INDEX NUMBER: 2045122

MARTIN KPEBU V ATTORNEY-GENERAL WRIT NO.

J1/7/20151STDECEMBER 2015
CASE BRIEF
FACTS: A writ was filed by the plaintiff, a private legal practitioner in pursuant of articles 2(1)
and 130 of the constitution seeking a declaration that section 104(4) of the Criminal and other
Offences Act, 1960 (Act 30) was inconsistent with articles 19(11) and 14 of the
constitution,1992. The plaintiff in his argument stated that failure to fulfill recognizance gave
rise to a civil debt, therefore it was not a criminal cause or matter. He further added that although
article 14(1)(b) of the 1992 constitution allows for the imprisonment of persons found to be
guilty of contempt of court and failure of a person to fulfill amounts to such, it would be
troubling if that contempt was based on the failure to pay judgment. The defendant in also
contended that failure to pay this debt amounts to willful default and deliberate disobedience of
the court. Therefore, section 104(4) takes it power from article 14(1)(b). The defendant further
stated that section 104 reveals that the imprisonment of a person is not based on the failure to pay
money but the surety’s failure to produce the principal party. Thus, the defendants concluded that
section 104 is not inconsistent with articles 14 and 19(11) since it is in consonance with article
14(1)(b) of the constitution.

ISSUE: Whether or not section 104(4) of the Criminal and other Offences, 1960 (Act 30) is
inconsistent with articles 14 and 19(11) of the 1992 constitution.

HOLDING: The court held in a unanimous decision that section 104(4) of the Criminal and
Other Offences Acts,1960(Act 30) is inconsistent with articles 14(10 and 19(11) of the
constitution. The reason being that though section 104 (4) prescribes the punishment, the
criminal offence is undefined, as such it is contrary to article 19(11) because the provision of the
constitution frowns on convictions for undefined offences which do not have punishments
prescribed by written laws. Therefore, it was held that section 104(4) of Act 30 is to be struck
down as being inconsistent with article 14(1) and 19(11) of the constitution, 1992. Thus, the
plaintiff’s action succeeded.
MARTIN KPEBU V ATTORNEY GENERAL WRIT NO. J1/13/2015 5TH MAY
2016

FACTS: The plaintiff sought a relief from the Supreme Court for a declaration that section
96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) was in contravention
of articles 15(2) and 19(2) (c) of the 1992 constitution. The plaintiff in his argument made
reference to article 19(2)(c) of the constitution which presumes that a person is innocent until
proven guilty. He further stated that bail was linked to personal liberty which is guaranteed by
article 14 of the constitution. He therefore added that the courts and the police may use their
powers to grant or execute bail to restrict the liberty of a person. He then proceeded to argue that
bail has two purposes, that is, to ensure that the accused makes himself available at the
subsequent proceedings whilst not in custody. The second one is to ensure the safety of the
community pending trial of the accused person. He stated that the second purpose of a bail is
tantamount to punishing the accused person even before trial and it is on this basis that section
96(7) of the Criminal Procedure Act was enacted. Thus, the counsel for the plaintiff stated that
the no-bail provision in section 96(7) of Act 30 has raised constitutional challenges when viewed
against the presumption of innocence until proven guilty or confession of crime. Counsel for the
defendant however submitted that the constitution itself makes it clear that the refusal to grant
bail to an accused person shall not be held to be inconsistent with the constitution if exercised
judiciously. He relied on articles 14(1)(g) and 21(4)(a) and (b) that the declaration sought by the
plaintiff cannot be entertained. The defendant further stated that section 96(7) of Act 30 required
the court to refuse to grant bail in the offences and situations described in the Act. Thus, as long
as section 96(7) of Act 30 and articles 14(1) and 21(4)(a) and (b) allow the detention of persons
during trial, the argument of the plaintiff is untenable.

ISSUES: Whether or not section 96(7) of the Criminal and other Offences Act, 1960 (Act 30)
is in contravention of articles 15(2) and 19(2)(c).

HOLDING: The court held in a majority decision that section 96(7) of Act 30 was inconsistent
with article 19(2)(c) of the constitution. It was further held that the use of the word “shall” in
section 96(7) of Act 30 when looked at contextually is intended to prohibit the grant of bail in the
offences specified under section 96(7). To that extent, section 96(7) of Act 30 conflicts with the
right to personal liberty per article 14(1) and the presumed right of innocence under article 19(2)
(c). Thus it was held that section 96(7) of Act 30 be struck down as unconstitutional.