Bench Bulletin - Issue 11

(A publication of The National Council for Law Reporting)
The Bench Bulletin is the defnitive intelligence briefng

for Kenyas judicial offcers, 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.
The Bench Bulletin
Issue 11: January-March 2010
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Kenya Law RepoRts BENCH BULLETIN
Table of Contents
1. The Council Members.................... 1
2. Digest of Cases Featured................ 2
3. Farewell Message ........................ 15
4. Ag. Editors Note.......................... 16
5. Uganda Benchmarks KLR............ 17
6. Departmental Reports ................... 19
7. Legality of Electronic Document... 26
8. Court of Appeal Cases................... 29
9. At the Hague ................................. 72
10. High Court Cases......................... 73
11. Issues for Law Reform ................ 90
EDITOR (Ag.)
Michael Murungi
EDITORIAL ASSISTANT
Esther Nyaiyaki
CONTRIBUTORS
Michael Murungi
Esther Nyaiyaki
Anne Asugah
Monica Achode
Nicholas Okemwa
Andrew Halonyere
Njeri Githanga Kamau
Nelson Tunoi
Daniel Mwihia
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The Hon. Mr. Justice J. E. Gicheru, EGH,
Chief Justice of Kenya, Chairman
THE NATIONAL COUNCIL FOR LAW
REPORTING
MEMBERS
The Hon Mr. Justice Johnson Evan Gicheru, EGH
Chief Justice, Chairman
The Hon Mr Justice P. K. Tunoi
Judge of the Court of Appeal
The Hon Lady Justice J. W. Lesiit
Judge of the High Court
Mrs L. A. Achode
Registrar, High Court of Kenya
Dr B. Sihanya
Dean Faculty 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. Michael M. Murungi
Ag. Editor/C.E.O
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.
DIGEST OF CASES FEATURED
2
COURT OF APPEAL
Admiralty law bill of lading nature of a bill of lading nature of legal relationship created by a bill of lading owner giving
oral instructions to amend the name of consignee effect of the amendment on the bill of lading and the relationship
between the parties whether there was privity of contract between the owner of goods and a ship owner ship owner
declining to release the goods to the owner due to conficting claims made upon the goods ship owner advising the
goods owner to obtain a court order for the release of the goods whether the ship owner was a bailee whether
the ship owner should have taken interpleader proceedings to determine the rightful owner of the goods whether
the goods owner had a cause of action against the ship owner for breach of contract and for damages for the loss
suffered on account of the delay in releasing the goods remoteness of damage mitigation of damage whether
the ship owner was liable to pay the legal costs and demurrage charges incurred by the goods owner.
PIL Kenya Ltd v Joseph Oppong ....................................................................................................................................... 52
Appeal - appeal against an interlocutory ruling of the High Court appellant seeking the superior court to stay further hearing
of criminal case pending hearing of petition appellant having feld petition to quash the indictment in the criminal
case on grounds that his constitutional rights to a fair and speedy trial had been denied - High Court declining to
grant interim conservatory orders of stay of criminal proceedings.
Joseph Munyiri Munene v Attorney General & another ................................................................................................. 69
Appeal compromise agreement by advocates enforcement of compromise agreements by the court - appellant arguing
that superior court ought to have accepted a compromise agreement entered into by parties discretion of the court
to accept the consent entered into by parties - whether parties can enter into compromise agreements in relation to
criminal cases nature and scope of criminal cases.
Joseph Munyiri Munene v Attorney General & another ................................................................................................. 69
Appeals lodging a civil appeal requirements to be fulflled by the appellant when lodging a civil appeal rules requiring
appeal documents to be fled in quadruplicate - appellant fling sets of record of appeal and memorandum of appeal
on separate days one set of record of appeal and memorandum of appeal fled on the last day within the prescribed
period for fling appeal and the other one day outside the set period power for Registrar of superior courts to reject
documents remedy available where the registrar rejects documents - Rules 9 (3), 14 (4) Court of Appeal Rules.
William Maina Kamanda v Margaret Wanjiru Kariuki & 2 Others ............................................................................. 68
Arbitration - reference of a dispute to arbitration - dispute between a construction frm and its client - dispute arising out of
payments based on certifcates issued by an architect engaged by the client - High Court accepting the argument
that the client was bound to meet the payments and that any complaints it had over the payments were matters
between it and the architect and not a dispute between the client and the construction frm - appeal - whether the
plaint fled by the respondents raised a dispute that could be referred to arbitration as provided in clause 36 of the
building contract between the parties.
University of Nairobi v N.K. Brothers Limited ................................................................................................................. 34
Civil Practice and Procedure appeal - application to strike out record of appeal on grounds of omission of primary documents
primary documents including notes of two the trial judges of the hearing omitted from the record - whether appeal
incurably defective - Court of Appeal Rules 85 (1), 85 (2A)
Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 3 Others ....................................... 65
Civil Practice and Procedure - decrees - decrees in consolidated suits grounds of appeal; that the decree was improper, that
the memorandum of appeal introduced new parties, no notices of appeal were fled and served in respect of a number
of decrees - decree having been issued in a test suit in which 11 parties had mutually agreed that the outcome of the
test suit would apply mutatis mutandis to the other similar claims - nature of the decree in such a suit - certifcation
of decrees - Court of Appeal Rules rule 85(1), (2).
David Ojwang Okebe & 11 Others v South Nyanza Sugar Company Limited ............................................................. 40
Civil Practice and Procedure - extension of time - time for fling a notice of appeal -factors to be satisfed by the applicant-
principles applicable in such applications - reference to the full Court of Appeal against a decision of a single
appellate judge dismissing an application for extension of time - nature of the power of a single appellate judge
on such an application - circumstances in which the full court will interfere with the exercise of the judges power
extent to which a single appellate judge may go in considering the merits of the intended appeal and fnding it
frivolous - Court of Appeal Rules, Rule 4
Eddy Ndeto Gitetu v Kenya Commercial Bank Ltd [2009] eKLR .................................................................................. 51
3
Civil Practice and Procedure Injunction injunction an equitable and discretionary remedy duration of an order of
injunction a sole discretion of the Judge depending on the circumstances of each case - Civil Procedure Rules Order
39 Rule 2 (2).
National Bank of Kenya Limited v Shimmers Plaza Limited.......................................................................................... 36
Civil Practice and Procedure interpleader proceedings nature of interpleader proceedings and circumstances in which
they may be taken ship owner holding goods in respect of which the goods owner had given oral instructions
changing the consignee three persons raising conficting claims to the goods ship owner declining to release the
goods whether the ship owner should have taken interpleader proceedings.
PIL Kenya Ltd v Joseph Oppong ...................................................................................................................................... 52
Civil Practice and Procedure judgment form of judgment matters which a judgment should contain judgment failing
to give an analyses and evaluation the evidence of one party whether such judgment was proper - Civil Procedure
Rules Order 20 rule 4.
