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The Bench Bulletin

A publication of The National Council for Law Reporting


The Bench Bulletin is the denitive intelligence brieng for Kenyas judicial ofcers, 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 Ofce Environment

NCLR Strategic Planning Retreat

Judicial Opinions

Legislative Update

Issues For Law Reform From The Bench

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

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KENYA LAW REPORTS

BENCH BULLETIN

The Hon. Mr. Justice J. E. Gicheru, EGH, Chief Justice of Kenya, Chairman

1. The Council Members........................ 1 2. The Inbox................................................. 2 3. Cases Reported...................................... 3 4. Digest of Cases Featured................... 4 5. Ag. Editors 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

Table of Contents

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 Otengo Ombwayo Attorney-Generals Representative Mr. Zablon M. O. Kona Government Printers 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

EDITORIAL ASSISTANT Esther Nyaiyaki CONTRIBUTORS Michael Murungi Esther Nyaiyaki Ann Asugah Monica Achode Nicholas Okemwa Cornelius Lupao Andrew Halonyere Njeri Githanga Kamau Nelson Tunoi DESIGN AND LAYOUT
Catherine Moni Andare Geoffrey

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

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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.

Issue 12: April-June 2010

KENYA LAW REPORTS THE INBOX

BENCH BULLETIN

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 dont 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 CDRom 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

KENYA LAW REPORTS CASES REPORTED COURT OF APPEAL

BENCH BULLETIN

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

KENYA LAW REPORTS DIGEST OF CASES FEATURED


CHARGE

BENCH BULLETIN

COURT OF APPEAL

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 Ofcial 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 appellants 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 respondents name-equity of redemption-whether the appellants equity of redemption was extinguished
Marco Munuve Kieti v Ofcial Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 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 respondents name-whether the second was entitled to the rent for the period of occupation
Marco Munuve Kieti v Ofcial Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42

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 Courts ruling notice of appeal relating to the main judgment and not the High Courts ruling - whether applicant could rely on the overriding objective provisions having disobeyed the High Courts 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

Issue 12: April-June 2010

KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

Constitutional right - allegation of violation of constitutional right-alleged violation being pleaded as an afterthought - effect of.
Dennis Muthee Chokera v Republic ................................................................................................................................................. 35

CONSTITUTIONAL LAW

Constitutional right violation of appellants 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 appellants 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)
David Njuguna Wairimu v David Njuguna Wairimu ..................................................................................................................... 37

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

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 appellants 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 appellants acquittal on the count of defilement was reversed to a conviction-whether the superior court had jurisdiction to reverse the trial courts 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

Issue 12: April-June 2010

KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

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 courts 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 courtCriminal Procedure Code (Cap 75) section 361
Chris Kasamba Karani v Republic ................................................................................................................................................... 46

Trial process - judgment and sentencing-trial court required to receive mitigating circumstances after finding the appellant guilty before proceeding to pronounce sentence- mitigating circumstances on record would be of importance when assessing an appropriate sentence on appeal
Chris Kasamba Karani v Republic ................................................................................................................................................... 46 ELECTION LAW

Conduct of elections non-compliance with the law the scope of section 28 of the National Assembly and Presidential Elections Act - section 28 of the National Assembly and Presidential Elections Act providing that irregularities in the conduct of an election will not vitiate the result unless the irregularities were so serious that the election was not in accordance with principles laid in the law or the irregularities affected the result- appellant asking the court to invoke section 28 on grounds that the acts alleged against the electoral body that conducted the elections did not affect the overall results of the elections whether the anomalies found in Forms 16A and17A were so pervasive as to affect the entire election - whether these anomalies could be cured by section 28 of the National Assembly and Presidential Elections Act whether election was conducted in accordance with principles laid down by the electoral law
James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49

