitted that the plea was unequivocal because the appellant 

admitted to the facts but added the statement, “The girl was agreeable to what I did to her.” However, counsel for the 

state called this an attempt at justification and not a retraction of the admission. The appellant further submitted that 

60




the magistrate’s court erred by admitting the P3 form without calling the maker and without giving the appellant a 

chance to object or admit to it. Finally it was the appellant’s submission that the language used during the trial and 

whether or not it was understood by the appellant was not on record. 

Counsel for the state in objecting to the appeal, submitted that there was no defect in the charge and that the use of 

the words “unlawful carnal knowledge” did not make it defective. 

Held: 

1. The law on use of language was very clear. The language used at the trial did not have to be the accused person’s 

mother tongue, nor the language of his choice. All it needed to be was a language clearly understood by the accused. 

2. “Causing penetration with a child” and “carnal knowledge” described the same act. It was just a question of 

semantics. Penetration was actually a detail of the act but both terms simply meant having sexual intercourse. The fact 

that “carnal knowledge” appeared in the Penal Code (Cap 63) and not in the Sexual Offences Act of 2006, did not outlaw 

its use in the particulars of the offence. Therefore the use of the said words was not prejudicial to the appellant at all. 

3. A retraction would only have arisen if an accused person raised a defence admitting the facts e.g if an accused’s 

answer to a charge of murder was, “It is true, I admit the fact but I did not intend to kill him,” that would have completely 

negated a plea in that case. However, in a case of defilement it mattered not whether the child gave its consent or whether 

she was agreeable to the sexual intercourse. This was a statutory offence and the issue of consent or agreeability would 

not arise. Saying that the girl was agreeable did not therefore negate the plea. It did not make it equivocal. 

4. Section 77 of the Evidence Act (Cap 80) provided, that in criminal proceedings any document that purported to 

be a report under the hand of a Government analyst, medical practitioner or any ballistics expert, document examiner 

or geologist upon any person, matter or thing submitted to him for examination or analysis could be used in evidence. 

The court could presume that the signature to any such document was genuine and that the person signing it held the 

office and qualifications which he professed to hold at the time when he signed it. When any report was so used the 

court could, if it thought fit, summon the maker and examine him as to the subject matter thereof. Therefore the P3 

form was admissible and since it was not a hearing where viva voce evidence was being adduced, there could not have 

been any cross-examination or need to call the maker of the document. 

Appeal dismissed 

The Hon. Justice Fred A. 

Ochieng 

Rights of an Accused Person to be Brought to Court within 14 Days of Arrest 

Republic v Desmond Mukhaya Mulusa [2010] eKLR 


April 20, 2010 

Judge: Fred A. Ochieng J. 



Constitutional Law- fundamental rights and freedoms- rights of an accused person- right 

to be brought to court within 14 days after arrestapplicant accused of murder-detention of 

applicant in police custody for 6 months - onus on the police to demonstrate that the accused 

had been taken to court as soon as was reasonably practicable- delay caused by delay in 

conducting the post-mortem examination of the victim’s body as the family could not be traced 

to identify the body- victim’s family inability to raise the mortuary fees and the post-mortem 

fees causing further delay in having the post mortem report released-whether the prosecution 

had explained the delay satisfactorily-Constitution sections 70 (a), 72 (3) (b) and 77 

Constitutional law-fundamental rights and freedoms-rights of an accused person- accused 

person presumed innocent until proven guilty-prosecution submitting that if there was any 

breach of the constitutional rights of the accused the court had to apply the provisions of 

the Constitution in a wholesome manner- rights of the accused to be weighed as against the 

rights of the victim- whether the court could use section 71 of the Constitution as a counter-weight to the provisions of 

section 72(3)- obligation of the court to give effect to the section 70 of the Constitution- restrictions and limitations of 

constitutional rights –rights subject to respect for the rights and freedoms of others and for public interest – where public 

interest required the court to determine whether or not the accused was guilty-whether the violation of constitutional 

rights of an accused resulted to an automatic acquittal- Constitution sections 70, 71 and 72 (3). 

Constitutional law-fundamental rights and freedoms-remedy for breach of- right of the applicant to sue for compensation 

under section 72(6) of the Constitution- the provision an integral part of the Constitution-duty of the court to invoke that 

section where section 72(3) has been breached-whether failure to bring the applicant to court within the prescribed time 

only entitled him to compensation for breach of his rights- Constitution section 72 (6). 


61




Criminal Practice and Procedure-affidavit-amendment-whether an affidavit may be amended- claim that the affidavit 

sworn by the Investigating Officer explaining the delay was referring to a different case-whether there was need for the 

respondent to seek to either amend the affidavit or alternatively, to seek leave to file a supplementary affidavit -where the 

only lawful option would be to file a supplementary affidavit-whether the affidavit was defective 

The applicant, who had been charged with murder, made a constitutional application to the court with a claim that his 

constitutional rights under sections 70 (a) and 72 (3) (b) and 77 (1) of the Constitution had been violated. In particular, 

the accused asserted that his detention beyond the period of 14 days from the date of his arrest, constituted a violation 

of his constitutional rights. The applicant had been held in police custody for six months before being arraigned in 

court. 

The Investigating Officer swore an affidavit in which he deponed that the delay in bringing the accused to court was 

attributable to a delay in conducting the post-mortem examination of the victim’s body as the family of the deceased 

could not be traced in good time to identify the body. The Investigating Officer also disclosed that the City Mortuary 

could not release to the police the results of the post mortem examination early enough, because of the unpaid mortuary 

charges. 

The accused submitted that the affidavit did not correlate to the case, because in his view, it was sworn to explain 

issues which arose in Criminal Case No. 87 of 2007, (whereas the case at hand was Criminal Case No. 86 of 2007). He 

further argued that the inability of the victim’s family to raise the fee payable for the post- mortem examination was 

not a justifiable explanation. The accused re-emphasized that where the constitutional rights of an accused person 

have been violated, he was entitled to an acquittal. 

The respondent on the other hand submitted that if there was any breach of the constitutional rights of the accused, 

the court had to apply the provisions of the Constitution in a wholesome manner. It was contended that the rights of 

the accused must be weighed as against the rights of the victim of the offence. 

Held: 

1. A perusal of the court file revealed that the affidavit of the Investigating Officer was sworn on the file before the 

court. There was therefore no need for the respondent to seek to either amend the affidavit or alternatively, to seek 

leave to file a supplementary affidavit. 

2. An affidavit could not be amended as it is made up of evidence, which the deponent of such affidavit tenders on 

oath. If after the affidavit is sworn and tendered to court or to any other body the deponent realizes that there are 

errors in it, the only lawful option available to him for setting out the correct factual position is through a supplementary 

affidavit. 

3. Pursuant to section 72 (3) of the Constitution, the police were obliged to explain to the court their reason for taking 

the accused to court so long after the expiry of the 14 days which the law allowed them. The onus was on the police 

to demonstrate that they took the applicant to court as soon as was reasonably practicable 

4. The body of the victim could not be identified until the members of the deceased’s family were traced and without 

the post mortem results, the cause of death could not be established. As long as the cause of death was not ascertained 

by the pathologist or by any other duly qualified medical practitioner, it would have been premature to prefer charges 

of murder. 

5. The scope of the reasons or explanations for not bringing an accused person to court within the prescribed time 

which may be acceptable to the court could not be exclusively delineated. So long as the explanation proffered was 

reasonable and acceptable, no problem would arise. Each case had to be considered on the basis of its peculiar facts 

and circumstances. In deciding whether there had been a breach of section 72 (3) of the Constitution, the Court had 

to act on evidence. 

6. Section 71 of the Constitution protected the right to life. However even though the deceased had been killed, the 

court could not use section 71 of the Constitution as a counter-weight to section 72(3) as an accused person is deemed 

to be innocent until and unless his guilt is proved. Nonetheless, the court had an obligation to give effect to section 

70 of the Constitution which provided that the rights and freedoms were subject to the rights of others and for public 

interest. Although the accused was entitled to his fundamental rights and freedoms, the enjoyment of the same was 

subject to the respect for the rights and freedoms of others and to public interest. 

7. Public interest required the court to carry out its mandate of dispensing justice without fear or favour. Whilst an 

accused person is presumed innocent until and unless he is proved guilty, public interest required the court to determine 

whether or not the accused was guilty. That could only be done if the prosecution was given the opportunity to lead 

evidence, during a trial. But then again, the courts had to also safeguard the fundamental rights of an accused person. 

It was for that reason that the court remained ever vigilant in the course of carrying out its mandate 

62




8. The failure to bring the appellant to court within the prescribed time only entitled the appellant to compensation 

for breach of his rights as was provided for under section 72 (6) of the Constitution. That section was an integral part 

of the Constitution which expressly provided for a remedy in situations where section 72 (3) was said to have been 

violated. 

9. It was in the public interest to have the trial proceed to its logical conclusion. 


Election petition: Threshold of irregularities warranting nullification of election 

William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR 

April 16, 2010 

L. Kimaru J. 

High Court at Nairobi (Milimani Commercial Courts) 


Election law-election petition- parliamentary election- election petition seeking to nullify and 

declare void the election of the first respondent as Member of Parliament for Juja Constituency 

-irregularities in elections – petitioner citing several irregularities in the conduct of elections 

- whether the irregularities were sufficient to warrant nullification of the election- National 


Election law-election petitions-jurisdiction-High court’s jurisdiction in determination of election 

petitions-factors to be considered by the court- the Constitution, the National Assembly and the 

Presidential Elections Act, the Election Rules and Regulations -general principles recognized by 

the law as constituting the proper conduct of a valid election- nature of election petitionsan 

election a signification of the exercise of the democratic rights of the people to have a person of 

their choice represent them in the National Assembly- whether the court had jurisdiction to hear 

the matter-Constitution of Kenya Section 44- National Assembly and the Presidential Elections 

Act(Cap 7) Section 19 

The Hon. Justice 

L. Kimaru 

Election law -elections-fair and free elections -right of a people to freely elect their representative in a credible electoral 

process - test as to what constitutes free and fair elections - internationally acceptable standard -whether the complaints 

made by the petitioner were such that, apart from establishing the particular electoral malpractice or irregularity, they 

impacted on the rights of the voters of the constituency to have a person of their choice represent them in the National 

Assembly - whether the election as conducted could be said to have been free and fair-Article 25 of the International 

Convention on Civil and Political Rights (1966)- Article 21 of the Universal Declaration of Human Rights 

Election law-election petition-standard of proof in election petitions- burden of proof on the petitioner-standard of proof 

slightly higher than the one adopted in civil cases but not as high as in criminal cases- standard of proof ordinarily applied 

by the court in civil cases where an allegation of fraud has been made -need for the court to be satisfied that the allegation 

of fraud had been properly established-whether the required standard of proof had been established 

Election law-electoral offences and election malpractices –election posters- printing of election posters that do not disclose 

the name and address of the publisher - whether the fact that a party to an election petition did not specify on the face of his 

election poster the name and the address of the printer or publisher could result in the nullification of an election –code of 

conduct-conduct of the Returning Officer-Returning Officer alleged to have aided the first respondent gain unfair electoral 

advantage against the petitioner- bribery-the culprit a civic candidate in the said elections -whether the petitioner had 

proved those allegations to the required standard of proof-Election Offences Act section 11 (1) and 11(1) (b) 