Civil Practice and Procedure - overriding objective in civil litigation - introduction of sections 3A and 3B to the Appellate
Jurisdiction Act - aim of the amendment to facilitate just, expeditious, proportionate and affordable resolution of
an appeal - interpretation of the overriding objective by the court - effect of the amendments on the established
principles or precedent in the exercise of the discretion of the court - whether striking out record of appeal would
facilitate the just, expeditious, proportionate and affordable resolution of the appeal - sections 3A and 3B of the
Appellate jurisdiction Act.
Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 3 Others ....................................... 65
Civil practice and procedure - preliminary objection nature of preliminary objection -preliminary objection must raise
pure points of law and not general grounds raised to oppose the application on its merits - National Assembly and
Presidential Election Regulations rule 42.
William Kabogo Gitau v George Thuo .............................................................................................................................. 31
Civil Practice and Procedure res judicata judicial estoppel bar against bringing a suit in respect of which there were
previous proceedings by similar parties regarding the same subject matter application of res judicata where a party
attempts to bring subsequent proceedings over a matter which the party had an opportunity to raise and litigate but
failed to raise in previous proceedings - Civil Procedure Rules Order 20 rule 4.
Civil Practice and Procedure - review - power of a court to review its own decisions circumstances under which the court
reviews- discovery of new and important facts - duty of the applicant to clearly state the grounds for an application
for review - nature of the new facts discovered which may form the basis of such an application Civil Procedure
Rules Order XLIV order 44 .
Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR ............................................................................................................ 58
Civil Practice and Procedure - stay of execution - application for stay of execution of the judgment and decree of the High
Court pending appeal - matters which an applicant is required to establish to the court applicant seeking to stay an
order of the High Court granting the custody of a child to the respondent father and granting the applicant mother
visitation rights - order restraining the applicant from withdrawing the child from the jurisdiction of the court - effect
of an order of stay - whether an order of stay would avail much to the applicant - Court of Appeal Rules rule 5(2)
(b), 42.
P.K. A v M.S.A [2009] eKLR ............................................................................................................................................... 63
Civil Practice and Procedure - stay of proceedings - application for stay of proceedings pending appeal applicants duty
to establish that the intended appeal was arguable and that unless a stay was granted, the success of the appeal
would be rendered nugatory principles that guide the court in granting an order for stay of proceedings pending
appeal - jurisdiction - Court of Appeals jurisdiction in such an application -whether the Court of Appeal had
jurisdiction to stay criminal proceedings in the magistrates court which did not form part of the substantive appeal
before the Court.
Republic v Kenya Anti-Corruption Commission, Kibera Senior Principal Magistrates
Court & Attorney General .................................................................................................................................................. 29
4
Civil Practice and Procedure - taxation of costs - advocates fees - appeal from the decision of the High Court on a reference
of the decision of a taxing master reducing the instruction fees for an advocate to represent a petitioner in a winding
up petition - whether the High Court was right in upholding the decision of the taxing master - whether the instruction
fees was manifestly excessive and out of proportion to the work carried out by the advocates and it should have been
reduced further - Advocates (Remuneration) Order (Cap 16 Sub Leg) Rule 11(2).
Akhtar Shahid Butt & another v David Kinusu Sifuna T/A Sifuna & Company Advocates [2009] eKLR ............... 50
Civil Practice and Procedurewithdrawal of suiteffect of notice of withdrawalCivil Procedure Rules Order XXIV rule 1.
Civil practice and procedure-appeal - abatement of appeal application for revival of an appeal - Court of Appeal jurisdiction in
entertaining such an application whether an appeal shall abate on the death of an appellant or the respondent.
Pauline Wambui Ngari v John Kairu & Another ............................................................................................................ 43
Civil practice and procedure-appeal - application to strike out an appeal - grounds; the record of appeal contained uncertifed
copy of decree, copy of judgment and decree were at variance as regards the date of delivery of judgment - duty of
the court to issue on request copy of authentic documents - rationale for certifcation whether a certifed copy of
a decree was a primary document which could not be supplied through a supplementary record of appeal - whether
record of appeal satisfed the legal requirements. Court of Appeal Rules rule 85 (1) (h), Civil Procedure Rules Order
XX rules 3, 6, 7.(Cap 21).
Premier Dairy Ltd v Amarjit Singh Sagoo & Another .................................................................................................... 41
Civil practice and procedure-appeal extension of time- application for substitution of a deceased party to an appeal by a
legal representative - whether the time limit set by rules for the substitution of a deceased person may be extended
- Court of Appeal Rules, rule 96 (1) (2) .Civil Procedure Rules (Cap 21), Order XXIII rule 2.
Pauline Wambui Ngari v John Kairu & Another ............................................................................................................ 43
Civil Practice and Procedure-government proceedings-suit against the Attorney General claiming damages in negligence-
road traffc accident involving a vehicle belonging to the military-issue of the plaintiff not having issued a notice
of intention to sue to the Attorney General arising in the course of trial-High Court fnding that no notice had been
issued and ruling that it had no jurisdiction to hear the suit-appeal-jurisdiction of the court to entertain the suit-
time at which issues of jurisdiction ought to have been raised-whether the decision of the High Court was proper-
Government Proceedings Act (Cap. 40) section 13A.
Jackson K. Kiptoo v Attorney General [2009] eKLR ....................................................................................................... 62
Civil Practice and Procedure-injunction-mandatory injunction-application for a temporary mandatory injunction and stay of
execution of an order of the High Court pending appeal- onus on the applicant to persuade the court that the order
sought was deserved-principles the court will apply in deciding an application for a mandatory injunction-Court
of Appeal Rules rule 5(2)(b).
Stephen Kipkebut T/A Riverside Lodge And Rooms v Naftali Ogola [2009] eKLR .................................................... 59
Constitutional Law-fundamental rights- right of an arrested person right to be brought to court within a reasonably
practicable time after arrest person arrested on suspicion of the offence of robbery with violence brought to court
after 13 days whether his constitutional right had been breached whether the trial was proper-factors the court
considers in such circumstances-whether the contention was valid- Constitution section 72(3).
John Otieno Oloo v Republic [2009] eKLR ...................................................................................................................... 48
Contract - construction and interpretation of contract - interpretation of arbitration clause 36 Civil Procedure Act (Cap
21) section 3A, Arbitration Act (Cap 49) section 6(1).
University of Nairobi v N.K. Brothers Limited ................................................................................................................. 34
Criminal law appeal second appeal - complainant - meaning of complainant - appellant alleging that there was no capacity
to institute a criminal suit against him because no complaint was made to the police and the witnesses called had not
acquired letters of administration - complaint received by the police from the Attorney General - distinction between
criminal litigation and civil litigation in the administration of estate - purpose of instituting criminal suits in the
name Republic.
Kamau John Kinyanjui v Republic .................................................................................................................................... 66
5
Criminal law - deflement of a girl under the age of sixteen years-second appeal against conviction and sentence of 30 years
imprisonment - second appeal confned to matters of law - grounds of appeal not included in the memorandum of
appeal-whether the grounds were validly before the court for consideration.
Benard Omari Kigwaro v Republic ................................................................................................................................... 35
Criminal law - murder - appeal against conviction and sentence of death - re-evaluation of the evidence - Penal Code (Cap
63) section 204.