Election petition appeal against High Court judgment the High Court having nullified the election of the appellant as the Member of Parliament for the South Mugirango constituency on grounds that the election was not transparent, free and fair the appellant having garnered the highest number of votes during the scrutiny and recount of votes failure by the court to find the appellant guilty of an electoral offence - scrutiny and recount of the votes disclosed numerous irregularities among them unsigned unauthenticated Forms 16A, variation between Forms 16A and 17A, missing ballot boxes, broken ballot seals - the significance of Forms 16A the effect of the failure by the presiding officer to sign or stamp Forms 16A without reasonable cause - Regulations 35A (5), 39, 40 (1) of the Presidential and Parliamentary Regulations
James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49

Interpretation of statute - interpretation of electoral laws and regulations the interpretation of electoral laws is aimed at conducting free and fair elections circumstances when an election can be declared void - test to be applied by the court in determining validity of an election - meaning of free and fair elections meaning of transparent elections duty of the electoral body to promote free and fair election - Section 17A of the National Assembly and Presidential Elections Act - section 42A (c) of the Constitution
James Omingo Magara v Manson Onyongo Nyamweya & 2 others ............................................................................................. 49

Service mode of service of an election petition appeal appeal against ruling by the High Court dismissing election petition on the ground that the petitioner had invoked the alternative mode of service under Section 20(1) (a) (iv) of the National Assembly and Presidential Elections Act without exercising first due diligence to serve the respondent personally alternative mode of service having been effected within six days of filing the election petition - affidavit of service High Court struck out the affidavit of service for having not been filed on time - whether an affidavit of service in an election must be filed in a prescribed manner affidavit of service was filed after leave was granted by the court to file further affidavits to examine whether the 1st respondent had been served in accordance with the Act - whether the affidavit of service was erroneously struck out - Section 20 (1) (c) (iv) of the National Assembly and Presidential Elections Act
Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others ....................................................................................... 48

Issue 12: April-June 2010

KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

Service mode service of an election petition - affidavit of service - whether the appellants 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 - appellants 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 appellants employment lawful and on disciplinary grounds claims over rebate tickets respondent having argued that the rebate tickets were concessionary and only a privilege to staff claims that they could be changed or withdrawn or augmented by the respondent as deemed fit circumstances under which the appellate court would find differently from a superior court whether the appellant had an litigable entitlement to the tickets
Jimi Masege v Kenya Airways Limited ............................................................................................................................................ 41 EVIDENCE

Corroboration - where corroborative evidence showed that the complainant was defiled despite the fact that the alleged perpetrator was not clinically examined-whether a conviction can solely be based on the corroborative evidence despite lack of clinical tests on the alleged perpetrator.
Dennis Muthee Chokera v Republic ................................................................................................................................................. 38

Identification evidence - principles that the court had to take into when dealing with evidence of identification where the accused claimed it was mistaken identity- appellant caught red handed-whether there was proper identification.
Chris Kasamba Karani v Republic ................................................................................................................................................... 46

Identification - accused seen and identified by witnesses in broad daylight-conviction based on such identification-whether such conviction is safe.
Jackson Kyalo Munge v Republic ..................................................................................................................................................... 42 LAND LAW - statutory notice - service of notice-statutory power of sale-provisions of the Registered Lands Act with regard

to statutory power of sale-whether the statutory notices were valid-where first respondents statutory power of sale had accrued-Registered Land Act (cap 300) sections 65 (2), 74 (1) (a), 77 (4)
Marco Munuve Kieti v Ofcial Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42

PROBATE AND ADMINISTRATION - letters of administration - appeal - interpretation of statute interpretation of section 3(5) of the Law of Succession Act - appeal from High Court judgment granting the respondent letters of administration appellant arguing that a customary law marriage could not presumed where all the customary requirements had not been fulfilled whether a marriage between the respondent and the deceased could be presumed under section 3(5) of the Law of Succession Act Marriage presumption of marriage - rationale and genesis of the concept of presumption of marriage - circumstances in which a presumption of marriage is deemed to arise respondent having cohabited with the deceased for over fifteen years and had three children evidence supporting that the deceased supported the respondent financially lack of evidence that dowry was paid under the Kikuyu customs of marriage whether a marriage could be presumed under such circumstances
Mary Wanjiru Githatu v Esther Wanjiru Kiarie Civil Appeal 20 of 2009 ................................................................................... 50