Election law- electoral officials- Electoral Commission of Kenya (ECK) officials presiding over the nomination of both 

the parliamentary and civic candidates of a political party-whether by virtue of ECK participation in the parliamentary 

nomination, an impression was created that it was partial to that political party during the general elections- the 

Presidential and Parliamentary Election Regulations 

Election law- electoral documents-election result- manner in which results are to be recorded- Form 16A and Form 17A- 

Form 16As lacking the signatures of the presiding officers- persons other than presiding officers filling Forms 16A- need 

for all the presiding officers to sign and stamp the Form 16As for the same to be considered valid- statutory comments in 

the Forms 16A- failure by the presiding officers to give reasons for the failure or refusal by the candidates or their agents 

to sign the Form 16A- completion of Form 17A- whether the third respondent accepted invalid results which he tallied and 

included in the final results as contained in Form 17A- Presidential and Parliamentary Elections Regulations (Cap 7 Sub 

Leg) Regulation 35A(1) (b), 35A(5)(b) 35A(7) and (8) 40(1) 

Election law-ballot boxes-scrutiny of ballot boxes- integrity of nearly a third of ballot boxes in question- some ballot boxes 

tampered with in the period between the time the defunct Electoral Commission of Kenya (ECK) was disbanded and the 

constitution of the second respondent-whether the ballot boxes could be scrutinized and ballot papers recounted 


63




Election results-alteration of results- Forms 16A- results of specific candidates altered without the presiding officer 

countersigning the cancellation or alteration- need for electoral documents containing results to be verified by other 

parties, including the members of the public -whether the cancellations and alterations in the Form 16As produced in the 

court raised question regarding the veracity and authenticity of the said results- discrepancies between the presidential 

and civic elections -elections conducted from one voter’s roll- difference of over 5,000 votes between the parliamentary 

vote and the presidential and the civic vote - whether the difference was evidence of serious electoral malpractice that 

was apparent during the conduct of the elections 

The petitioner had filed an election petition contesting the election of the first respondent as the Member of Parliament 

for Juja Constituency on the ground that his election involved serious irregularities and malpractices committed by the 

second and third respondents. The second respondent was the Electoral Commission of Kenya (ECK) while the third 

respondent was the ECK’s Returning Officer. The ECK was subsequently disbanded by a Constitutional amendment 

that established the Interim Independent Electoral Commission (IIEC) as its successor and the IIEC had succeeded to 

the suit in the place of the ECK. 

It was the petitioner’s case that the evidence disclosed a litany of serious electoral malpractices by the ECK on account 

of which the results announced for the parliamentary election could not be said to have been valid. The petitioner 

raised several complaints among them; that the said election was not conducted in accordance with the provisions of 

the National Assembly and Presidential Elections Act or the Regulations and principles made thereunder. 

It was alleged that the election had not been conducted in accordance with the principles of common law and the 

principles of natural justice and all that seriously affected the election to the detriment of the petitioner. The petitioner 

complained that the tallying and the totaling of the results was inaccurate and that the ballot boxes for the votes cast 

in the elections were opened and ballot papers counted, totaled and tallied in the absence of the petitioner and his 

agents. 

It was the Petitioner’s case that the declaration of the results of each polling station as contained in the Forms 16A 

remitted to ECK were not verified and witnessed by the petitioner and or his agents nor were any reasons given for 

the third respondent’s failure to procure the petitioner’s or his agents verification and endorsement on the declared 

results. The petitioner was of the view that the declared results were therefore false, fictitious and unlawful. 

Held; 

1. Section 44 of the Constitution gave the High Court the jurisdiction to hear and determine the question whether a 

person had been validly elected as a Member of the National Assembly. In determining the validity of an election, the 

court would take into consideration the provisions of the Constitution, the National Assembly and the Presidential 

Elections Act, the Election Rules and Regulations made thereunder, and the general principles recognized by the law 

as constituting the proper conduct of a valid election. 

2. In determining election petitions, the High Court was required to bear in mind that election petitions were not 

ordinary suits where a party was enforcing a right that accrued to him as a person. An election was a signification 

of the exercise of the democratic rights of the people to have a person of their choice represent them in the National 

Assembly. 

3. The test as to what constituted free and fair elections would of necessity be the internationally acceptable standard 

of what constitutes such free and fair elections. The Court had to consider whether the complaints made by the 

petitioner were such that, apart from establishing the particular electoral malpractice, or irregularity, impacted on 

the rights of the voters. 

4. Ordinarily, the Court would not interfere with the democratic choice of the voters unless it was established to the 

required standard of proof that there were irregularities and electoral malpractices that rendered the said elections null 

and void and therefore subject to nullification. It would not be sufficient for the petitioner to establish that irregularities 

or electoral malpractices did occur: he had to establish that the said electoral malpractices were of such a magnitude 

that it substantially and materially affected the outcome of the electoral process in regard to the elections. 

5. The standard of proof in election petitions was higher than that which was applied in ordinary civil cases. The 

burden of establishing that any election offence was committed to justify the nullification of the election was on the 

petitioner. 

6. Out of the 231 ballot boxes, 66 of them appeared to have been tampered with. In the circumstances, the court could 

not order for a scrutiny and recount of the ballots. 

7. Under the Universal Declaration of Human Rights, international treaties, the Constitution of Kenya and the National 

Assembly and Presidential Elections Act, the right of a people to freely elect their representative in a credible, free and 

fair electoral process was a human right and elections were to be held to internationally acceptable standards. 

64




8. Election posters not disclosing the name and address of the printers was an election offence under the Election 

Offences Act punishable by imprisonment for up to four years. Where any person was aggrieved, such a person was 

required to lodge a criminal complaint with the police. The fact that a party to an election petition did not specify on 

the face of his election poster the name and the address of the printer or publisher could not result in the nullification 

of an election. 

9. Although the petitioner proved that the first respondent’s supporters distributed leaflets that were defamatory 

of his character, such distribution was localized in scope that it could not be said to have materially and substantially 

affected the conduct and the results of the parliamentary election. 

10. The petitioner failed to establish the claim that the third respondent was influenced by the first respondent in 

the employment of the presiding officers and polling clerks during the said parliamentary elections. 

11. The election offence of bribery had been established. However, the culprit was a civic candidate in the said elections 

and court could not therefore reach a conclusion with certainty that the said culprit was bribing voters on his own 

behalf or on behalf of the first respondent as he was in the same party as the first respondent. 

12. The election regulations were meant to govern the conduct of the election from the time the voters were registered 

to the time the results of the elections were announced. It provided an elaborate procedure by which presiding officers 

were required to conduct an election and later announce results. The election regulations were meant to entrench and 

promote the principles of free, transparent and fair elections. 

13. The participation by the Electoral Commission of Kenya (ECK) in the nominations of a political party that was 

to later contest the general elections was against the principles of independence and impartiality and against the 

ECK’s own Code of Conduct which prohibited its officials from associating with a political party. An electoral body was 

supposed to conduct elections impartially and even a seemingly innocent association with any of the contesting parties, 

particularly the party in power, would raise questions as to its impartiality and neutrality. 

14. A Form 16A which was not signed by a Presiding Officer could not constitute valid results capable of being accepted 

for tallying by a Returning Officer. Further, a Form 16A which was not authenticated by the stamp of the electoral body 

could not be said to contain valid results. The Returning Officer had accepted invalid results and included them in the 

final results expressed in Form 17A. 

15. Forms 16A in respect of some of the polling stations had been filled by persons who were not in ECK’s official list 

of designated Presiding Officers. The Returning Officer had wrongly delegated the responsibility. 

16. The presiding officers did not provide statutory comments as required by the law and further failed to allow the 

agents of the candidates to authenticate the results by signing on the Form 16As. 

17. The Election Regulations required a Presiding Officer to request each candidate or their agents to sign against 

the results on Form 16A and where a candidate or agent was absent or failed to sign, the Presiding Officer was to state 

the absence or the reasons for the lack of the signature. The participation of candidates or agents in an election was 

not incidental or cosmetic to the election process but an important component of it. Failure to state the reasons was a 

breach of a mandatory legal requirement and it rendered invalid the results contained in the Forms. 

18. The third respondent failed to verify or confirm that the results filled in the Form 17A were the true and correct 

results of all the polling stations in the constituency. The Form 17A was not dated. It was evident that the third 

respondent, if at all, filled the Form 17A in the absence of the candidates. That was the reason why the candidates, 

including the first respondent, failed to append their respective signatures on the said Form 17A. The said Form 17A 

could not therefore be said to be a valid legal instrument or statutory form containing the declared results. 

19. Whereas the regulations did not specify what ought to be done where there are cancellations and alterations, 

common sense dictated that where there was a cancellation or alteration in a statutory form, the same should be 

countersigned by the concerned official. In the case of electoral documents, it was important that the statutory forms 

which contain results that will invariably be required to be verified by other parties, including the members of the 

public, should be written without any alterations or cancellations. The cancellations and alterations in the Form 16As 

produced in the court raised question regarding the veracity and authenticity of the said results. 

20. The Electoral Commission had a duty to inculcate and imbue confidence in the electorate that its process was 

transparent, free and fair. 

21. There was a wide discrepancy in the total vote tally between the parliamentary, civic and presidential election. In 

normal circumstances, the variation in the tallies of the total votes cast for all the civic, parliamentary and presidential 

candidates would be marginal. The difference of over 5,000 votes between the parliamentary vote on the one hand and 

the presidential and the civic vote on the other was evidence of serious electoral malpractice. 

22. The totality of the electoral irregularities was of such a magnitude that the parliamentary election could not be 

said to have been free and fair. 

Petition allowed 


65




Burial dispute: Luo customary law and the burial of a married woman 

Charles Onyango Oduke & Another v Samuel Onindo Wambi 

Civil Case No 143 of 2009 

High Court, at Kisumu 

April 9,2010 

Ali Aroni. J 


Customary law – burial dispute – deceased wish to be interred/buried in her piece of land – defendant’s (deceased 

father- in -law) claim that he had a customary right to decide the burial place - Luo customary law in regard to burial 

of a married woman – claim by the plaintiffs that the defendant and his family mistreated the deceased during her life 

time and were therefore undeserving to bury her remains – effect of the deceased wish vis a vis Luo customary law on 

burial – factors the court should consider when applying customary law – whether in the circumstances the wishes of the 

deceased should be respected – Judicature Act (Cap 8)section 3 (2). 

The first plaintiff was the brother of (Veronica), the deceased and the second plaintiff was the deceased adopted son. 

The two plaintiffs brought a suit in the High Court challenging the claim of the defendant, who was the deceased’s 

father-in-law, that he was entitled under Luo customary law to bury the remains of the deceased. 

The plaintiff’s case was that the defendant and his family mistreated the deceased during her lifetime and as a result 

of the mistreatment, the deceased had established a home in Kakamega and on many occasions declared to her family 

and friends her wish to be interred on the said piece of land, in the event of her death. The plaintiffs further submitted 

that although the deceased was a Luo by tribe and thus subject to Luo customary law, the defendant’s attitude did 

not accord him the customary law right to bury her remains and she ought to be interred on her land in Kakamega 

according to her wishes. 