Shadrack Ayoro Owato & 2 Others v Republic [2009] eKLR ......................................................................................... 64
Criminal law Murder - appeal against conviction and sentence to death - offence committed when appellant was under the
age of 18 - whether sentence at the pleasure of the president was proper. Penal Code (Cap 63) sections 203,204.
Martin Omollo Odongo Vs Republic ................................................................................................................................. 35
Criminal law- murder - defence of insanity - evidence of possible mental disorder - duty of the court to direct itself on the
issue of unsoundness of mind and if possible order an inquiry into the same -whether sentence was proper. Criminal
Procedure Code Section 162 (Cap 75).
Omae v Republic .................................................................................................................................................................. 37
Criminal Law - murder - High Court reducing the charge to manslaughter and sentencing the appellant to 15 years in prison
appeal against conviction and sentence-Penal Code (Cap 63) sections 203,204.
Edwin Otieno Odhiambo v Republic ................................................................................................................................ 44
Criminal law - murder - mens rea - malice aforethought - common intention - accused persons in a group of persons armed
and planning to attack the deceased - gang, killing or maiming the deceased and destroying his property where
the fatal shot was by a person not before the court-whether there was a common intention to commit the offence of
murder by the two accused persons who were members of the group - Penal Code (Cap 63) section 21.
James Omari Nyabuto & another v Republic [2009] eKLR ........................................................................................... 47
Criminal law - sexual offence-deflement - deflement of a girl aged under 14 years - alternative charge of indecent assault
on a female - appeal against conviction on the alternative count and sentence of 15 years imprisonment - appeal
against conviction and sentence - defect in charge - Penal Code (Cap. 63) section 144(1), 145(1).
J.M.A v Republic [2009] eKLR .......................................................................................................................................... 61
Criminal law - theft by agent the appellant a practising advocate convicted of stealing clients money prosecution alleging
that appellant under unclear circumstances fled various cases in the High Court seeking compensation for the deaths
of some the prison offcers who died in an accident - prosecution alleging that the appellant illegally transferred
money from clients account to unknown account legality of such transfer of clients money.
Kamau John Kinyanjui v Republic .................................................................................................................................... 66
Criminal law-murder-ingredients of murder-malice afore thought-proof of- Penal Code (Cap 63) section 206.
James Omari Nyabuto & another v Republic [2009] eKLR ............................................................................................ 47
Criminal practice and procedure- appeal - robbery with violence - second appeal confned to matters of law appellate court
bound by concurrent fndings of fact made by the trial court unless fndings were not passed on evidence. Constitution
Section 72 (3).Penal Code section 296 (2)(Cap 63).
Charles Chacha Sasi v Republic ........................................................................................................................................ 43
Criminal practice and procedure appeal sentencing manslaughter appeal against conviction and sentence of
imprisonment to 30 years - principles of sentencing - circumstances in which an appellate court will interfere with
the sentence imposed by a trial court - whether the sentence of 30 years imprisonment should be reduced. Penal
Code (cap 63) sections 202, 205.
Cecilia Mwelu Kyalo v Republic ........................................................................................................................................ 12
6
Criminal Practice and Procedure - appeal-sentencing - second appeal against conviction and sentence of imprisonment to
20 years for deflement of a minor - offence committed before the coming into force of the Sexual Offences Act - at
the time offence was punishable by a maximum sentence of imprisonment for life with hard labour - inconsistency
on the term of imprisonment meted out in substitution for life sentence - whether the Magistrates Court was unduly
infuenced by the Sexual Offences Act to apply its sentencing principles - jurisdiction of the second Appellate Court
to interfere with sentence.
Fred Michael Bwayo v Republic ......................................................................................................................................... 32
Criminal Practice and Procedure appeal-trial trial judge- change of presiding judge change where the presiding judge
has heard all the witnesses and recorded all the evidence - a different judge writing a judgment based on such
evidence - matters to consider before a judge can act on the evidence recorded by a preceding judge - Section 200
(1) (b) of the Criminal Procedure Code (Cap 75).
Criminal Practice and Procedure - arrest and detention - rights of an arrested person - right to be arraigned in court within
a reasonable time computation of time - Saturday and Sunday not to be considered for the purposes of reckoning
the most practicable time the suspect should have been arraigned in court.
Criminal practice and procedure - arrest and detention rights of an accused person to be arraigned in court within a
reasonable time - duty of the prosecution to give an explanation for the delay beyond the period stipulated under the
constitution - issue of delay raised for the frst time in the Court of Appeal - duty of the courts to take judicial notice
of public holidays and distances within the country. Constitution, section 72 (3).
Martin Omollo Odongo v Republic .................................................................................................................................... 35
Criminal practice and procedure-charge sheet-defective charge sheet- framing of the charge of murder where there is more
than one accused person-failure to state jointly charged or jointly with others not before court-whether the
defect occasioned prejudice to the appellant.
Criminal Practice and Procedure - charge sheet - statement of offence - charge sheet for the offence of deflement failing to
state that the accuseds carnal knowledge of the complainant was unlawful- whether the charge was defective -
where the charge of deflement was the main charge and there was an alternative charge of indecent assault - whether
once the main charge has been adjudged to be defective, a conviction may be entered on the alternative charge -
whether the omission of the term unlawful was a curable defect - court considering that the defect had not been
raised by the prosecution or the defence.
J.M.A v Republic [2009] eKLR ........................................................................................................................................... 61
Criminal Practice and Procedure-evidence-corroboration corroboration of the evidence of a child of tender years-
circumstances in which corroboration of such evidence would be required- the law and practice on how a trial court
should handle corroborated and uncorroborated evidence of a child witness.
Criminal Practice and Procedure-evidence-evidence of a child of tender years-meaning of child of tender age-procedure in
receiving the evidence of a child-duty of a trial court to carry out a voire dire examination of a child before receiving
the childs evidence-manner in which a court is to deal with both sworn and unsworn evidence of a child witness-
Oaths and Statutory Declarations Act section 19 (Cap. 15) Children Act, 2001 (Act. No. 8 of 2001) section 2.
Criminal practice and procedure-jurisdiction-jurisdiction of the Court of Appeal sitting on a second appeal to correct the
disparity of the sentence meted out by a subordinate court - whether sentence should be reviewed. Criminal Procedure
Code section 361 (1).
Kennedy Indiema Omuse v Republic ................................................................................................................................. 33
Criminal practice and procedure - probation report where probation report was relied upon as a basis for sentencing -
whether sentencing was proper.
Cecilia Mwelu Kyalo v Republic ........................................................................................................................................ 39
7
Criminal practice and procedure-retrial - circumstances in which a court will consider a retrial - where trial was vitiated
by the failure of the Magistrates Court to properly determine the competence of a child to give evidence - whether
appeal had merit. Penal Code(Cap 63) section 234.Evidence Act section 124
Opicho v Republic ................................................................................................................................................................ 45
Criminal practice and procedure-sentencing principles of sentencing - circumstances in which an appellate court will
interfere with a sentence.