Issue 12: April-June 2010

KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

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 Magistrates court superior court subsequently setting aside the trial courts 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 fathers 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 appellants 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

Issue 12: April-June 2010

KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

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

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

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

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

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 victims body as the family could not be traced to identify the body- victims 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

Issue 12: April-June 2010

KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

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

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

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

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 appellants 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 criminalmob justice-necessary ingredients in proving common intent and motive-court position where evidence establishes that the accused persons 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
Republic v Desmond Mukhaya Mulusa [2010] eKLR .................................................................................................................... 61

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 courts 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

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Issue 12: April-June 2010

KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

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

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 prosecutions evidence
Republic v Peterson Karani Njogu ................................................................................................................................................... 73

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 defendants (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 Assembly and the Presidential Elections Act (Cap 7)
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63

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

Issue 12: April-June 2010

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KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

Election petitions -jurisdiction-High courts 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 44National Assembly and the Presidential Elections Act(Cap 7) Section 19
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63

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

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

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

Electoral malpractice ballot boxes -ballot boxes received at tallying centre with seals broken boxes carried by unknown persons - petitioners 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.
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR......................................................................... 58

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

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Issue 12: April-June 2010

KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

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

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

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
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 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 voters 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.
William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63 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. Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR......................................................................... 58

Documentary evidence P 3 form courts 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 respondents trade name SYNERCEF appellants 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 Certied 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
Republic v Institute of Certied Public Secretaries of Kenya Ex Parte, Mundia Njeru Geteria ................................................ 72

Issue 12: April-June 2010

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KENYA LAW REPORTS DIGEST OF CASES FEATURED

BENCH BULLETIN

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 Certied 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 appellants land and issuance of land title deeds to the respondent whether the Tribunal had jurisdiction to interfere with the appellants 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 its 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 applicants documents pending the compilation of a fresh register of voters -whether the Registrar had acted illegally in declining to register the applicants 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--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 initioCertified Pubic Secretaries of Kenya Act (Cap 534) sections 7, 9 and 37
Republic v Institute of Certied Public Secretaries of Kenya Ex Parte, Mundia Njeru Geteria ................................................ 72

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

Subsidiary legislation procedure in promulgating subsidiary legislationgazettement- 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
Republic v Institute of Certied Public Secretaries of Kenya Ex Parte, Mundia Njeru Geteria ................................................ 72

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Issue 12: April-June 2010

KENYA LAW REPORTS AG. EDITORS NOTE

BENCH BULLETIN

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 Councils 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 Michael M. Murungi the High Court of Kenya over every calendar month. KLR Monthly marks a shift in the Ag. Editor/C.E.O. Councils law reporting calendar from yearly to monthly publication and will serve as 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

Issue 12: April-June 2010

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KENYA LAW REPORTS FAREWELL LUNCHEON

BENCH BULLETIN

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. Sholleis 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. Sholleis 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: She nurtured the Councils Secretariat into a well-established and well-resourced institution, with a strong brand, a highly qualified team

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 Yorks 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 Councils 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 Councils 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 Gods blessings in all your future endeavours.

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Issue 12: April-June 2010

KENYA LAW REPORTS DEPARTMENTAL REPORTS

BENCH BULLETIN

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 Councils 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 Councils 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 Councils Collection Agents who are based at major court stations would then deliver the storage disks physically or email the opinions from a cybercaf 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 cybercafs 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 Agents 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 Councils headquarters as part of a workflow process that culminates in the publication of the judicial opinion on the Councils website (www. kenyalaw.org).

Mr. Michael Mayaka (centre), the Councils Web & Systems Developer, presides over a practical training session for members of staff on the use of the new Enterprise, Alfresco Content Management System.