The defendant on the other hand denied the allegation that the deceased had made a wish to be buried on her piece of 

land, arguing that if there was such a wish, it was not unequivocal as there was no other place to bury her other than 

in Kamagambo, Rongo District. The defendant submitted that interring her on his land would be in accordance with 

her personal law which was Luo customary law. The defendant further submitted that customarily the right to bury 

the deceased rested on him and did not lie with the plaintiffs, arguing that the deceased and his son remained married 

up to the time of her death. The defendant strongly contended that because his son was sick, as the head of the family, 

the right to bury the deceased lay with him. 

The main issue before the court was whether the deceased had left a wish stating where she wanted to be buried, if 

the answer was in the affirmative and what was the effect of the said wish against Luo customary law on burial of a 

married woman. 

Held: 

1. Section 3(2) of the Judicature Act (Cap 8) required that while applying customary law, the courts should ensure 

that the same was not repugnant to justice and morality, and cases on customary law should be decided based on 

substantive justice. 

2. The Courts ought to give effect to the wishes of the deceased as far as possible unless for good reasons for example 

if the wishes were contrary to custom. 

3. The conduct and attitude of the defendant and the family were such that they were undeserving to bury the remains 

of the deceased and they could not therefore be heard to claim a customary right. 

4. Substantial justice would only be achieved if the wish of the deceased was respected. 

5.Obiter “Although the defendant is undeserving to bury Veronica, his wish to bury her may be an attempt by him and 

the rest of the family to make amends with the dead.” 

The body of the deceased would be released to the First Plaintiff and the defendant or anyone of them for interment in 

the Kakamega property in accordance with Catholic rituals as the deceased had directed. 

Advocates 

Mr. S. K’opot and Mr. A. Oyuko for the plaintiffs 

Mr. C. Ayayo for defendant. 

66




Nyayo House ‘torture chambers’: compensation for human rights violations 

Wachira Weheire v Attorney-General [2010] eKLR 

Miscellaneous Civil Case 1184 of 2003 

April 8, 2010 

H. M. Okwengu & G. Dulu JJ. 



Constitutional law-fundamental rights and freedoms-right to liberty - protection against 

arbitrary search-fair trial -freedom of assembly and association - protection from discrimination 

–whether there was enough evidence to prove that the said rights had been violated-Section 

72(1), 76(1), 77 (a),80(1) and 82(3) 

Constitutional Law – fundamental rights – rights of an accused person – right to be brought 

to court within a reasonable time after arrest –arrested person brought to court after 16 days - 

failure by the prosecution to offer an explanation–alleged breach of the right to protection against 

torture or to inhuman treatment-whether there was a violation of the petitioners constitutional 

rights – Constitution of Kenya section 72(3), (b) 74(1) 

Constitutional law-fundamental right and freedoms-limitation period-time within which to seek 

redress for breach of the rights- need to bring proceedings as early as possible- where there was 

no limitation under the Constitution 

The Hon. Lady Justice 

H. M. Okwengu 

Statutes-interpretation of statutes- Public Authorities Limitations Act-inconsistency with the Constitution-limitation 

provisions under the Public Authorities Limitations Act –whether the Public Authorities Limitations Act could override 

the Constitution and be used to curtail rights provided under the Constitution- Constitution of Kenya section 3, Public 

Authorities Limitations Act 

Constitutional law- fundamental rights and freedoms –procedure-manner in which a claim for the violation of the 

constitutional rights should be brought - sufficiency of facts-failure to raise the claim at the preliminary stage-where the 

pleadings were supported by evidence -whether there was breach of any fundamental rights 

Constitutional law – fundamental rights and freedoms-rules of procedure- Constitutional issue arising from the subordinate 

court- where the procedure required a party to raise the constitutional issue in proceedings before the subordinate court 

which would be then referred to the High Court for determination–where there was an alternative of filing it directly to 

the High Court-whether the application was competent-the Constitution of Kenya (Supervisory Jurisdiction and Protection 

of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001, rule 9 

Constitutional Law-jurisdiction-jurisdiction of the High Court to deal with the issue of violation of constitutional rightsclaim 

that the Truth, Justice and Reconciliation Commission (TJRC) could deal with the issue-whether the court could 

abdicate the responsibility to an inferior tribunal 

Constitutional law- fundamental rights and freedoms- breach of -award of damages- special damages neither pleaded 

nor proven-exemplary damages-whether it was appropriate to award exemplary or aggravated damages- whether general 

damages could be awarded 

Nyayo House in Nairobi, (now the 

headquarters of the Immigration 

Department) where the petitioner 

said he had been incarcerated and 

tortured. 

The petitioner filed a constitutional reference under section 84 of the Constitution and 

the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental 

Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001 

alleging breach of his fundamental rights and freedom. 

The petitioner alleged that he had been a victim of the “Nyayo Torture Chambers”. 

It was his case that he was arrested in December, 1986 and was locked up at Jogoo 

Road Police Station. He was later taken to the basement of Nyayo House in Nairobi, 

where he was held for 16 days and subjected to various acts of physical, mental and 

psychological torture. The petitioner averred that the acts that he was subjected 

to namely; being kept hungry and without sleep for several days, being physically 

assaulted by being kicked, whipped and burned with cigarettes, pricked with pins, 

hose-piped and placed naked in water-logged cells, were all cruel and degrading 

treatment and therefore constituted a violation of section 74(1) of the Constitution. 

He was subsequently arraigned in the Chief Magistrate’s Court at Nairobi on charges 

of taking an illegal oath and failure to prevent a felony and was convicted on his own 

plea of guilty. The petitioner appealed to the High Court in 1987, which appeal was 

rejected. He was hence confined in prison where he served his sentence until August, 

1989. According to the applicant, he could not lodge his claim immediately upon his 

release as he had to wait until after the year 2002 when there was a change in Government. 


67




In objecting to the claim, the State submitted that the matters complained of could be adequately adjudicated upon by 

the Truth, Justice, and Reconciliation Commission. In enacting the Truth Justice and Reconciliation Commission Act, 

Parliament was concerned that some of the transgressions against the country and its people could not be properly 

addressed by the judicial institutions due to procedural and other hindrances and that this constituted such a case. 

The State asserted that there had been an inordinate delay in filing the claim. It was argued that the complaints being 

tort in nature should have been brought within twelve months from the date on which the cause of action accrued as 

provided for under section 3 of the Public Authorities Limitation Act. 

It was argued that the petitioner having been arraigned in court, he ought to have raised the issues regarding the 

violation of his rights at that stage. He had been tried by a court of competent jurisdiction and his appeal dismissed 

and hence the High Court was functus officio. It was further submitted that since the petitioner had been convicted 

on his own plea of guilty, he had acquiesced to the magistrate’s decision by appealing against the decision instead of 

challenging the constitutionality of the proceedings. 

Held: 

1. Neither section 84 of the Constitution, nor the Constitution of Kenya (Protection of Fundamental Rights and 

Freedoms of the Individual) Practice and Procedure Rules, provided for any limitation period for bringing actions to 

enforce fundamental rights. 

2. Section 3 of the Constitution provided that the Constitution had the force of law throughout Kenya, and if any other 

law was inconsistent with the Constitution, the Constitution had to prevail. The provisions of the Public Authorities 

Limitations Act (Cap 36) limiting the period for initiating actions against public authorities was inconsistent with the 

Constitution, to the extent that it limited a party’s rights to seek redress for contravention of his fundamental rights. 

The Public Authorities Limitations Act could not override the Constitution and it could not therefore be used to curtail 

rights provided under the Constitution. The petitioner’s claim arising from violation of his constitutional rights was 

hence not statute barred. 

3. A person, who came to court under Section 84 of the Constitution alleging contravention of his fundamental rights, 

was required to be candid with regard to the alleged contraventions, the sections contravened, as well as facts supporting 

the contravention. However, the issue of sufficiency of facts set out in the summons and supporting affidavits, was a 

preliminary issue which ought to have been raised before the hearing of the originating summons, and directions of the 

court sought. It was hence late for the defendant to complain about the sufficiency of facts at the hearing stage. Besides, 

the facts deponed to by the petitioner, provided a sufficient base for the petitioner’s claim regarding the infringement 

of his rights under the Constitution. 

4. Although the issue of the contravention of the petitioner’s constitutional rights could have been raised before 

the trial magistrate, and referred to the High Court for determination, it was not mandatory. The petitioner had the 

alternative of filing an application directly to the High Court (as he eventually did), under rule 9 of the Constitution of 

Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court 

Practice and Procedure Rules, 2001 

5. Although there was no time limitation for claims regarding violation of fundamental rights and freedoms of the 

individual, there was need to bring proceedings to court as early as possible. However, the petitioner had reasonably 

explained that he had been confined in prison and upon his release, he could not immediately lodge his claim until 

after the year 2002, when elections were held and there was change in the Government. 

6. The petitioner had come to court seeking redress for specific violations of his fundamental rights under the supreme 

law of the land. Nothing had been laid before the court to show that there was any hindrance, procedural or otherwise, 

to the court addressing the violations complained of. The court not only had powers to deal with the issue of violation 

of constitutional rights, but it also had a responsibility to uphold the Constitution of Kenya. There was therefore no 

reason why the court could abdicate that responsibility to the Truth, Justice and Reconciliation Commission which 

was an inferior Tribunal. 

7. Violation of the petitioner’s right to personal liberty under Section 72(1) and (3)(a) & (b) of the Constitution was 

clearly confirmed by the charge sheet and the proceedings in the Chief Magistrate’s Court. No explanation had been 

offered to the High Court and there was no justification for the police to hold the petitioner for a period of 16 days. 

8. The presence of the Nyayo House Torture Chamber was not in dispute. The fact that the defendant had not attempted 

to deny these allegations under oath was an indication that the allegations were true. The acts that the petitioner was 

subjected to were all cruel and degrading treatment and therefore a violation of Section 74(1) of the Constitution which 

provided against torture or inhuman or degrading punishment or to any other treatment. 

9. The alleged house search was not unlawful search as under Section 76 of the Constitution. The search of the 

petitioner’s house was related to the criminal charge with which the petitioner was subsequently arraigned in court. The 

petitioner’s right to protection against arbitrary search or entry as provided under Section 76(1) of the Constitution 

was not absolute but was subject to subsection (2) which allowed such search in the interest of defence, public safety 

and public order or maintenance of public security. 

10. The petitioner had relinquished his constitutional rights under Section 77 of the Constitution with regard to fair 

trial by submitting to a plea of guilty. He further acquiesced in the Chief magistrate’s decision by appealing from that 

decision instead of challenging the constitutionality of the proceedings. 

68




11. Confinement in prison was in accordance with Section 72(1) (a) of the Constitution and therefore lawful. 

12. There was no evidence in support of the allegations that the petitioner’s rights to protection of freedom of assembly 

and association under Section 80(1) and protection from discrimination under Section 82(3) of the Constitution were 

violated. 

13. The petitioner’s constitutional rights to personal liberty under Section 72 of the Constitution were violated and the 

petitioner’s rights to protection against torture, degrading and inhuman treatment under Section 74 of the Constitution 

were also violated and hence an award of damages was appropriate. 

14. The petitioner had not specifically pleaded or proved any special damages and in light of the acknowledged 

change in the government, and the attempts at dealing with human rights violation, it was inappropriate to award 

exemplary or aggravated damages. 