Criminal practice and procedure-sentencing sentence to be commensurate to the moral blameworthiness of the offender-
duty of the sentencing court to look at the facts and circumstances of a case in its entirety.
Criminal practice and procedure sentencing sentencing for the offence of illegal possession of cannabis sativa - sentence of
imprisonment to six years having been enhanced to 20 years on frst appeal - Court of Appeal jurisdiction on severity
of sentence - whether the High Court had misdirected itself on sentence by misinterpreting the law as imposing a
mandatory sentence or a minimum sentence.
Daniel Kyalo Muema v Republic ........................................................................................................................................ 46
Criminal Practice and Procedure - trial -change of presiding judge- trial for murder conducted by two judges in succession
- duty of succeeding judge to inform the accused person of his right to recall the witnesses - duty of the succeeding
judge to specifcally record that the accused had been informed of that right failure by the accused persons advocates
to raise the issue of the recall of witnesses whether such failure constitutes a waiver- Criminal Procedure Code (Cap
75) section 201, 200(3), 200(4).
Shadrack Ayoro Owato & 2 Others v Republic [2009] eKLR ........................................................................................ 64
Damages remoteness of damage mitigation of damages - proximate and remote cause of loss and damage matters the
court will consider in evaluating the proximity of damage to the action that is alleged to be the cause of the damage
duty of a claimant in damages to mitigate his damages - whether ship owner was liable for the legal costs and
demurrage charges incurred by the goods owner due to the delay in releasing the goods whether the goods owner
had mitigated his damage.
Election Petition - procedure - procedure by which an election petition may be disposed - need for expeditious hearing and
disposal of petitions - respondents to a petition fling motions for the striking out of the petition on the ground that
the returning offcer having been struck off as a party to the petition, the petition could not proceed - power of the
court to either summarily reject a petition or list it for hearing - whether this power is discretionary or mandatory
- matters a petition court should consider in exercising such power - National Assembly and Presidential Elections
Act (Cap. 7) section 22 - National Assembly Election (Election Petition) Rules, 1993 rule 22.
Electoral Commission of Kenya & another v Ayub Juma Mwakwesi [2009] eKLR ..................................................... 52
Election petition - procedure - procedure for inspection of documents in an election petition -appeal against an order of
the High Court upholding a preliminary objection to an application for leave to inspect documents High Courts
discretion to sanction inspection of documents jurisdiction of the Election Court circumscribed by the Constitution,
the National Assembly and the Presidential Elections Act and by the Election Petition Rules - whether regulation
42 of the National Assembly and Presidential Election Regulations was applicable after the fling of a petition and
after the constitution of the election court.
William Kabogo Gitau v George Thuo .............................................................................................................................. 31
Elections appeal application to strike out record of appeal appealing from the ruling of the High Court - scrutiny and
recount of votes appeal against the order for scrutiny and recount by the second applicant frst applicant seeking
to strike out the appeal on the ground that it was fled out of time by one day contrary to the National Assembly
and Presidential Elections Act second applicant seeking for extension of time to fle an appeal - whether court
can extend the statutory limitation period provided under section 23 (4) of the National Assembly and Presidential
Elections Act.
William Maina Kamanda v Margaret Wanjiru Kariuki & 2 Others ............................................................................. 68
8
Estoppel - doctrine of estoppel -meaning of the doctrine and its application - waiver- meaning and application of the doctrine
of waiver - dispute as to whether a loan had been advanced in Kenya Shillings or in foreign currency - whether the
doctrines of estoppel and waiver had operated to allow for the advancing of the loan in foreign currency.
Seascapes Limited v Development Finance Company of Kenya Limited ...................................................................... 49
Evidence-child evidence - sexual offence where the only evidence was that of a child of tender years, who was the alleged
victim-how a trial court should receive such evidence-Evidence Act section 125.
John Patrick Kibet v Republic........................................................................................................................................... 30
Evidence-Criminal evidence - evidence of a child of tender years-law and procedure in receiving the evidence of a child of
tender years - Statutory Declarations Act section 19.
Opicho v Republic ................................................................................................................................................................ 45
Evidence-criminal evidence -identifcation evidence- identifcation by recognition second appeal - whether in the face of
adequate proof, re-evaluation of identifcation evidence was essential.
Charles Chacha Sasi v Republic ......................................................................................................................................... 43
Evidence-criminal evidence-medical evidence- medical examination for the presence of spermatozoa conducted fve days
after deflement- whether such evidence was credible.
John Patrick Kibet v Republic ........................................................................................................................................... 30
Evidence evaluation of evidence duty of a trial court to evaluate and anlyse all the evidence-duty of a frst appellate court
to re-evaluate and analyse the evidence afresh.
Evidence - expert evidence handwriting experts- nature of expert evidence and how a trial court is to treat such evidence-
law applicable in considering the opinion of document examiners or handwriting experts.
Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR ........................................................................................................... 58
Evidence-expert witness-expert opinion-meaning of expert-general rule regarding how a court is to treat expert evidence-
where there is a confict in the expert evidence-how such confict is to be treated or resolved-Evidence Act (Cap.
80) section 48.
Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 others [2009] eKLR ................................................... 60
Evidence - frst appeal - duty of a frst appellate court with regard to the evidence adduced at the trial court - matters the
appellate court will consider in analyzing the fndings of fact made by a trial court.
Seascapes Limited v Development Finance Company of Kenya Limited ...................................................................... 49
Evidence-identifcation evidence-evidence of a single witness-corroboration of such evidence- how the court is to treat such
evidence.
Shadrack Ayoro Owato & 2 Others v Republic [2009] ..................................................................................................... 64
Family law-children-custody and maintenance-court having awarded the father sole custody of the child-mother getting four
hours visitation rights-appeal against decision-applicable principles-best interests of the child-Children Act (No.
8 of 2001) section 4(2).
P.K. A v M.S.A [2009] eKLR ............................................................................................................................................... 63
Income Tax -appeal appeal from judgment and order of the High Court agency notice issuance of agency notice to
appellants bank Act for alleged tax due from the appellant time within which the agent should remit money demanded
in the notice to the Commissioner of Income Tax section 96 Income Tax Act.
Pili Management Consultants Ltd v Commissioner Of Income Tax Kenya Revenue Authority ............................... 67
Income Tax items upon which income tax is payable the scheme and system of dealing with tax issues under the Income
Tax Act respondent issuing an agency notice against the appellant - appellant claiming there was no tax due from
it since it had fled nil returns for the relevant year respondent alleging to have knowledge about a large sum
of money deposited into the appellants account during the relevant year - taxable income appellant offering no
9
explanation why the money was not liable to tax whether the appellants right to appeal and assessment of tax was
violated - whether the Income Tax Commissioner acted correctly in issuing the agency notice sections 52B, 84,
85, 86,87,88, 89, 90, 91, 96 of the Income Tax Act.