Issue 12: April-June 2010

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KENYA LAW REPORTS DEPARTMENTAL REPORTS

BENCH BULLETIN

The system creates a virtual workplace for the Councils 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 Councils website front end, it will considerably reduce the lead time between the delivery of an opinion and its publication on the internet. Enterprise Document Management implementing a paperless office environment

The perfect paperless office: A screenshot of the Alfresco DMS showing the virtual workspaces for the Councils 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

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.

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NCLR has deployed the worlds 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.

Service Desk

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 systems 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.

Workflow management

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.

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HUMAN RESOURSE DEPARTMENT New Offices


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 Councils 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.

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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 industrys best practices define our competitiveness with one great score Just recently, May 24 and 25th 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 1st 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.

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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 Straffs Strategic Planning Retreat

Racheal R h l Mwaura M 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 organizations 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 organizations employees, who are in fact an important constituency among an organizations stakeholders. For a long time, the National Council for Law Reportings 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 Councils 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 Councils 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 Councils 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 Councils staff who made key contributions on the vision, mission, values, mandate, functions and strategic activities for Council. The retreats deliberations were informed by Vision 2030, the Judiciarys 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 Councils mission but also the Judiciarys vision as well as Vision 2030.

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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 Councils 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 Councils Board.

One of the sessions during the Council Straffs Strategic Planning Retreat

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TALENT BEYOND LAW REPORTING; NCLRS PARTICIPATION AT THE UWAZI FOOTBALL TOURNAMENT.
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.

NCLR Senior Law Reporter and Football Team Coach, Cornelius W. Lupao, gives team members dribbling tips.

Buoyed by an ecstatic cheering squad, the Councils team soldiered on with determination to lift the trophy until it was narrowly bundled out of the tournament at the semi-finals. The Councils 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 Reportings football Team (NCLR) with its CEO, Mr. Michael Murungi (blowing Vuvuzella) pose for a group photo before the begining of Uwazi Football Tournament

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The Council looks forward to the up-coming Chief Justices Cup where it will, once again, put on display the staff members talent beyond Law Reporting. By Cornelius W. Lupao, Senior Law Reporter

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 Councils 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.

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LAWS OF KENYA DEPARTMENT REPORT Mrs. Ann Asugah, Ag. Asst. Editor COMMITTEE ON DELEGATED LEGISLATION WORKPLAN AND STRATEGIC PLANNING WORKSHOP, MOMBASA , 4th-7th 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 4th-7th 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 Generals 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.

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GREY BOOK ADVERT

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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 SecretaryGeneral to publish a juridical yearbook, which would include Mr. Nicholas Okemwa, Snr. Law Reporter, certain documentary materials of a legal character concerning Head of R & D Department 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 Childrens 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.

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KENYA LAW REPORTS FEATURE CASE The Constitutionality of the Kadhis 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

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

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Findings

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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 Kenyas. 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 applicants 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 Kadhis 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.

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Final Orders/Declarations:

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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 courts 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 Kadhis 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 judges 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 Presidents immunity from suit whether the immunity was absolute distinction between the Presidents 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 Justices 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.

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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 Committees 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 thereonIn 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 Tribunals 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 1st-6th 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 applicants 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.

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3. Moreover, nothing could take away the courts 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. Kenyas 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.

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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 Tribunals 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.

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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

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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 courts evidence. Constitutional Law - constitutional right-allegation of violation of constitutional right-alleged violation being pleaded as an afterthought - effect of. This was a second appeal against conviction and sentence for the offence of defilement of a girl under the age of 16. The appellants 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.

The Hon. Mr. Justice S. E. O. Bosire

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 complaints story. It did not stand alone; it was reinforced by the direct evidence of the complainant.

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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 appellants 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) 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 fathers 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 Hon. Mr. Justice P. K. Tunoi

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 deceaseds 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 fathers 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.