Petitioner awarded the sum of Kshs.2.5 million as general damages 

Application for an Order of Stay of Proceedings 

Piedmont Investment Limited v Standard Assurance Limited & 2 Others 

Civil case no 806 of 2003 


Kimaru. J 

March 25,2010 


Civil practice and procedure – stay of proceedings – application for an order of stay of proceedings – application filed by 

former directors of the first defendant under statutory management – failure by the former directors of the first defendant 

to disclose to the Court of Appeal the status of the first defendant- where the High Court had issued a restraining order 

against the defendants from interfering with the suit property - whether the Court of Appeal in granting an order of 

stay of proceedings in the High Court meant staying the restraining order issued by the High Court – whether the former 

directors of the first defendant had the legal capacity to appear before the Court of Appeal- whether the High Court’s 

restraining order superceded any other order issued by the High Court-Insurance Act (Cap 487) section 67(2) (1) - Court 

of Appeal Rules Rule 5(2)(b). 

Land law – transfer of land –dispute as to title to land - claim that the second defendant had secured from the first defendant 

land through fraudulent means in violation of a court order - where the second defendant further transferred the suit 

land to a third party – whether the first and second defendants had legal capacity to transfer the land – inherent power 

of the High Court to rectify an act done in contempt of it’s orders - whether the third party was an innocent purchaser for 

value without notice. 

The High Court in a suit filed by the plaintiff regarding the suit land, issued an order restraining the former directors of 

the First Defendant from dealing with the suit property pending the hearing and determination of the suit. The former 

directors of the First Defendant were aggrieved by the court’s decision and filed an appeal to the Court of Appeal. 

Contemporaneous with filing the appeal, the First Defendant filed an application under Rule 5(2) (b) of the Court of 

Appeal Rules, seeking an order to stay proceedings in the High Court pending the hearing and determination of an 

intended appeal. The Court of Appeal, while making a ruling in respect of the application granted an interim stay to 

last until the determination of the application. 

The plaintiff on its part, by an application to the High Court supported by the statutory manager of the First Defendant, 

sought orders to revert the suit land to the First Defendant. The plaintiff submitted that the former directors of the 

First Defendant, in full knowledge that they had no authority or legal capacity to deal with the property of the First 

Defendant, went ahead and had secured the transfer of the suit property to the Second Defendant, a company to which 

they had an association with, arguing that the transfer was secured by the former directors by lodging with the land 

registry a previous order of the High Court which had been superceded by a subsequent order of the High Court. 

The Second and Third Defendants opposed the application by submitting that the High Court lacked jurisdiction to 

proceed with the application since the Court of Appeal had stayed further proceedings in the suit. The Third Defendant 

further submitted that he was an innocent purchaser for value without notice. 

Held: 

1. In granting an order staying proceedings before the High Court, the Court of Appeal did not stay the order of the 

High Court which restrained the First Defendant from transferring the suit property to any third party pending the 

hearing and determination of the suit. The Court of Appeal stayed proceedings in the High Court pending further 

orders from the High Court. 

2. The former directors of the First Defendant failed to inform the Court of Appeal that the management status 

of the First Defendant had changed, therefore the former directors of the First Defendant had no legal capacity to 

appear before the Court of Appeal when they knew very well that the First Defendant had been placed under statutory 

management. 


69




3. The former directors of the First Defendant could not abuse the due process of the court and subvert the course 

of justice by manipulating judicial process and then take a moral high ground and claim that they were enforcing their 

right in the same courts. The High Court had jurisdiction to hear and determine the matter before it especially where 

it appeared that the due process of the court was being hijacked for unlawful purpose. 

The High Court had inherent jurisdiction to grant orders to rectify an act which had been done fraudulently and in 

contempt of its orders. The inherent powers of the High Court would be invoked where it became apparently clear 

that a party to a suit was bent on manipulating the judicial process for unlawful purpose. 

4. The order issued by the High Court in respect of the suit property directing that status quo be maintained and 

prohibiting any transaction in respect of the suit property pending further orders from the High Court, superceded any 

other orders issued in the suit by any other Judge. It was therefore clear that the former directors of the First Defendant 

fraudulently obtained the removal of the court order earlier registered by the plaintiff in the title. 

5. The Second Defendant had no legal capacity to pass good title to the Third Defendant when in the first place it had 

secured the transfer to itself by clear fraud. The Third Defendant’s consolation was that it could secure a refund of the 

purchase consideration from the Second Defendant. 

Application allowed, ownership of the suit property would revert back to the First Defendant within fourteen days or in 

default, the title unlawfully held by any party would be declared cancelled. 

Registration of a Political Party 

Isaiah Gichu Ndirangu v Registrar of Political Parties [2010] eKLR 

Miscellaneous Application 377 of 2009 

February 16, 2010 

RPV. Wendoh J. 



Judicial Review-mandamus-application to compel the Registrar of Political parties to register 

the Party of Democratic Unity and issue it with a registration certificate- order of prohibition 

to bar the Registrar from declaring the party unlawful-requirements to be met before a party 

could be registered-whether the applicant had met all the mandatory requirements 

Judicial Review-rules of procedure-pleadings- grounds to be relied upon in the Notice of Motion 

those pleaded in the statutory statement- applicant raising new grounds not pleaded-whether 

the new arguments were acceptable- Civil Procedure Rules Order 53 Rule 4 (1) 

Political Party-registration of parties-requirements- a proposed party to have not less than 

two hundred members who were registered voters for purpose of parliamentary elections 

from each province- where the applicant could not comply with that requirement as the voters 

register had been done away with following the disbandment of the Electoral Commission 

of Kenya (ECK)-Constitution of Kenya (Amendment) Act section 41A (d) replacing the ECK 

with the Interim Independent Electoral Commission of Kenya (IIEC)-the voters register being 

done away with and IIEC mandated to compile a new register-requirement for registration of 

parties- Registrar declining to accept the applicant’s documents pending the compilation of a 


RPV. Wendoh 

fresh register of voters -whether the Registrar had acted illegally in declining to register the applicant’s party- Constitution 

of Kenya (Amendment) Act, 2008, section 41A (d)-Political Parties Act sections 18, 19 and 23 

The applicant, the Chairman of the Party of Democratic Unity, sought orders of judicial review to compel the respondent, 

the Registrar of Political Parties, to register the party and issue it with a registration certificate and an order of prohibition 

to bar the Registrar from declaring the party unlawful. 

The applicant had previously written to the Registrar on December 19, 2008 seeking extension of time of 180 days 

so that the party could comply with Section 23 of the new Political Parties Act. However, on December 30, 2008 the 

respondent instructed the applicant to amend the party’s constitution as required by section 9 of the Act within 3 

months. He duly complied and amended the party’s constitution and the respondent received it and stamped it and 

asked for the list of voters as required by Section 23 of the Political Parties Act. He submitted his documents on June 5, 

2009 and applied for full registration but the Registrar declined to accept the documents for reasons that the Electoral 

Commission of Kenya had been disbanded. 

The applicant alleged that the Registrar was malicious because that was not a new party but only that it had not been 

issued with registration certificate within the time stipulated by law. 

70




In opposing the Notice of Motion, the Registrar deponed that she had written to the Party highlighting the transitional 

provisions under section 44 of the Political Parties Act. The provisions specified that the political parties that were 

in existence when the Act came into force had 180 days to apply for full registration and the period was to expire on 

December 31, 2008. However, the applicant failed to meet that deadline and the voters register ceased to exist after 

the Constitutional Amendment Act, 2008 came into force on December 29, 2008 which amended Section 41 of the 

Constitution creating the Interim Independent Electoral Commission (IIEC), which became the successor of the Electoral 

Commission of Kenya (ECK). The ECK having been disbanded, the Voters’ Register was done away with. 

Held: 

1. Section 18 of the Political Parties Act required all organizations which functioned as political parties to be 

registered in accordance with the Act. Subsection (2) allowed for provisional registration of a proposed party. A 

provisional registration was required to be accompanied with the party’s Constitution and then comply with Section 

19. Section 23 set out the requirements for full registration. A proposed party must have been previously registered, 

with not less than two hundred members who were registered voters for purposes of parliamentary elections from 

each province. The applicant having had provisional registration, he had to comply with the rest of the requirements 

before full registration. 

2. The applicant could not comply with Section 23 of the Political Parties Act in order to be fully registered as by June 

2009 when he submitted his documents, the Constitution of Kenya (Amendment) Act had come into operation and the 

ECK and the voters register had been done away with. There was nothing to compare with to confirm the membership 

of the party. The Registrar was therefore correct in declining to accept the applicant’s documents till the IIEC could 

come up with another voters’ register. 

3. Section 41 A (d) of the Constitution of Kenya (Amendment) Act, 2008 gave the IIEC the mandate to create a new 

voters register and undertake registration of voters. The applicant had been caught up in the web of time between the 

repealed provisions of the Constitution and the coming into force of the Political Parties Act. 

4. The Registrar had not acted illegally but strictly in accordance with the law. The party could not be registered in 

contravention of to the requirements for registration. For an act to be illegal the Registrar had to have acted contrary 

to the provisions of the law or misunderstood the law that regulated his decision in this case, the Political Parties Act 

and the Constitution of Kenya (Amendment) Act, 2008. 

5. By ‘illegality’ as a ground for judicial review the decision maker had to understand correctly the law that regulated 

the decision making power and had to give effect to it. The Registrar’s decision was within the law and could not be 

faulted. 

6. The applicant had to wait for the IIEC to come up with another voters register so that he could comply with sections 

18 and 23 of the Political Parties Act. 

7. In Judicial Review the grounds to be relied upon in the Notice of Motion were those pleaded in the statutory 

statement and none could be introduced during the hearing of the Notice of Motion. Order 53 Rule 4 (1) of the Civil 

Procedure Rules barred an applicant from relying on any other grounds except those set out in the statement. The 

applicant purported to introduce other grounds of malice or bias in his arguments but those were not pleaded and 

hence were unacceptable. 


Advocates 

Isaiah Gichu Ndirangu for Applicant 

Mr. Kipkogei for Respondent 

Jurisdiction of a Provincial Land Disputes Committee 

Issack Maina Murathe v Jesidah Wanjiru Murathe 

Civil Appeal No 87 of 2007 

High Court at Embu 

Karanja. J 

February 16,2010 


Land law –jurisdiction of the Provincial Land Disputes Committee – where the Provincial Land Disputes Tribunal directed 

the sub-division of the appellant’s land and issuance of land title deeds to the respondent – whether the Tribunal had 

jurisdiction to interfere with the appellant’s proprietory rights – whether the Tibunal acted ultra vires the Land Disputes 

Tribunals Act –whether the appeal had merit- Land Disputes Tribunal Act of 1990 section 3(1). 

The Provincial Land Disputes Committee directed that the appellant’s land be sub-divided and the respondent be 

given one acre and title documents to the land. Being aggrieved, the appellant brought an appeal to the High Court 

challenging the decision of the committee. 


71




The issue before the High Court was whether the Provincial Land Disputes Committee had jurisdiction over proprietory 

rights. 