Pili Management Consultants Ltd v Commissioner Of Income Tax Kenya Revenue Authority ................................. 67
Insurance law contract of insurance contracts of insurance to be based on utmost good faith - non disclosure of material
facts appellant claiming that the respondent had failed to disclose an existing medical condition prior to underwriting
the risk covered by the insurance policy subsequently emerging that the respondent suffered from a medical condition
facts of which were only known to him - whether appellant was entitled to repudiate insurance policy on account
of non disclosure of material facts.
Co-operative Insurance Company Ltd v David Wachira Wambugu .............................................................................. 70
Judicial review prohibition appellant seeking an order to prohibit the respondent from seizing monies in their bank
account premise of judicial review.
Pili Management Consultants Ltd v Commissioner Of Income Tax Kenya Revenue Authority ................................ 67
Land Law adverse possession - ingredients of a claim for adverse possession matters which claimant is required to
establish to the court procedure in lodging a claim for adverse possession jurisdiction to convert a case which
has been wrongly brought by an originating summons - whether such a claim may be raised by way of a counterclaim
in a suit commenced by a plaint - Civil Procedure Rules Order 36 rule 10 (Cap 21).
Ngati Farmers Co-Operative Society Ltd v Councillor John Ledidi ............................................................................. 42
Land law - claim to land - claim based on trust and adverse possession - prescription - prescriptive rights in land - how
such rights are acquired - incidence and scope of the right to land by adverse possession - procedure in bringing a
claim to land by adverse possession - matters which the claimant is required to establish to the Court - Limitation
of Actions Act (Cap 22) section 7, 13.
Teresa Wachuka Gachira v Joseph Mwangi Gachira ...................................................................................................... 38
Mortgages and Charges statutory notice of sale notice of intention to sell charged property validity of notice - where the
court was inclined to grant an interlocutory order restraining a mortgagee from exercising its statutory power of sale
solely on the ground that the mortgagee had not issued a valid notice - whether to grant an injunction pending the
determination of the suit would be to frustrate the statutory right of the mortgagee to realize the security - Transfer
of Property Act 1882 section 69A (1) (a).
National Bank of Kenya Limited v Shimmers Plaza Limited......................................................................................... 36
Sentencing - mitigation - duty of a court to consider and record mitigation failure by the High Court to accord the appellant
an opportunity to offer mitigation before pronouncing its sentence after conviction - High Court having failed to
consider that the appellant had been in custody for 3 years before the trial - court also failing to consider the issues
of provocation and intoxication in arriving at its sentence whether in the circumstances it was proper to interfere
with the sentence - Criminal Procedure Code (Cap 75) sections 215, 216.
Edwin Otieno Odhiambo v Republic ................................................................................................................................. 44
Sentencing- offence of deflement - offence punishable by mandatory sentence of life imprisonment - consideration of principles
of sentencing - court inclined not to so fundamentally depart from principles of sentencing obtaining at the time
that the offence was committed - whether a sentence of imprisonment for 30 years in substitution of a sentence of
imprisonment for life should be reduced - Constitution section 72 (3) - Penal Code (Cap 63) section 145(1) - Criminal
Procedure Code (Cap 75) section 361(1).
Sentencing - sexual offence - indecent assault on a female - sentence of 15 years imprisonment - whether the sentence was
legal - Penal Code (Cap. 63) section 144(1).
J.M.A v Republic [2009] eKLR .......................................................................................................................................... 61
Statutes interpretation of statutes intention of parliament to provide life imprisonment for an offence of deflement of a
younger child. Criminal Procedure Code section 361(1) (a) - Sexual Offences Act section 8(2) - Penal Code (Cap63)
section 145(1).
Fred Michael Bwayo v Republic ........................................................................................................................................ 32
10
Statutes interpretation of statutes interpretation and construction of rule 5 (2) (b) of the Court of Appeal Rules meaning
of the phrase stay of further proceedings whether it refers to criminal proceedings or civil proceedings - Court
of Appeal Rules rule 5(2) (b).
Republic v Kenya Anti-Corruption Commission, Kibera Senior Principal Magistrates
Court & Attorney General .................................................................................................................................................. 29
Statutes-Interpretation of statutes - interpretation of the Narcotic Drugs and Psychotropic Substances (Control) Act, Act No.
4 of 1994 section 3(2) - nature of punishment prescribed by the section meaning of the term shall be liable.
Interpretation and General Provisions Act section 66(1), Penal Code section 26(3).
Daniel Kyalo Muema v Republic ........................................................................................................................................ 46
Tort-negligence-road traffc accident-assessment of liability and award of damages-damages for loss of user and earnings-
principle of mitigation of damages-trial court having refused to admit some of the documents proving special
damages-duty of a frst appellate court to re-examine the evidence-appellant pleading negligent obstruction against
the respondent-doctrine of res ipsa loquitor.
Jackson K. Kiptoo v Attorney General [2009] eKLR ...................................................................................................... 62
Tort-negligence-special and general damages for negligence-negligence in construction-collapse of dwelling due to poor
workmanship-suit for damages in negligence-appeal against judgment in favor of the plaintiff-whether the evidence
adduced was suffcient to establish the plaintiff s case.
Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 others [2009] eKLR ................................................... 60
HIGH COURT
Capital Markets Authority regulations of Capital Markets appeal against decision of Capital Markets Authority to
impose sanctions second appeal to deal with matters of law legal authority of the Capital Markets Authority in
conducting an inquiry and imposition of sanctions over licensed persons - disciplinary procedures of the Capital
Markets Authority where the Capital Markets Act requires a board of the Authority to only act through a quorum
of six members appointed sub-committee purported to hear the appellants, acted with only fve members whether
it was a lawful quorum whether Authority had legal authority or jurisdiction to delegate to a subcommittee to
carry out investigations and act on its fndings - duty of the Authority after gathering initial data on the transactions
to inform the appellants of the general nature of the accusations they would have to answer - disciplinary powers
of the Capital Markets Authority to impose sanctions on licensed persons and directors of licensed persons.
Shah Munge Partners and 4 Others v Capital Markets Authority ................................................................................. 76
Civil Practice and Procedure-Injunction - interlocutory injunction- application seeking orders of interlocutory injunction-
principles to be considered in determining whether or not to grant interlocutory injunction -claim of infringement
of copyright by plagiarizing the plaintiff s works -whether the plaintiff had established a prima facie case with a
probability of success- what constituted a prima facie case - whether the plaintiff was entitled to an interim order
of injunction. Oxford University.
Press (E.A) Limited v Longhorn Publishers (K) Limited & 4 others [2010] eKLR ...................................................... 85
Civil Practice and Procedure-review-application for review of ruling of the High Court-discovery of new and important
evidence-whether there applicant met the requirements prescribed in the provisions of the rules-validity of application-
Civil Procedure Rules (cap 21 Sub Leg) order 44 rules 1, 2, 3, 4.
John Koyi Waluke v Moses Masika Wetangula & 2 Others ........................................................................................... 79
Civil Practice and Procedure-service process-substituted service-where the process server effected substituted service with
due diligence without holding a valid license-whether the process server who lacked capacity to serve could be held
to have satisfed the requirement of due diligence-National Assembly and Presidential Elections Act (cap 7) section
20.