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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 deceaseds 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 deceaseds 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

Appellants 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 Constitutional Law constitutional right violation of appellants 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 appellants 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 The Hon. Mr. Justice made it duplicitous charge failing to include the words dangerous and offensive to describe D. K. S. Aganyanya 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 appellants 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.

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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. Appeal dismissed. 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 Reported by Monica Achode 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) 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

The Hon. Mr. Justice R.S.C. Omolo

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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. Oiras 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) Court of Appeal at Nairobi S. E. O. Bosire, E. M. Githinji & J. G. Nyamu, JJ.A. June 11, 2010 Reported by Nelson Tunoi 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 Hon. Mr. Justice 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,

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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 respondents 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 courts 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 respondents 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.

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Termination of Employment Jimi Masege v Kenya Airways Limited Civil Application 63 of 2003 Court of Appeal at Nairobi Omolo, Waki & Onyango Otieno, JJ.A June 11, 2010

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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 Employment termination of appeal against a decision finding the termination of appellants 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 appellants 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 respondents 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 appellants 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 plaintiffs feelings not only from the prominence itself but from the defendants 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 plaintiffs 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.
The Hon. Mr. Justice W. Onyango Otieno

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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.

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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 appellants 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. Appeal dismissed. 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 Reported by Nelson Tunoi 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 appellants 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 respondents name-equity of redemption-whether the appellants 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 respondents 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

The Hon. Mr. Justice W. Onyango Otieno

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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 respondents 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 appellants property (Number Nairobi/Block 74/91), while the second advance of Kshs. 60,000/= was secured through a chattels mortgage of the appellants 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 appellants 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 Courts 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 appellants equity of redemption had long been extinguished. 5. Although the appellants 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.

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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 Reported by Monica Achode

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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 Hon. Mr. Justice The appellant was convicted in the trial court for the offence of murder contrary to section A. Visram 203 as read with section 204 of the Penal Code and sentenced to death. It was against this 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 prosecutions evidence. It was therefore the appellants 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 deceaseds 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.

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Superior Courts jurisdiction to Reverse Trial Courts Finding Kenneth Kiplangat Rono v Republic Criminal Appeal No. 66 of 2009 Court of Appeal, at Nakuru May 28, 2010 E O Okubasu, P N Waki & D K S Aganyanya JJ A Reported by Nelson Tunoi

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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 appellants acquittal on the count of defilement was reversed to a conviction-whether the superior court had jurisdiction to reverse the trial courts 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. OKubasu 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 appellants acquittal on the count of defilement and the superior court had no jurisdiction to reverse the trial courts 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.

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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 Githanga

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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) 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 The Hon. Mr. Justice an appropriate sentence on appeal P. K. Tunoi 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 courts 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

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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 appellants 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 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 appellants 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 The Hon. Mr. Justice Constitutional Law - fundamental rights - rights of an accused person - right to a fair trial D. K. S. Aganyanya 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.

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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 appellants constitutional rights were not therefore violated. Appeal dismissed.

Mode of Service of an Election Petition


Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others Court of Appeal at Nairobi Tunoi, Githinji & Waki JJ.A Civil Appeal 183 of 2008 May 7, 2010 Reported by Esther Nyaiyaki Onchana 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) 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 The Hon. Mr. Justice appellants affidavit of service dismissed by the High Court would have discharged the onus of P. K. Tunoi 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 petitioners 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 petitioners 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 servers affidavit of service held together the appellants 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.

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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 Civil Appeal 8 of 2010 April 30, 2010 Reported by Esther Nyaiyaki Onchana 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 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, The Hon. Mr. Justice broken ballot seals - the significance of Forms 16A the effect of the failure by the presiding R.S.C. Omolo 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.

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The appellants 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 Civil Appeal 20 of 2009 April 23, 2010 Reported by Esther Nyaiyaki Onchana 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

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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. The appellants 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 appellants 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 respondents 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 objectors 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. Appeal dismissed. Advocates 1. Mr. Gicheru for the Appellant 2. Mr. Machio for the Respondent

The Hon. Mr. Justice S. E. O. Bosire

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KENYA LAW REPORTS FROM THE COURTS COURT OF APPEAL 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

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Reported by Esther Nyaiyaki Onchana 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 appellants first conviction. In a second and final appeal the appellants 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.