Held: 

1. The Jurisdiction to handle claims under the Land Disputes Tribunal was provided for under Section 3(1) of the Land 

Disputes Tribunal Act of 1990. This section provided for division of or determination of boundaries to land, including 

land held in common, claim to occupy or work land and trespass to land. Therefore the Tribunal’s jurisdiction did not 

extend to determining ownership of land and cancellation or alteration of Title Deeds. 

2. The Tribunal/Provincial Land Disputes Committee directive that the appellant’s land be sub-divided and the 

respondent be issued with a Title Deed, was clearly an interference with the proprietory rights of the appellant, 

conferred on him under the Registered Land Act (Cap 300). 

3. Issues of ownership of Registered Land and alteration or cancellation of Title Deeds were strictly within the domain 

of the High Court and the subordinate court in few instances depending on the value of the land. The orders made by 

the Tribunal/Provincial Land Disputes Committee though well intentioned, were therefore ultra vires the law and the 

same were null and void for all intents and purposes. Had the respondent been given the right to work and occupy 

the land without the order that she be given the Title Deed, the award would have been sustained. 


Advocate 

Maina Kagio for the Appellant 

Challenge of the by-laws under the Certified Pubic Secretaries of Kenya Act 

Republic v Institute of Certified Public Secretaries Of Kenya Ex Parte, Mundia Njeru Geteria 

Miscellaneous Civil Case No.322 Of 2008 

February 12, 2010 

RPV. Wendoh J. 



Judicial Review-certiorari-ultra vires by- laws-applicant seeking to challenge by-laws made under the Certified Pubic 

Secretaries of Kenya Act -claim that the by-laws were a nullity and void having been made by the respondent (Institute of 

Certified Public Secretaries) in excess of its powers-whether the orders sought could be granted 

Judicial Review-certiorari-rules of procedure-time within which to institute proceedings-whether Order 53 rule 2 Civil 

Procedure Rules included anything covered by the principle of ultra vires or nullities or decisions made without jurisdictionduty 

of the applicant to demonstrate that the decision was a nullity or was made without jurisdiction-whether the court 

had the jurisdiction to hear the matter- Civil Procedure Rules Order 53 rule 2 

Judicial Review-approbation and reprobation–relevance of the conduct of the applicant - applicant to approach the 

court with utmost good faith- applicant having been a beneficiary of the By-laws he purported to challenge-whether the 

applicant was entitled to the discretionary orders of Judicial Review 

Statutes- Certified Pubic Secretaries of Kenya Act -promulgation of regulations under the Act-powers donated only to 

the Minister in charge-respondent purporting to promulgate regulations-whether the respondent had the power to make 

Regulations- provisions of the Act vis-à-vis the by-laws- by-laws 27 to 38 inconsistent and in conflict with section 9 and 

the second schedule of the Act-by-laws purporting to provide for Council meetings and elections –provision already in the 

second schedule of the Act- whether the Regulations in relation to the elections of the meeting were a nullity ab initio- 

Certified Pubic Secretaries of Kenya Act (Cap 534) sections 7, 9 and 37, 

Statutes–subsidiary legislation–procedure in promulgating subsidiary legislation–gazettement- requirement that all 

subsidiary legislation to be gazetted- where there was no evidence that the impugned Regulations were ever gazetted as 

required by law-whether the regulations had the force of law-Interpretation and General Provisions Act, (Cap 2) Section 

27 

The ex parte applicant, a member of the Institute of Certified Public Secretaries of Kenya (ICPSK) sought to challenge 

the election of Council members of ICPSK during the 17 th ICPSK Annual General Meeting (AGM) for being ulta vires 

the Act and Regulations under which the elections were conducted. He sought to have them declared null and void on 

the ground that the respondent had exceeded its powers in making them. 

The ICPSK had given notice of its 17 th AGM where elections were to be done. By then, the applicant who was a Council 

Member presented his nomination papers to the secretary seeking to be elected as Chairman of the Institute and 

72




tendered a conditional resignation under By-Law 28 but questioned the legality of the said by-Law by letter and also 

in the meeting. The issue of the legality of by-Law 28 was ignored on the ground that his resignation from the Council 

had been accepted though it was factually incorrect that he had offered to record his conditional resignation but it 

was rejected. The applicant raised an objection that if he was not elected, he should retain his Council position until 

2009. He argued that the by-laws were illegal and inconsistent with the Act. After deliberations, it was decided that 

the applicant had validly resigned from the Council and was a candidate for chairmanship. 

In opposing the Notice of Motion, the Chief Executive and Secretary of the ICPSK deponed that the application had 

been brought out of time. It was contended that under Section 37 of the Act, the Minister was empowered to make 

regulations prescribing anything required to be done under the Act. 

It was further argued that Section 7 of the Act empowered the Institute to perform certain functions and pursuant to 

that, the institute tabled and adopted its first by-laws on June 13, 1995 at an AGM which included provisions on election 

of Chairman and Council members. It was also contended that the applicant was not entitled to judicial review orders 

as he was approbating and reprobating. It was alleged that he been a beneficiary of the said regulations since he had 

served as a Council Member since their promulgation and only sought to challenge them after his loss. 

Held; 

1. Order 53 rule 2 of the Civil Procedure Rules did not include anything covered by the principle of ultra vires or 

nullities or decisions made without jurisdiction. A decision which was a nullity ‘ab initio’ was no decision at all and an 

order of certiorari could lie at any time. In the circumstances, the by-laws/regulations could not be said to be challenged 

outside the time allowed. It was however upon the applicant to demonstrate that they were nullities or made without 

jurisdiction. The court had jurisdiction to hear and determine the matter. 

2. Section 37 of the Certified Pubic Secretaries of Kenya Act mandated the Minister to make regulations prescribing 

anything or for purposes of giving effect to the Act. The Minister in charge had not promulgated any regulations under 

that section. Though the respondent purported to promulgate the impugned by-laws under Section 7 of the Act, 

nothing in that section stipulated provisions to suggest that the ICPSK had power to make the regulations. The power 

to promulgate the regulations was specifically donated to the Minister and if the intention of the legislature was to 

donate those powers to the respondent, that would have been specified. 

3. Under Section 27 of the Interpretation and General Provisions Act (Cap 2), subsidiary legislation had to be gazetted. 

There was no evidence that the impugned regulations were ever gazetted as required by law and it was not known when 

they came into force. ICPSK had no power to promulgate any regulations and whatever was held out as regulations 

had not been gazetted and had no force of law 

4. By-laws 27 to 38 were inconsistent and in conflict with section 9 and the second schedule of the Act. As they were 

a duplication of what was contained in the second schedule. The by-laws purported to provide for Council meetings 

and elections. There already were provisions relating to the Council in the Act and ICPSK’s promulgation of other 

regulations to apply in place of the Act and second schedule was ultra vires. The regulations in relation to the elections 

of the meeting were hence a nullity ab initio. 

5. The conduct of a party seeking judicial review orders was an important fact to consider. A party who approached the 

court for judicial review orders had to do so with clean hands and in utmost good faith. The applicant was approbating 

and reprobating and could not be entitled to judicial review orders. The doctrine of approbation and reprobation 

required for its foundation inconsistency of conduct, as where a man, having accepted a benefit given him by a judgment 

cannot allege the invalidity of the judgment which conferred the benefit. 

Application allowed in part; an order of certiorari issued to quash the impugned by-laws 

Advocates 

Mr. Kibe for Applicant 

Mr. Chacha for Respondent 

Common intention in a ‘mob justice’ case. 

Republic v Peterson Karani Njogu 


M.S.A. Makhandia 

February 5 th 2010 

Court Station: Nyeri 


Criminal Law - common intent-several persons acting in concert to execute a common action - mob beating of a suspected 

criminal-“mob justice”-necessary ingredients in proving common intent and motive-court position where evidence 


73




establishes that the accused person’s were acting jointly and or on common design-malice aforethought-whether failure 

to prove motive vitiated an accused persons conviction-whether it was necessary to prove motive as one of the elements 

in a criminal offence-whether the prosecution discharged its onus of establishing a prima facie case against both accused 

persons-Penal Code (Cap 63) 9, section 203, 204, 

Criminal Practice and Procedure-witness-prosecution witness-prosecution failing to call the investigating officer as 

a witness in the trial-other witness categorically placing the accused at the crime scene-circumstances under which the 

evidence of the investigating officer would have been required-effect of failing to call the investigating officer-whether 

the lack of evidence left a gap in the prosecution’s evidence 

Criminal Practice and Procedure-defence-defence of alibi-accused person raising defence of alibi-accused claiming that 

the complainants had a grudge against him-viability of the defence-whether the defence was an afterthought 

The accused persons were arraigned 

before the High Court on an information 

charging them with murder contrary to 

section 203 as read with section 204 of 

the Penal Code (Cap 63). During the trial 

a total of nine witnesses testified for the 

prosecution. The evidence was that the 

accused person had been among a mob 

of people who had gone to the deceased’s 

home and inflicted fatal injuries on him 

allegedly because they suspected him 

of theft. Most of the witnesses testified 

to knowing both accused persons 

personally. 

A post-mortem examination of the 

deceased’s body, a report of which had been adduced in evidence, stated that the deceased had multiple bodily injuries 

and that he had suffered brain damage due to serious head injuries. 

In their defence the accused persons claimed not to have known the deceased. It had been their contention that they 

were not in the mob that attacked the deceased on the material day and further that the witnesses had a grudge against 

them. 

Held: 

1. Failure to prove motive did not, per se, vitiate an accused person’s conviction because under section 9 of the Penal 

Code motive was not one of the necessary elements to be proven in a criminal offence. However even if motive was 

necessary, it could be found in the evidence of the witnesses who apparently alongside the deceased, were allegedly 

being disciplined for having stolen. 

2. Where the case against two accused persons proceeded on the basis of their acting in concert then both could be 

found guilty, if the evidence established that they were acting jointly and or on common design. It did not matter that 

they were in an amorphous group. The deceased was a victim of their mob justice. The action of each of them during the 

execution of the mandate was the action of all others as it was in pursuance of a common purpose. The action herein 

of the accused was in furtherance of that common purpose and the action of each affected the other. 

3. There was no law to the effect that in every case the investigating officer had to testify. Such cases were confined to 

their peculiar facts and circumstances. In this case, the evidence of the investigating officer would have been necessary 

if there had been loose ends in the prosecution case that required tying up. There was no unbridgeable gap in the 

prosecution case that his/her evidence would have been of assistance. 

4. The accused person’s defence of alibi when juxtaposed against the overwhelming prosecution evidence failed to 

stand. The witnesses had no reason to have a grudge against the accused and the defence was a mere afterthought. It 

was the accused in the company of others who inflicted fatal injuries on the deceased that led to his subsequent death. 

They were properly and positively identified in the act by the witnesses. They knew that their actions would probably 

cause and indeed did cause the death of the deceased. 

Accused convicted 

Advocates 

Ms Mwai counsel for the accused 

Mr. Makura Senior State Counsel 

74




Infringement of Trademark Rights 

Glaxo Group Limited v Syner-med Pharmaceuticals Ltd 

Miscellaneous Application 792 of 2009 


L. Kimaru. J 

February 4, 2010 

Reported by Andrew Halonyere. 

Intellectual Property – infringement of trademark rights – appeal against the decision of the Registrar of Trademarks to 

register the respondent’s trade name “SYNERCEF” – appellant’s contention that the trade name was phonetically similar in 

pronunciation and appeared visually similar to another registered trademark “ZINACEF” – whether there was infringement 

of trade mark rights - whether the appeal had merit – Trademark Act (Cap 506) sections 7,14,15,18 (1),(3) and 52. 