John Koyi Waluke v Moses Masika Wetangula & 2 Others ............................................................................................ 79
Constitutional Law-citizenship-domicile-ability to run for public offce as a foreign citizen-claims of the petitioner having
acquired Australian citizenship-issues of dual citizenship-whether the respondent owed allegiance to the government
of Australia-previous judicial review proceedings having failed to resolve the issue of the petitioners citizenship-
procedure to be followed where a member of the National Assembly ceased to be a citizen of Kenya-no objection
11
having been lodged to the nomination of the petitioner as a candidate of the Wajir South Constituency parliamentary
seat -whether a person who acquires Kenyan citizenship by birth loses that citizenship upon acquiring the citizenship
of a different country-Constitution of Kenya section 39(1)(a); section 97(1), (3) and (7).
Mahamud Muhumed Sirat v Ali Hassan Abdirahman & 2 Others [2010] eKLR ........................................................ 80
Constitutional Law-fundamental rights and freedoms-alleged contravention of fundamental rights and freedoms through the
Constitution review process-preliminary objection- jurisdiction of the court to determine the issues in dispute arising
from the process undertaken under the Constitution of Kenya Review Act, 2008-claim by the respondents that only
an Interim Independent Constitutional Dispute Resolution Court had Jurisdiction to deal with such a dispute under
Section 60A of the Constitution of Kenya -whether the preliminary objection was merited- Constitution of Kenya
Review (Act, No. 10 of 2008) Section 60A.
Bishop Joseph Kimani and 2 Others v. The Attorney General and 2 Others ................................................................ 73
Constitutional Law - interpretation of the Constitution - effect of Section 41A of Constitution of Kenya Amendment (Act
No. 10 of 2008) Act- the section dissolving the Electoral Commission of Kenya (ECK) and establishing (IIEC) in
its place-interpretation of the law -whether it was clear that IIEC had fully succeeded the (ECK) in respect of the
rights, duties, obligations and assets- use of the words automatically and fully transferred - whether the said
section created a vacuum on duties relating to pending election petitions whether substitution affected pending
proceedings-the Constitution of Kenya (Amendment) (Act No. 10 of 2008) Section 41 and 41A; the Interpretation
and General Provisions Act (Cap 2) Section 23 (1).
Ayub Juma Mwakesi v Mwakwere Chirau Ali & 2 others [2010] eKLR ....................................................................... 74
Criminal Practice and Procedure-bail-application for bail pending trial-revision-application to reinstate cash bail granted
to the applicants by the trial court- applicants accused of being in possession of Government stores and ammunition-
bail granted by trial court revised by the High Court on the ground that the applicants were likely to compromise
national security if released on bail whether bail could be reinstated- Penal Code (Cap 63) section 324(3).
Republic v Muneer Harron Ismail & 4 others [2010] eKLR ........................................................................................... 82
Criminal Practice and procedure-bail-bail pending trial- rationale of bail-bail meant to secure the attendance of an accused
person to answer the charges brought against him - factors to be consider before granting bail-whether the release
of the individual will endanger public security, safety and the overall interest of the wider public - whether by merely
claiming that the respondents were security threats because they were allegedly found in possession of the weapons
mentioned in the charge sheet was a factor that could lead to the refusal of bail- Constitution of Kenya section 60(1)
and Criminal Procedure Act (Cap. 75) section 123(3), 125(1) and (2).
Criminal Practice and Procedure order - court orders-extraction of court orders-interpretation of the orders - orders obtained
ex-parte in contravention of the principles of natural justice- orders extracted in a manner which contravened the
ruling- substitution of the word revise with reverse whether there was an attempt to abuse the judicial process
in extraction of the order.
Damages- general and special damages - assessment of damages damages for defamation - rationale of awarding damages-
damages awarded not intended to enrich the plaintiff and hence should not be excessive-need for justifcation-whether
the court was barred from making a reasonably high award in proper cases.
Francis Xavier Ole Kaparo v Standard Limited & 3 others [2010] eKLR .................................................................... 87
Election law- -election petition- parliamentary election- irregularities in elections petitioner citing several irregularities in
the conduct of elections - counting of votes whether the irregularities could warrant nullifcation of the election.
Election law-election petition-parties to an election petition - Electoral Commission of Kenya (ECK) named as a respondent to
the petition (ECK) dissolved and a new body, the Interim Independent Electoral Commission (IIEC) established in
its place (IIEC) purporting to take over and continue with the suit in the place of the (ECK) - preliminary objection
on a point of law objection on the ground that the third respondent, the (ECK) was not a proper party to the suit
as there was no application for the substitution of the defunct (ECK) with the (IIEC)- whether substitution of the
(IIEC) was automatic-Section 41 A of the Constitution of Kenya Amendment Act.
Ayub Juma Mwakesi v Mwakwere Chirau Ali & 2 others [2010] eKLR ...................................................................... 74
12
Election law-election petition-preliminary objection on a point of law- parties to an election petition a respondent in relation
to an election petition -suit against the returning offcer struck out by the Court of Appeal-claim by the respondents
that striking out nullifed the whole suit- whether removal of the returning offcer affected the life of the suit-discretion
of the court to hear the suit-substantive law vis-a-vis the procedural law-whether the suit could be sustained where
one party acting as the agent of another has been struck off from the pleadings- Section 22 of the National Assembly
and Presidential Elections Act (Cap 7)and rule 22 of the National Assembly (Elections Petition) Rules 1993.
Election law-election petition-service of election petition-striking out-application for striking out petition for want of service-
whether court could strike out a petition without any express provisions of the law-whether a petition could survive
without the frst respondent as a party to the same-validity of application-Civil Procedure Act (cap 21) sections 3,
3A and 80; National Assembly and Presidential Elections Act (cap 7) section 20.
John Koyi Waluke v Moses Masika Wetangula & 2 Others Election ............................................................................. 79
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 - National Assembly and
Presidential Elections Act section 6, Constitution of Kenya Section 35.
Election law-Returning Offcer-Powers of a returning offcer-a returning offcer canceling results in a polling station- where
there was non-compliance with the written law-election not carried out with the principles laid down in the written
law -whether the non-compliance affected the result of the election -effect of the cancelled votes on the outcome of
the election.
Election Petition-dismissal-application to dismiss election petition-petitioner having Australian citizenship-eligibility to
present himself for nomination or election as a member of the Kenyan parliament-petitioners constitutional capacity
to institute or proceed with the election petition-court jurisdiction to hear the facts of the petition-person who may
challenge the election of a member of the National Assembly-procedure-qualifcation of a person wishing to be
elected as member of the national assembly-whether the petitioner had locus standi to institute the election petition-
Constitution of Kenya section 4A; National Assembly and Presidential Elections Act (Cap. ..?) sections 35(1), 43(1),
44(1); Civil Procedure Act (Cap. 21) Section 3A.
Mahamud Muhumed Sirat v Ali Hassan Abdirahman & 2 Others [2010] eKLR ........................................................ 80
Employment law master and servant relationship law governing claims arising from the termination of such relationship
whether such claims were subject to contract law or judicial review.