The Hon. Mr. Justice 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

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Manufacturers Duty of Care to Consumers Kenya Breweries Ltd v Godfrey Odoyo Court of Appeal at Nairobi Civil Appeal 127 of 2007 Bosire, Onyango Otieno & Nyamu JJ.A April 16, 2010 By Esther Nyaiyaki Onchana

BENCH BULLETIN

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 Magistrates 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.
The Hon. Mr. Justice W. Onyango Otieno

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 courts 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 courts finding on liability, in particular that the appellants injuries, if any, were caused by beer manufactured by the appellant. In addition the appellant faulted the superior courts 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 appellants 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.

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The respondents 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 appellants 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 appellants 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. Appeal dismissed. Advocates 1. Mr. Lutta for the Appellant 2. Mr. Ochieng Ogutu for the Respondent

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KENYA LAW REPORTS FROM THE COURTS COURT OF APPEAL Trafficking in Narcotic Drugs
Kingsley Chukwu v Republic Court of Appeal at Nairobi J. W. Onyango Otieno, D. K. S. Aganyanya & Alnashir Visram Criminal Appeal 257 of 2007 April 16, 2010 Reported by Esther Nyaiyaki Onchana

BENCH BULLETIN

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 Magistrates court superior court subsequently setting aside the trial courts 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 appellants 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 Court of Appeal at Nairobi 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)

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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 Courts ruling notice of appeal relating to the main judgment and not the High Courts ruling - whether applicant could rely on the overriding objective provisions having disobeyed the High Courts 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 applicants and respondents 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 courts ruling which had ordered the applicant to deposit security. The Court of Appeal considered whether non-compliance with that High Court The Hon. Mr. Justice ruling had a bearing on the provisions of sections 3A and 3B of the Appellate Jurisdiction Act. E. M. Githinji The appellate court chose the call the overriding objection in civil litigation provided under 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 applicants 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. Application dismissed.

Service in an Election Petition


Dickson Daniel Karaba v John Ngata Kariuki & 2 others Court of Appeal at Nairobi Tunoi, Waki & Aganyanya JJ A March 19, 2010 Reported by Esther Nyaiyaki Onchana 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 - appellants 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

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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.

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 servers 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 servers 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 respondents offices and served him in the manner he stated he did was believable. Appeal allowed. Advocates 1. Mr. Wamae for the Appellant 2. Mr. Mari for the 1st Respondent 3. Mr. Arusei for the 2nd Respondent

The Hon. Mr. Justice P. N. Waki

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KENYA LAW REPORTS 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) Reported by Njeri Githanga

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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 Assembly and the Presidential Elections Act (Cap 7) 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 The Hon. Lady Justice KH Rawal serve impartially and independently in performance of their duties where it is alleged that the Commission had been pressured by first respondents 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 - petitioners 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 ECKs 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.

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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.

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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 Criminal Appeal 187 of 2008 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 courts 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 courts 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 Magistrates 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

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the magistrates 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 appellants 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 persons 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 accuseds 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

Rights of an Accused Person to be Brought to Court within 14 Days of Arrest


Republic v Desmond Mukhaya Mulusa [2010] eKLR Criminal Case 86 of 2007 April 20, 2010 Judge: Fred A. Ochieng J. High Court at Nairobi Reported by Njeri Githanga Constitutional Law- fundamental rights and freedoms- rights of an accused person- right to be brought to court within 14 days after arrest- applicant 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 victims body as the family could not be traced to identify the body- victims 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 The Hon. Justice Fred A. breach of the constitutional rights of the accused the court had to apply the provisions of Ochieng 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).

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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 victims 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 victims 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 deceaseds 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

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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. Application dismissed.