The appellant and the defendant were both pharmaceutical companies engaged in the 

manufacture and sale of pharmaceutical products. The appellant registered a trademark 

“ZINACEF” in Kenya in respect of class 5 in relation to pharmaceutical and medicinal 

preparations under the Trade Marks Act. The respondent applied to the Registrar of 

Trademarks to register the trade name “SYNERCEF” as a trademark in the same class. The 

appellant opposed the registration of the trademark on the ground that it sounded phonetically 

and appeared visually the same as the appellant’s trademark “ZINACEF”. 

The Registrar of Trademarks, having heard representations made by the appellant and 

the respondent, dismissed the appellant’s opposition on among other grounds, that the 

pronunciation and semantics of the first syllables were different. 

Being aggrieved by the decision, the appellant, pursuant to the provisions of Section 21(6) & (7) of the Trade Marks 

Act filed an appeal to the High Court. 

The issue before the High Court was whether the Registrar had reached the correct decision in disallowing the opposition 

by the appellant for the registration of the trademark “SYNERCEF”. 

Held: 

1. It was evident that the Registrar of Trade Marks fell in error when he truncated the name “SYNERCEF” and “ZINACEF” 

by excluding the suffix “CEF” and thereby reaching the wrong conclusion that the prefix “SYNER” and “ZINA” had no 

meaning and therefore the subsequent registration did not constitute an infringement of the appellant’s trade name. 

The correct position of the law was that in such cases, the words that were the subject of the dispute relating to a 

trade name should have been considered as a whole and not in the manner that the Registrar did. If the Registrar had 

considered the words as a whole he would undoubtedly have arrived at a different decision. Therefore it was clear that 

the words “SYNERCEF” and “ZINACEF” were phonetically similar in pronunciation and it was likely to cause confusion 

and deception in the market. 

2. The Court took Judicial notice of the fact that many people in Kenya were likely to pronounce the letter “SY” as 

“ZI” and therefore the two names would be pronounced in a phonetically identical manner and not distinctly as was 

claimed by the respondent. 

3. The fact that the two products sold by the appellant and the respondent were prescription only, did not preclude 

the fact that confusion would have been caused when an order was made orally or by telephone to such professions 

such as pharmacists or doctors. 

4. The name “SYNERCEF” was so similar, phonetically and visually to the registered trade mark of the appellant 

“ZINACEF” to an extent that it would cause confusion and deception in the minds of the public. 

Appeal allowed, registration of “SYNERCEF” as a trademark cancelled. 

Advocates 

Mr Kinoti for the Appellant, 

Mr Sharad Rao for the Respondent 


75




Change of Presiding Officer in the Course of Trial 

Joseph Mwangi Esop v Republic 


25 th January 2010 

M.S.A Makhandia, J. 

High Court at Nyeri 

Reporter by Monica Achode 

Case History 

Appeal from the original conviction and sentence of the Senior Resident Magistrate’s Court at Karatina in SRMCR.992 

of 2006 by L. MBUGUA - SRM 

Criminal Law-rape-appeal against a charge of rape-alternative charge of indecent assault-where three days had lapsed 

before the incident was reported-appeal on grounds that the appellant had been charged with a non-existent provision 

of the laws-where the Sexual Offences Act (No. 3 of 2006) had already come into law at the time-Penal Code (Cap 63) 

section 140 

Criminal Practice and Procedure-trial- trial conducted by two magistrates in succession – right of an accused person 

to have the case start afresh in such circumstances - accused person having asked the succeeding magistrate that the trial 

of the case should start afresh – request having been denied – whether the trial court had misdirected itself – Criminal 

Procedure Coe (Cap. 75) section 200(3) 

The appellant brought an appeal against the decision of the lower court convicting him on a charge of rape. Amongst 

the grounds for appeal were that the appellant had been convicted on a non-existent provision of law. At the time of 

his arrest and charging the Sexual Offences Act (No. 3 of 2006) had already come into force yet he had been charged 

under the Penal Code (Cap 63) section 140 (now repealed). 

The appellant also claimed that the magistrate’s court had misdirected itself in failing to follow section 200 of the Criminal 

Procedure Act (Cap 75) which provided that where a succeeding magistrate commenced the hearing of proceedings 

and part of the evidence had been recorded by his predecessor, the accused person could demand that any witness be 

re-summoned and reheard and the succeeding magistrate was bound to inform the accused person of that right. 

Held: 

1. The appellant was convicted on a non-existent provision of the law and offence. At the time the appellant was 

charged, the Sexual Offences Act had come into force thereby repealing the offence of rape as defined under section 

140 of the Penal Code. The Sexual Offences Act had come into force on July 21, 2006 yet the appellant was alleged to 

have committed the offence on October 9, 2006. He could therefore only have been charged under the Sexual Offences 

Act and not the Penal Code. 

2. The fact that the trial was presided over by two magistrates entitled the appellant to demand to have the case 

start de novo. In overruling that request the trial court grossly misdirected itself and misapprehended section 200(3) 

of the Criminal Procedure Code which were couched in mandatory terms. The trial court ought to have acceded to 

and acted upon the demand by the appellant to have the case commence de novo. In the premise, the appellant was 

unfairly tried. 

Appeal allowed, conviction quashed and appellant set free. 

Advocate 

Mr. Makura learned Senior Sate Counsel 

Period of Limitation in Contracts of Carriage by Air 

Farida Abdullahi Ibrahim & 2 Others v Gulf Air Limited [2010] Eklr 


R. N. Sitati 


January 22nd, 2010 


Case History 

An Appeal from the ruling of the Senior Principal Magistrate, Mr. C.O. Kanyangi delivered on June 13, 2002 in Nairobi 

CMCC No. E J 406 of 2001, Farida Abdukahi Ibrahim, Asnah Abudllahi, Ibrahim and Nagma Abudllahi Ibrahim. 

76




Contract - carriage by air- period of limitation in such contracts- appeal against the decision 

of the trial court declaring that the suit had been time barred and not based on contract-suit 

by air passenger against an airline operator - defendant refusing to allow the appellant access 

onto a connecting flight due to appellant’s lack of valid travelling documents- time within 

which the cause of action ought to have been brought -period of limitation being two years– 

interpretation of Article 29(2) of the Warsaw Convention-whether this was a special contract 

to which the Law of Contract did not apply - whether the suit was time barred-Carriage by 

Air Act (2 of 1993) - Civil Procedure Act (Cap 21) Section 3A- Civil Procedure Rules Order 6 

Rule 13(1)(a -Warsaw Convention on Carriage by Air, Article 29 of the as amended by The 

Hague Protocol, (1995) 

The appellants/plaintiffs brought an appeal against the decision of a magistrate’s court 

striking out their suit for damages against the respondent/defendant, an airline operator. 

The appellants commenced the action by filing a plaint on June 14 th 2001. The claim had 


R. N. Sitati 

arisen out of the respondent’s refusal to allow the appellants access onto a connecting flight in Abu Dhabi on or about 

December 20 th 1998. In doing so, the appellants averred, that the respondent left the three minor appellants stranded 

at a transit toll in Abu Dhabi Airport where they spent three days out in the cold. The appellants further claimed that 

in the ensuing confusion their luggage worth Kshs 72,000/= was also lost and/or misplaced by the respondent. 

The respondent on its part claimed that it had been unable to 

perform its part of the contract on grounds that the plaintiffs did not 

possess valid travel documents to enable them enter Germany. It 

was their claim that the suit did not lie against them as it had been 

extinguished by the provisions of the Carriage by Air Act (2 of 1993) 

and sought to have it struck out. It further claimed that the cause 

of action was time barred by the express provisions of the Act. The 

defendant’s application to strike out was based on the contention 

that the cause of action arose on December 21, 1998 and the suit, 

which had been filed in June 14 th 2001, ought to have been filed 

within two years reckoned from that date. 

As regards the appellants’ alleged lost luggage, the respondent 

averred that the said luggage had only been misplaced and that when the luggage was eventually found, it was 

forwarded to the appellants on December 30, 1998. The respondent claimed that the appellants accepted the same and 

acknowledged such receipt in writing. The respondents denied that they were in breach of the contract of carriage. 

In its ruling striking out the suit the trial court found that the action had been brought after the two year period allowed 

under the Carriage by Air Act, having been filed six months after the period had expired. The trial court found that it 

had been improperly placed before the court. 

The issues before the superior court were whether there had indeed been a contract of carriage by air between the 

appellants and the respondents and if so, whether it had been breached; whether it was a special contract to which 

the law of contract did not apply; and whether indeed the suit had been time barred. 

Held: 

1. As per section 7(1) of the Carriage by Air Act no action against a carrier’s servant or agent which arose out of damage 

to which the Warsaw Convention on Carriage by Air Convention related would, if he was acting within the scope of his 

employment, be brought after more than two years, reckoned from the date of arrival at the destination or from the 

date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. 

2. Under Article 29 of the Warsaw Convention on Carriage by Air the suit ought to have been filed on or before 

December 21, 2000 but was not filed until June 14, 2001, six months outside of the statutory period and without leave 

of court. The carriage stopped on December 21, 1998. Therefore the suit was filed out of time. 

3. Any claims relating to the periods prior to the cause of action which was more than two years before the lodging 

of the counter claim and set off were extinguished by virtue of Article 29 of the Convention. 


Advocates: 

M/s Nyakianga for the Plaintiff/Applicant 

Mr. Wasonga for the Defendant/Respondent 


77




Procedure in taking witness testimony in court 

Charles Wanjohi Murage v Republic 


M. S. A. Makhandia 

High Court at Nyeri 

November 25 th , 2009 


Case History 

Appeal from the original conviction and sentence of the Chief Magistrate’s Court at Nyeri in Criminal Case No. 80 of 

2007 by L.W. GITARI - SPM 

Criminal Practice and Procedure - witnesses-witness testimony-manner in which witness testimony may be taken in 

court -record of the trial failing to show whether the witnesses had been sworn or affirmed before their evidence was 

received-circumstances under which witness could be allowed to testify without being sworn and or affirmed-first appellate 

court being in doubt as to whether the witnesses had been sworn in-person in whose favor the doubt ought to have been 

resolved-whether the appellant had been prejudiced by a conviction on unsworn evidence. 

Criminal Practice and Procedure-retrial-application for retrial-witnesses in the original trial having testified without 

being sworn in-prosecution having proved its case against the appellant beyond reasonable doubt-circumstances under 

which a retrial would have been ordered-whether a retrial would prejudice the appellant. 

The appellant brought an appeal against a sentence of fourteen years imposed by a 

magistrate’s court on a charge of rape contrary to section 3(1) and (3) of the Sexual 

Offences Act (Act no. 3 of 2006). He had also been charged with one count of robbery 

with violence contrary to Section 296 (2) of the Penal Code (Cap 63) and an alternative 

charge of indecent act contrary to section 11(1) of the Sexual Offences Act. On the 

additional counts, the trial court acquitted him and made no finding on them. 