Republic v Moi Teaching and Referal Hospital Board Ex-parte Joseph Ochenge Ogaro [2010] eKLR .................... 89
Estoppel-estoppel by conduct- conduct of the counsel for the Electoral Commission of Kenya (ECK) the counsel holding
themselves out as defending the suit throughout the proceedings- whether the (IIEC) was to be regarded as having
taken over all liability, including criminal liability, of the defunct Electoral Commission by virtue of the conduct of
the counsel for the (ECK).
Intellectual Property - copyright suit for alleged copyright infringement alleged infringement of the copyright to a Swahili
dictionary- dictionary making a unique craft requiring the words to appear alphabetically and the defnitions of words
to have similarities-where there were similarities between the applicants dictionary and the allegedly infringing
copies of the defendants in the defnitions, design and artistry of presentation as well as the illustration- where some
errors in the plaintiff works were also repeated in the defendants publication-whether on the face of the record
the defendants publication had infringed the plaintiff s copyright by copying or plagiarizing the plaintiff s works -
Copyright Act (Cap 130), section 35(4).
Oxford University Press (E.A) Limited v Longhorn Publishers (K) Limited & 4 others [2010] eKLR ...................... 85
Judicial Review certiorari-application for orders of certiorari to quash the decision of the Senior Resident Magistrate
ordering the forfeiture of a motor vehicle applicant claiming failure by magistrate to give the applicants a hearing-
application objected to on the ground that it was incompetent and it did not fall within the provisions for granting
certiorari and that the forfeiture order was reasonable-whether it was automatic upon conviction of possession of
sandal wood for the magistrate to order forfeiture of the lorry-whether the magistrate was in violation of the rules
of natural justice- Criminal Procedure Code (Cap 75) Forests Act(Cap 385)section 131 and 389 A(1), Forests Act
No. 7 of 2005), 2005 section 55(1).
Peterson Njue Njeru v Maralal Senior Resident Magistrate & another [2010] eKLR ................................................. 86
13
Judicial Review certiorari-remedy-application to quash a decision dismissing the ex-parte applicant from employment-
contract of employment- a contractual relationship of master and servant-breach of contract-remedy available-
master-servant relationship within the province of private law and the alleged rights enforceable within the confnes
of private law - whether a contract of employment could be subject to Judicial Review -whether judicial review was
applicable where there was an alternative remedy- Law Reform Act (Cap 26) Section 8 and 9, Civil Procedure Rules,
Order 53 Rules 1, 2 and 3.
Republic v Moi Teaching and Referal Hospital Board Ex-parte Joseph Ochenge Ogaro [2010] eKLR ..................... 89
Judicial Review-Jurisdiction-jurisdiction of the court to grant judicial review orders- source of the jurisdiction - applicant
citing all other enabling provisions of law in support of his application - failure by the applicant to specifcally
cite the statute and sections relied on -whether that failure rendered the motion incompetent and fatally defective
whether the court had jurisdiction to entertain the application - Law Reform Act (Cap. 26) Section 8 (1) and (2).
Republic v Secretary, Public Service Commission & 2 others Ex-parte Peter Gitahi Kamaitha [2010] eKLR ......... 81
Judicial Review pleadings -statutory statement- contents-statutory statement required to contain only the name and description
of the applicant, the relief sought and the grounds upon which the relief is sought-where the statement did not contain
the relief sought and the grounds thereof- whether the application was defective-supporting affdavit to the notice of
motion- supporting affdavit having been sworn before leave to commence judicial review proceedings was granted-
whether that rendered it incompetent -Civil Procedure Rules Order 53 Rule 1.
Judicial Review procedure-substantive application-Notice of Motion-intitulement of the application -application to be made
in the name of the Republic-failure by the applicant to make the application in the name of the Republic- applicant
alleging that the use of the wrong format in the title of the application did not prejudice the respondents-whether
the application could be amended-whether the Civil Procedure Rules provided for such amendments- whether the
failure to name the Republic as the applicant rendered the application incurably defective- Civil Procedure Rules
Order 53.
Judicial Review-nature of judicial review- judicial review proceedings a special jurisdiction that is neither criminal nor
civil- whether the Civil Procedure Act (Cap. 21) and the Civil Procedure Rules were applicable-whether issues of
substantial justice and prejudice were applicable in Judicial Review proceedings.
Jurisdiction-jurisdiction of the High Court- unlimited original jurisdiction in virtually all matters as conferred by the constitution-
effect of Section 60A of the Constitution of Kenya-the said section establishing the Independent Constitutional Dispute
Resolution Court (IICDRC) with the jurisdiction to deal disputes arising from the Constitutional review process
-whether the section curtails the jurisdiction of the High Court within the Constitution itself- Constitution of Kenya
Review (Act, No. 10 of 2008) S.6.
Bishop Joseph Kimani and 2 Others v The Attorney General and 2 Others ................................................................ 73
Jurisdiction jurisdiction of the Independent Constitutional Dispute Resolution Court- jurisdiction on disputes arising from
the Constitutional review process- whether the intention of the legislature was to totally oust the jurisdiction of the
High Court from dealing with the Constitutional review process- whether the High court had power to enforce the
protective provisions set out in Section 70 to 83 of the Constitution where the matters arose during and from the
Constitutional review process in absence of the Intended Interim Court Constitution of Kenya Review (Act No. 10
of 2008) section 60A.
Bishop Joseph Kimani and 2 Others v The Attorney General and 2 Others ............................................................... 73
National security-meaning of national security-assessment of national security-duty of the prosecution to state the extent of the
past, present and future threat posed by respondents to national security to justify denial of bail-need for cogent, strong
and specifc evidence showing the existence of potential damage to national security posed by the respondents- mere
suspicion that an individual is likely to compromise national security not a basis to indict - evidence required to
support existence of the said suspicion- whether the issue of national security could be used as a blanket to violate
the rights and the liberty of an accused person.
14
Statute-interpretation of the statutes- interpretation of section 1A and 1B of the Civil Procedure Act- the court required to
take into consideration the overriding objective of the Act in interpreting the Civil Procedure Act or exercising any
power in the said Act- where judicial review proceedings were strictly governed by order 53 of the Civil Procedure
Rules- whether the overriding objectives were applicable to judicial review proceedings- Civil Procedure Act (Cap
21) section 1A and 1B and Civil Procedure Rules Order 53.
Republic v Secretary, Public Service Commission & 2 others Ex-parte Peter Gitahi Kamaitha [2010] eKLR ........ 81
Statutes interpretation of statutes difference between the jurisdiction or legal authority of the Capital Markets Authority
under section 11 (3) (h) and sections 25 and 26 of the Capital Markets Act (Cap 485A) where there is a confict
between the Capital Markets Act and any other law whether the Capital Markets Act takes precedence - legislative
intent of section 33(2)(b) and section 29(1)(b) of the Act - Capital Markets Act (Cap 485A) sections 6(2), 11 (3) (h),
14(1), 25, 26, 35.