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) Reported by Njeri Githanga 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 Assembly and the Presidential Elections Act (Cap 7) Election law-election petitions-jurisdiction-High courts 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 petitions- an 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 Hon. Justice the matter-Constitution of Kenya Section 44- National Assembly and the Presidential Elections L. Kimaru Act(Cap 7) Section 19 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 17AForm 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

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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 voters 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 ECKs 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 petitioners 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 Petitioners 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 respondents failure to procure the petitioners 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.

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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 respondents 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 ECKs 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 ECKs 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

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KENYA LAW REPORTS FROM THE COURTS HIGH COURT 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 Reported by Andrew Halonyere

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Customary law burial dispute deceased wish to be interred/buried in her piece of land defendants (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 deceaseds father-in-law, that he was entitled under Luo customary law to bury the remains of the deceased. The plaintiffs 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 defendants 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. Kopot and Mr. A. Oyuko for the plaintiffs Mr. C. Ayayo for defendant.

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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. High Court at Nairobi (Nairobi Law Courts) Reported by Njeri Githanga 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 explanationalleged 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 The Hon. Lady Justice H. M. Okwengu no limitation under the Constitution 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 determinationwhere 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 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 Magistrates 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.
Nyayo House in Nairobi, (now the headquarters of the Immigration Department) where the petitioner said he had been incarcerated and tortured.

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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 magistrates 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 partys 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 petitioners 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 petitioners claim regarding the infringement of his rights under the Constitution. 4. Although the issue of the contravention of the petitioners 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 petitioners 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 Magistrates 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 petitioners house was related to the criminal charge with which the petitioner was subsequently arraigned in court. The petitioners 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 magistrates decision by appealing from that decision instead of challenging the constitutionality of the proceedings.

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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 petitioners 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 petitioners constitutional rights to personal liberty under Section 72 of the Constitution were violated and the petitioners rights to protection against torture, degrading and inhuman treatment under Section 74 of the Constitution were also violated and hence an award of damages was appropriate. 14. The petitioner had not specifically pleaded or proved any special damages and in light of the acknowledged change in the government, and the attempts at dealing with human rights violation, it was inappropriate to award exemplary or aggravated damages. Petitioner awarded the sum of Kshs.2.5 million as general damages

Application for an Order of Stay of Proceedings


Piedmont Investment Limited v Standard Assurance Limited & 2 Others Civil case no 806 of 2003 High Court at Nairobi Kimaru. J March 25,2010 Reported by Andrew Halonyere Civil practice and procedure stay of proceedings application for an order of stay of proceedings application filed by former directors of the first defendant under statutory management failure by the former directors of the first defendant to disclose to the Court of Appeal the status of the first defendant- where the High Court had issued a restraining order against the defendants from interfering with the suit property - whether the Court of Appeal in granting an order of stay of proceedings in the High Court meant staying the restraining order issued by the High Court whether the former directors of the first defendant had the legal capacity to appear before the Court of Appeal- whether the High Courts 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 its 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 courts 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.

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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 Defendants 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. High Court at Nairobi (Nairobi Law Courts) Reported by Njeri Githanga 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 The Hon. Lady Justice done away with and IIEC mandated to compile a new register-requirement for registration of RPV. Wendoh parties- Registrar declining to accept the applicants documents pending the compilation of a fresh register of voters -whether the Registrar had acted illegally in declining to register the applicants 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 partys constitution as required by section 9 of the Act within 3 months. He duly complied and amended the partys 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.

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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 partys 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 applicants 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 Registrars 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. Application dismissed. 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 Reported by Andrew Halonyere Land law jurisdiction of the Provincial Land Disputes Committee where the Provincial Land Disputes Tribunal directed the sub-division of the appellants land and issuance of land title deeds to the respondent whether the Tribunal had jurisdiction to interfere with the appellants 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 appellants 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.