The appeal was based on the grounds that the appellant had been held in custody for 

a period in excess of the 24 hours permitted by the Constitution, that he might have 

been a victim of mistaken identity, the evidence led against him was inconsistent and 

contradictory and finally that his defence was not given due consideration. It was the 

State Counsel’s opinion that there had been sufficient evidence to support the charge 

and that the prosecution’s evidence was corroborated, consistent and had proved 

beyond reasonable doubt that the complainant was raped by the appellant. 

The determination of the appeal turned on a narrow and technical aspect as to how 

the trial magistrate treated the witnesses who turned up before her to testify. From the record it appeared that all 

the witnesses who testified had not been sworn in, though this point was not raised or canvassed by any party to the 

appeal. The prosecution sought a retrial. 

Held: 

1. It was a mandatory requirement in criminal proceedings and indeed all court proceedings that witnesses be sworn 

and/or affirmed. Only in very rare circumstances was a witness allowed to testify without being sworn and/or affirmed, 

for instance in the case of evidence by a child of tender years. However, such evidence would only be admissible if the 

child had been subjected to voire dire examination by the trial court. 

2. It was very unlikely that a Senior Magistrate would have allowed witnesses to testify without being sworn. However 

being a court of record the superior court would go by the record of the trial. From the record of the trial court, it was 

apparent therefore that all the witnesses testified without being sworn. Any doubts on that score would be resolved 

in favor of the appellant. Unsworn evidence was of very little or no value at all. It could not therefore be said that the 

appellant had not been prejudiced when he was convicted on unsworn evidence. 

3. Ordinarily such a case would have called for a retrial. However a retrial was not to be ordered if it would accord 

the prosecution and indeed the court an opportunity to mend its ways. If a retrial had been ordered, that’s exactly what 

would have happened. A retrial in the circumstances would not have been appropriate. 


Advocate 

Mr. Makura, Senior State Counsel, for the Republic 

78



ISSUES FOR LAW REFORM 

LAW REFORM 

Does violation of constitutional rights amount to an automatic acquittal? 

Republic v Desmond Mukhaya Mulusa [2010] eKLR 


April 20 , 2010 

Fred A. Ochieng J. 



The applicant who had been charged with murder, made a constitutional application to the court with a claim that 

his constitutional rights under sections 70 (a) and 72 (3) (b) and 77 (1) of the Constitution had been violated. In 

particular, the accused asserted that his detention for six months beyond the period of 14 days from the date of his 

arrest, constituted a violation of his constitutional rights. 

The jurisprudence in the interpretation of this issue continues to expand commensurately with the variety of unique 

circumstances on which different cases may be based. The Court of Appeal in Alex Wafula v Republic [2009] eKLR, held 

that each case will stand or fall on its peculiar facts and circumstances. 

Justice Ochieng in this case took the view that the court had an obligation to give effect to the provisions of section 

70 of the Constitution which provided that the rights and freedoms were subject to the rights of others and for public 

interest. Although the accused was entitled to his fundamental rights and freedoms, the enjoyment of the same was 

subject to the respect for the rights and freedoms of others and to public interest. 

According to the judge, public interest required the court to carry out its mandate of dispensing justice, without fear 

or favour. Whilst an accused person is presumed innocent until and unless he is proved guilty, public interest required 

the court to determine whether or not the accused was guilty. That could only be done if the prosecution was given 

the opportunity to lead evidence, during a trial. 

The judge invoked Section 72 (6) which provides that 

“A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that 

other person” 

It was observed that, the failure to bring the appellant to court within the prescribed time only entitled the appellant 

to compensation for breach of his rights as was provided for under section 72 (6) of the Constitution. Section 72 (6) 

of the Constitution was an integral part of the Constitution which expressly provided for a remedy in situations where 

section 72 (3) was said to have been violated. 

The constitutionality of a constitutional clause - Interpretation of the Constitution. 

Jesse Kamau & 25 others v Attorney General [2010] eKLR 

Misc. Civil Application 890 of 2004 


J.G. Nyamu, RVP Wendo & A. Emukule JJJ 

May 24, 2010 

By Nicholas Okemwa 

The suit was filed by twenty four applicants representing various religious leaders and the gist of their case was that 

the inclusion of the Kadhi’s Courts in the Bomas Draft Constitution was unconstitutional. The decision (also reported 

in the ‘Feature Case’ column of this edition) raised a number of significant jurisprudential issues. 

The constitutionality of a constitutional provision and the Kadhi’s Court’s Act section 4 

Perhaps the most significant issue is the question of the constitutionality of an existing constitutional provision. 

This begs the question as to what is the measure of constitutionality. The applicants had argued that Section 66 

of the Constitution of Kenya which introduced and entrenched Kadhis’ Courts in the Constitution infringed on the 

Constitutional rights of the applicants to equal protection of the law embodied in Sections 70, 78, 79, 80 and 82 of the 

Constitution and to that extent was discriminatory, unconstitutional and ought to have been expunged in its entirety 

from the said Constitution. 


79




Counsel for the State argued that there was no constitutional provision that was more superior to another. 

The Court did not agree with the submission by State Counsel. In the Court’s opinion: 

• The rights embodied in the Bill of Rights were inherent or natural rights and they could not be taken away 

by the State. Parliament did not have the power to take away the basic structures of the constitutional 

“sanctum” - the Bill of Rights, the security of tenure of Judges, which is the cornerstone of the rule of 

law, and the democratic provisions of Section IA of the Constitution. 

• The courts have the jurisdiction to declare conflict or inconsistency in the constitutional provisions, 

or to declare whether or not the provisions are in conflict with any values, principles or purposes of a 

democratic constitution such. 

• The High Court did not have jurisdiction to strike out or alter Section 66 of the Constitution or indeed any 

other section even if the section contradicted another section of the same Constitution. The process of 

altering Section 66 of the Constitution or indeed any other provision of the Constitution was the mandate 

of the National Assembly. Ultimately, only the people had the power to enact a new constitution. 

• The entrenchment of Section 66 establishing the Kadhis’ Courts in the Constitution was inconsistent 

with section 65 which grants Parliament power to establish other courts subordinate to the High Court. 

Section 66 was inconsistent with the secular nature of the state as it favoured one religion in preference 

to other faiths. 

• Section 4(2) (b) of the Kadhis’ Courts Act was inconsistent with section 66(4) of the Constitution and 

was therefore void to the extent of the inconsistency. 

Interpretation of the Constitution and the El Mann doctrine 

There are two predominant schools of thought of constitutional interpretation: the broad liberal way and the technical, 

narrow manner commonly referred to as the ‘Elmann doctrine’ after the case of Republic vs. Elmann [1969] E.A. 357. 

Other jurisdictions with much more developed jurisprudence have more schools of constitutional interpretation. Such 

jurisdictions include the USA and Australia which have had constitutions for a long period of time. 

One school of thought consists of Originalists. They are of the opinion that the best way to interpret the Constitution 

is to determine how its framers intended the Constitution to be interpreted. They look at several sources to determine 

this intent, including the contemporary writings of the framers, and the notes from the Constitutional Convention itself. 

The High Court in this case examined the genesis of the Independence Constitution including the treaty between the 

Sultan of Zanzibar and the Kenyan government. 

• The Court looked at the intention of the framers and surmised that their intention was that the Kadhis’ 

courts should only have jurisdiction within the former protectorate. 

• Further, the High Court gave a restatement of the Elmann doctrine. It reiterated that the Elmann doctrine 

has mistakenly been construed to say that the Constitution would be construed like any other ordinary 

statute. It opined that the said decision reiterated two cardinal principles of interpretation: a liberal 

interpretation in certain contexts where the words used are ambiguous and imprecise and where the 

words used are precise and unambiguous, they will be construed in their literal meaning. This approach 

taken by the court may lead constitutional lawyers and scholars to re-examine their interpretation of the 

case of Republic Vs. Elmann. 

Separation of Religion and State 

Finally, the suit raised the issue of separation of religion and State. One of the main contentions by the applicants was 

that the Kadhis’ courts are funded from the State coffers and therefore the State was promoting one religion over the 

others. They also contended that Kenya was a secular State. The court held that: 

• Sections 1 and 1A of the Constitution signified that Kenya was indeed a secular state. Sovereignty encompassed 

the independence of the people of Kenya and a multiparty democratic state encompassed 

the admission of the diversity of social economic and political thought. 

• Sovereignty and multipartyism encompassed the way of life the people of Kenya had adopted and signified 

that Kenya was a secular state. Religion via section 66 had stepped out of its own sphere and encroached 

on that of lawmaking in the sense that it was made to coerce the state into enacting religious principles 

and commandments into law thereby breaching the separation of religion and State. 

80 





Procedure in the discipline, investigation and/or removal of a Judge - Scope of the authority of a 

Tribunal established to investigate the conduct of a Judge under section 62 of the Constitution 

Republic v Chief Justice of Kenya & 6 others ex-Parte Ole Keiwua [2010] eKLR 

High Court of Kenya at Nairobi 

M. Apondi, G. Dulu & M. Warsame JJ 

April 20, 2010 

This judicial opinion in this case (also reported in the ‘Feature Case’ column of this edition), concerned the procedure 

in the discipline, investigation and removal of a Judge from office. The Judicial Review court that was considering an 

application by a suspended Judge of Appeal challenging a Tribunal appointed to investigate his conduct made certain 

pronouncements that shed new light on the administrative actions that should precede the appointment of such a 

Tribunal and the scope of the Tribunal’s mandate. These pronouncements are pertinent to and would inform the 

ongoing debate on the proper procedure in the disciplining and/or removal of judges. 

The High Court held, among other things, that: 

• Under section 61(2) of the Constitution, a Judge is appointed after the President has received the advice 

of the Judicial Service Commission (JSC) that a person is fit and competent to hold the office of a Judge. 

When a question arises as to the removal of a Judge, it is essential to seek and obtain the advice, guidance, 

contribution and direction of the JSC as it was the same body that had given the advice to the President 

that it was okay to employ him in the first instance. Since the Chief Justice as the Chairman of the JSC 

had mandated the Integrity and Anti-Corruption Committee of the Judiciary [the Ringera Committee] 

in 2003 to conduct investigations into the conduct of judicial officers, the JSC ought to have been the 

first branch that ought to have authorized the next step. 

• The role of the JSC would be to determine whether the act complained about is of the nature and degree 

to qualify as misconduct sufficient to set in the processes that may lead to an adverse representation 

being made to the President. Such an examination would include seeing and hearing the complainant 

and the Judge separately for that would serve to inform and enhance a balanced and proper evaluation 

of the circumstances that has arisen which is likely to lead to removal of a Judge. 

• The representation to the President to appoint a Tribunal is such a grave and serious matter with severe 

consequences of likely to remove a Judge from office that it is mandatory for the Judge to be given 

a hearing either by the JSC or by the Chief Justice before the representation is made to the President. 

The Judge ought to be heard by the JSC prior to the commencement of the removal exercise. Though the 

Constitution was silent on this, a presumption arose that the Legislature did not intend to deny natural 

justice to the applicant or to any other Judge. 