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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 Tribunals 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 appellants 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. Appeal allowed. 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. High Court at Nairobi (Nairobi Law Courts) Reported by Njeri Githanga 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 reprobationrelevance 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--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 initioCertified Pubic Secretaries of Kenya Act (Cap 534) sections 7, 9 and 37, Statutessubsidiary legislationprocedure in promulgating subsidiary legislationgazettement- 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 17th 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 17th 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

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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 ICPSKs 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 Criminal Case 40 of 2008 M.S.A. Makhandia February 5th 2010 Court Station: Nyeri Reported by Monica Achode 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

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establishes that the accused persons 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 prosecutions 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 deceaseds 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 deceaseds 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 persons 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 persons 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

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KENYA LAW REPORTS FROM THE COURTS HIGH COURT Infringement of Trademark Rights
Glaxo Group Limited v Syner-med Pharmaceuticals Ltd Miscellaneous Application 792 of 2009 High Court at Nairobi L. Kimaru. J February 4, 2010 Reported by Andrew Halonyere.

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Intellectual Property infringement of trademark rights appeal against the decision of the Registrar of Trademarks to register the respondents trade name SYNERCEF appellants 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 appellants trademark ZINACEF. The Registrar of Trademarks, having heard representations made by the appellant and the respondent, dismissed the appellants 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 appellants 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

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KENYA LAW REPORTS FROM THE COURTS HIGH COURT Change of Presiding Officer in the Course of Trial
Joseph Mwangi Esop v Republic Criminal Appeal 107 of 2008 25th January 2010 M.S.A Makhandia, J. High Court at Nyeri Reporter by Monica Achode

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Case History Appeal from the original conviction and sentence of the Senior Resident Magistrates 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 magistrates 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 Civil Appeal 95 of 2002 R. N. Sitati High Court at Nairobi January 22nd, 2010 Reporter by Monica Achode 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.

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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 appellants 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)

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The appellants/plaintiffs brought an appeal against the decision of a magistrates court The Hon. Lady Justice striking out their suit for damages against the respondent/defendant, an airline operator. R. N. Sitati th The appellants commenced the action by filing a plaint on June 14 2001. The claim had arisen out of the respondents refusal to allow the appellants access onto a connecting flight in Abu Dhabi on or about December 20th 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 defendants 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 14th 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 carriers 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. Appeal dismissed. Advocates: M/s Nyakianga for the Plaintiff/Applicant Mr. Wasonga for the Defendant/Respondent

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KENYA LAW REPORTS FROM THE COURTS HIGH COURT Procedure in taking witness testimony in court
Charles Wanjohi Murage v Republic Criminal Appeal 80 of 2007 M. S. A. Makhandia High Court at Nyeri November 25th, 2009 Reporter by Monica Achode

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Case History Appeal from the original conviction and sentence of the Chief Magistrates 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 magistrates 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 Counsels opinion that there had been sufficient evidence to support the charge and that the prosecutions 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, thats exactly what would have happened. A retrial in the circumstances would not have been appropriate. Appeal allowed. Advocate Mr. Makura, Senior State Counsel, for the Republic

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Does violation of constitutional rights amount to an automatic acquittal?


Republic v Desmond Mukhaya Mulusa [2010] eKLR Criminal Case 86 of 2007 April 20 , 2010 Fred A. Ochieng J. High Court at Nairobi Reported by Njeri Githanga 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 High Court at Nairobi 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 Kadhis 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 Kadhis Courts 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.

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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 Courts 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.

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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 Tribunals 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

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KENYA LAW REPORTS LEGISLATIVE UPDATE

BENCH BULLETIN

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 Courts verdict authorizing the International Criminal Courts 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 its 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.

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KENYA LAW REPORTS LEGISLATIVE UPDATE

BENCH BULLETIN

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 Agencys 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.

Issue 12: April-June 2010

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KENYA LAW REPORTS LEGAL NOTICES AND BILLS


LEGAL NOTICES AND BILLS FROM MARCH 5,2010 TO MAY 21,2010

BENCH BULLETIN

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.

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Issue 12: April-June 2010

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