• The President has no power to empower a tribunal to conduct an inquiry or investigation other than 

or outside the representation he receives from the Chief Justice. In this case, it was not proper for the 

Tribunal to purport to gather evidence and to engage investigators to sustain what it was calling charges 

against the applicant 


81



LEGISLATIVE UPDATE 

FROM THE LEGISLATION NOTICE BOARD; A SYNOPSIS OF THE WITNESS PROTECTION 

AMENDMENT ACT 2010 

By Ann Asugah, Ag. Assistant Editor and Head of Laws of Kenya Department 

In the quarter ended April to June 2010, five (5) Bills were published for debate in Parliament; 

1. The Wildlife (Conservation and Management) (Amendment) Bill 2010 

2. The Tea (Amendment) Bill 2010 

3. The Finance Bill 2010 

4. The Insurance (Motor Vehicle Third Party Risks) (Amendment) Bill, 2010 

The Bills are at various stages of debate in the August House. 

In the same Quarter, Parliament passed two Acts of Parliament; 

1. The Witness Protection(Amendment) Act published in June 2010 

2. The Supplementary Appropriation Act 2010 

THE WITNESS PROTECTION (AMENDMENT) ACT 2010 

The publication of the much awaited Witness Protection (Amendment) Act 2010 (hereinafter called the Amendment 

Act) heralds a new dawn for Kenya in the protection of citizenry with sensitive information that poses great risk to 

their lives and family. The Act came hot on heels of the International Criminal Court’s verdict authorizing the International 

Criminal Court’s Prosecutor Louis Moreno Ocampo to start investigations into the 2007 post election violence in 

Kenya. The Act was assented to on 12th May 2010 and Commenced on the same day of assent. Witnesses to the 2007 

post election violence have been living in fear of their lives and it’s hoped the implementation of the Act will provide 

protection to them and their families. 

The Amendment Act seeks to amend the Witness Protection Act No. 16 of 2006 which was enacted to provide for the 

protection of witnesses in criminal and other proceedings. The Long title to the Act has now been amended to read: 

“An Act of Parliament to provide for the protection of witnesses in criminal cases and other proceedings to 

establish a Witness Protection Agency and provide for its powers, functions, management and administration, 

and for connected purposes” 

The Amending Act introduces three organs to handle matters related to witness protection. I will seek to analyze the 

organs as established. 

1. The Witness Protection Agency (WPA) 

Section 3A of the Amending Act establishes the WPA as a body corporate with perpetual succession, common seal, 

capable of suing and being sued. The objects and purpose of the agency is stipulated in section 3B and provides; 

3B. (1) The object and purpose of the Agency is to provide the framework and procedures for giving special protection, 

on behalf of the State, to persons in possession of important information and who are facing potential risk or intimidation 

due to their cooperation with prosecution and other law enforcement agencies 

The nature of special protection mentioned in 3B above empowers the Agency to acquire, store, maintain and control 

firearms and ammunition and electronic or other necessary equipment, despite the provisions of any other law. 

2. The Functions of the WPA are listed in S. 3C of the amending Act and include 

• establish and maintain a witness protection programme; 

• determine the criteria for admission to and removal from the witness protection programme; 

• determine the type of protection measures to be applied; 

• advise any Government Ministry, department, agency or any other person on the adoption of strategies 

and measures on witness protection; and 

• perform such other functions as may be necessary for the better carrying out of the purpose of this Act. 

82



LEGISLATIVE UPDATE 

The WPA shall have several powers as stipulated in section 3D of the Amending Act such as; administer funds of the 

Agency, open bank accounts, enter into confidential agreements with relevant foreign authorities relating to relocation 

of protected witnesses, summon a public officer or indeed other persons to appear before it to produce documents 

or information related to the Agency’s functions. The Agency shall be under the leadership of a Director appointed by 

the Board. 

Section 3G of the Amending Act provides for the independence of the Agency by stating that the Agency will operate 

without interference from any authority but will report to the Minister responsible for matters relating to protection 

of witnesses for accountability purposes. (Currently the Minister for Justice and Constitutional Affairs). 

A key feature of the new Amending Act is the Victims Compensation Fund under Section 3I. The Fund shall be used 

for restitution or compensation for the death to a victim, family of a victim of a crime committed by any person during 

a period when such person is provided protection under this Act. 

3. The Witness Protection Advisory Board 

This is unincorporated Board established under s. 3P of the amending Act. The Board is comprised of members such 

as Minister of Justice, Finance, Director of the National Intelligence Service, Commissioner of Police, Commissioner of 

Prisons, Director of Public Prosecutions. The function of the Board is to advise the Agency generally on the exercise of 

its powers and the performance of its functions under the Act and in particular formulate policies relating to witness 

protection, approve budget estimates and have general oversight of the Agency 

4. The Witness Protection Appeals Tribunal (WPAT) 

The WPAT is established by section 3U of the Amending Act and is composed by a Chairperson qualified to be a judge 

or has been a judge appointed by the President on the recommendation of the Attorney General and 2 other members 

appointed by the Minister with expertise on matters likely to come before the Tribunal. 

Pundits argue that the composition of the Board is political and may not augur well for the full protection of the 

witnesses. The Act does not stipulate how information relating to change of identity and relocation is going to be 

preserved or handled or kept confidentially. 

The Witness Protection Act (as amended) is available on our website www.kenyalaw.org. 


83



LEGAL NOTICES AND BILLS 

LEGAL NOTICES AND BILLS 

FROM MARCH 5,2010 TO MAY 21,2010 

Legislative Supplement Nos. 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29 and 30 

Bills 2010 

The Wildlife (Conservation and Management) (Amendment) Bill, 2010 

The Tea (Amendment) Bill, 2010 

The Counter-Trafficking in Persons Bill, 2010 

The Prevention of Organised Crime Bill, 2010 

The Supplementary Appropriation Bill, 2010 

Legal Notice Nos 

21- The land Control Act – Exemption 

22- The Preservation of Public Security Act Declaration. 

23- The Sugar (Imports, Exports and By-Products (Amendment) Regulations, 2010 

24- The Registered Land (Application) No. 2) Order, 2010. 

25- The Animal Diseases Act – Prohibition. 

26 - The Kenya Information and Communications (Dispute Resolution) Regulations, 2010. 

27 - The Kenya Information and Communications (Tarriff0 Regulations, 2010. 

28 - The Kenya Information and Communications (Compliance Monitoring, Inspections and Enforcement) Regulations, 

2010. 

29- The Kenya Information and Communications (Fair Competition and Equality of Treatment) Regulations, 2010. 

30 - The Kenya Information and Communications (Interconnection and Provision of Fixed Links, Access and Facilities) 

Regulations, 2010. 

31- The land Acquisition (Compensation Tribunal) Rules, 2010. 

32- The Registered Land (Application) (No. 3) Order, 2010. 

32- The Registered Land (Application) (No. 4) Order, 2010. 

33- The Immigration Act – Exemption. 

35- The Interim Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules, 2010. 

36- The Persons with Disabilities (Income Tax Deductions and Exemptions) Order, 2010. 

37- The National Museums and heritage Act confirmation of Sites and Monuments. 

38- The Certified Public Secretaries (Application of Practicing Certificates) Forms and Fees) (Amendments) (No. 2) 

Regulations, 2009. 

39- The certified Public Secretaries (Application for Registration) Forms and Fees) (Amendment) (No. 2) Regulations, 

2009. 

40- The Traffic Act – Exemption. 

46-67- The Income Tax Act – Exemptions. 

48 -The Arbitration (Amendment) Act-Commencement. 

49-51 - The National Hospital Insurance Fund Act – Declaration of Hospitals, etc 

52 - The Interim Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules, 2010. 

53 - The Local Authorities Transfer Fund (Amendment) Regulations, 2010. 

54- 58 The Kenya Information and Communications (Consumer Protection) Regulations, 2010, etc 

59 - The Export Processing Zones Act Declaration of an Export Processing Zone. 

60 - The Immigration Act – Exemption. 

61-The Non-Governmental Organizations Co-ordination (Amendment) Regulations, 2010. 

62-The Immigration Act – Exemption. 

63-The Traffic Act – Exemption. 

64- The Public Officer Ethics (Amendment) Regulations,2010. 

65 – The Hides, Skin and Leather Trade (Leather Development Council) Rules, 2010. 

66- The Constitution of Kenya Review (Referendum) Regulations, 2010. 

67- The National Assembly and Presidential Elections Act- Extension of Period for the Issue of Writs-Juja 

Constituency. 

The National Assembly and Presidential Elections Act – Extension of Period for the Issue of Writs – Matuga 

Constituency. 

84 


THE NATIONAL COUNCIL FOR LAW REPORTING 

MILIMANI COMMERCIAL COURTS, GROUND FLOOR 

P.O. BOX 10443 – 00100 

NAIROBI – KENYA 

TEL: (+254 020) 2712767, 2719231 

FAX: (+254 020) 2712694 


PRODUCT CATALOGUE AND PRICE LIST 

Product Status Costs 

1 Kenya Law Reports 1976-1980 Available 6,000/= 

2 Kenya Law Reports 1981 Out of stock 





7 Kenya Law Reports 1986 Available 3,000/= 





12 Kenya Law Reports 1991 Available 3,000/= 



15 Kenya Law Reports 2002 Vol. 1 Available 3,000/= 







22 Kenya Law Review 2007 Vol. 1 Available 3,000/= 

23 Laws of Kenya Grey Book Available 7,200/= 

24 KLR Laws of Kenya Grey Book CD ROM Available 1,500/= 

25 Kenya Law Reports (Family & Gender) Available 4,500/= 

26 Kenya Law Reports (Environment & Land) Vol. 1 Available 3,000/= 

27 

Kenya Law Reports Consolidated Tables and 

Digest [1976-1986] 

Available 3,000/= 

28 Kenya Law Reports Weekly e-Newsletter Available Free by email subscription 

29 www.kenyalaw.org 

Always 

available 

Free

THE NATIONAL COUNCIL FOR LAW REPORTING 

THE LAWS OF KENYA GREY BOOK 

IN LOOSE LEAF AND ON CD-ROM 

ACTS CONTAINED IN THE GREY BOOK 

The Appellate Jurisdiction Act (Cap. 9) 

The Children’s Act (No. 8 of 2001) 

The Civil Procedure Act (Cap. 21) 

The Constitution of Kenya 

The Criminal Procedure Code (Cap. 75) 

The Evidence Act (Cap. 80) 

The Interpretation and General Provisions Act (Cap. 2) 

The Judicature Act (Cap. 8) 

The Limitation of Actions Act (Cap. 22) 

The Magistrates’ Courts Act (Cap. 10) 

The Penal Code (Cap. 63) 

The Sexual Offences Act (No 3 of 2006) 

The Traffic Act (Cap. 403) 

The KLR Laws of Kenya Grey Book is a collection of fully revised and updated selected Acts 

of Parliament governing the substance and procedure in respect to matters commonly 

arising in criminal and civil litigation. The CD ROM version of the Grey Book also 

contains The Proposed Constitution of Kenya, May 6, 2010 Edition and The KLR 

Bench Bulletin, Jan-March, 2010 

The National Council for Law Reporting 

Milimani Commercial Courts Ground Floor, Ngong Road 

Tel: (+254) (020) 271 27 67, 271 92 31 

Fax: (+254) (020) 2712694, NAIROBI-KENYA 


Email: info@kenyalaw.org 

Facebook: Kenya Law Reports 

www.youtube.com/kenyalawreports

Bench Bulletin - Issue 12 - Kenya Law Reports

Create successful ePaper yourself

Delete template?

Save as template?