Shah Munge Partners and 4 Others v Capital Markets Authority ................................................................................ 76
Statutes interpretation of statutes - Interpretation of the law-duty of the court in interpretation of the law- positivist vis-a-vis
realistic approach - responsibility of the court to maintain the rule of law-duty of the court to embrace a willingness
to oversee executive action and to refuse to countenance behavior that threatens either basic human rights or the
rule of law- High Court the ultimate custodian of the Constitution of Kenya -whether enactment of Section 60A of the
Constitution was intended to exclude the petitioners from accessing the courts in search of justice- the Constitution
of Kenya Review (Act No. 10 of 2008) Section 60A.
Bishop Joseph Kimani and 2 Others v The Attorney General and 2 Others ................................................................ 73
Statutes-interpretation of statutes-use of the word shall and may whether the use of word may gives the court the
discretion whether or not to impose the penalty of forfeiture of a motor vehicle- section 55(1) of the Forests Act No.
7 of 2005, section 55(1) of the Forests Act (Cap 385) (repealed).
Peterson Njue Njeru v Maralal Senior Resident Magistrate & another [2010] eKLR ................................................. 86
Tort - defamation-aggravated damages-aggravation of damages in defamation conduct of the defendant- nature of the
defendants conduct that would aggravate damages subjecting the plaintiff to the court process only to later retract
the defence and concede liability whether this was aggravating conduct.
Tort - defamation-assessment of damages-factors to be considered-conduct of the defendant-publishing of an apology-nature
of an apology suffciency of apology balancing the nature and prominence of the defamatory publication-defendant
publishing an apology too small, innocuous and hidden in some corner of the paper -the defendant further publishing
words defamatory to the plaintiff-whether that kind of an apology would mitigate the amount of damages to be
awarded.
Tort -defamation - libel damages- compensatory and aggravated damages for defamation- imputations of corruption,
dishonesty and interference with the course of justice made against the plaintiff in his capacity as Speaker of the
National Assembly publication published in the East African Standard and Sunday Standard -liability entered by
consent - assessment of damages - matters which a court should take into account in assessing damages plaintiff,
the Speaker of the National Assembly of Kenya at the material time factors to be considered by the court- manner
and extent of circulation- conduct of both the plaintiff and the defendant- repetition of the libel, failure to contradict
it, insistence on a defence of justifcation; and a non-apologetic cross-examination whether the plaintiff was entitled
to both compensatory damages and exemplary damages.
15
FAREWELL MESSAGE
FAREWELL MESSAGE FROM MRS. G. B. SHOLLEI, IMMEDIATE FORMER EDITOR & C.E.O
It was with a heavy heart that in January this year, I informed His Lordship The Hon. Mr.
Justice J.E. Gicheru, EGH, the Chief Justice and Chairman of the National Council for Law
Reporting, that I would be resigning as Editor and C.E.O. of the Council with effect from
March 16, 2010 in order to take up a call to serve our beloved country Kenya as a Deputy
Chief Electoral Offcer in the Interim Independent Electoral Commission (IIEC). Accepting
the call was a most diffcult decision for me particularly because of the very fulflling work
that I have been undertaking at the Secretariat of the National Council Law Reporting with
the guidance and support of His Lordship the Chief Justice, the Board and the members of
staff.
Looking back on my years at Kenya Law Reports, I have witnessed frsthand the growth
of the organization from an archaic paper-based manual system of collection and fling
of judgments to a fully-functioning electronic fling system resulting in a complete and
comprehensive collection and statistical audit of judicial opinions delivered in Kenya and
the launch of eKLR www.kenyalaw.org the frst website in Africa and among a few in
the world to provide the full text of national legislation free of charge.
I was honoured to lead the KLR staff in reviving offcial law reporting in Kenya and in
publishing over 20 volumes of the Kenya Law Reports including specialized Law Reports (Land and Environment, Election
Petitions, Gender and Family), in our effort to bridge a two-decade lapse in offcial law reporting in Kenya. In addition, we
undertook the revision of the Laws of Kenya Grey Book for the frst time in 23 years as well as the digitization and subsequent
publication of all the Laws of Kenya and the Kenya Gazette on the World Wide Web. I have also had the satisfaction of
launching the Kenya Law Review, Kenyas frst offcial law journal and this quarterly journal which I believe continue to
make a valuable contribution to the knowledge and information of judicial offcers and the legal profession in Kenya.
Even more importantly, in 2007, with the support of the Word Bank and the United Kingdom Department for International
Development, the Council established the Bench Research Hotline, a legal research support facility dedicated to judicial
offcers.
From its humble beginnings in 2002, my dream for the NCLR was to have a secretariat that is manned by highly qualifed
personnel serving the Judiciary, the legal community and even the public at large by publishing the Kenya Law Reports
timeously, comprehensively and consistently, and by collecting, organizing and providing easy access to public legal
information. I am glad that my exit from the NCLR comes at a time when I consider that this dream has been realized and
that I have left behind a team of managers and staff that has the knowledge, experience and energy to steer the Council to
even greater heights of achievement.
I leave the NCLR as a strong and focused organization under the able leadership of Mr. Michael Murungi, hitherto the Snr.
Assistant Editor, who I am certain will guide the organization to the next level of excellence in fulflling its mission.
I will nevertheless remain indebted to the Council for giving me, frst, the honour of having the opportunity to revive offcial
law reporting in our country, a nurturing and highly fulflling professional environment and last but not least, personal
interactions that were of great evolutionary beneft to me both socially and professionally. I will have the fondest memories
of my tenure at the Council.
I wish to thank our partners and friends, particularly the German Technical Co-operation (GTZ), the UK Department for
International Development (DFID), the offce of the Resident Legal Representative of the United States Embassy in Nairobi,
the World Bank; the Financial and Legal Sector Technical Assistance Project; all the participating donors of the Governance,
Justice, Law & Order Sector (GJLOS) Reform Programme and all the friends and well-wishers whose support to the Council
made my tenure most worthwhile.
Special thanks go to the Councils valued customers, including the Judiciary, the Law Society of Kenya and its members
and all the individual and corporate customers who are too numerous to mention by name and whose support and patronage
greatly inspired and motivated me. I trust that you will continue to fnd the Councils goods and services most useful and
that the Council will continue to aspire to even greater levels of customer satisfaction.
Last but not least, I thank the members of staff of the Council, whose passion, creativity, team spirit and dedication made it
easy for me to serve the Council and continue to be the driving force of law reporting and access to public legal information
in Kenya.
Thank you all and God bless you.
Gladys Boss Shollei
Mrs. G.B. Shollei
Immediate Former Editor & C.E.O
16
NOTE FROM THE AG. EDITOR
Greetings our dear readers. I join you in bidding farewell to Mrs. Gladys Boss Shollei,
our long-serving Editor and C.E.O. who left the employment of the National Council
for Law Reporting early this year. It was under the pioneering spirit and visionary
leadership of Mrs. Shollei that offcial law reporting was revived in Kenya and the
Council established itself as the fully-fedged semi-autonomous state agency that it is
today. On behalf of the Council, I salute her for her contribution not only to law reporting
per se but in enhancing access to justice and legal information in Kenya.
This bulletin highlights certain judicial opinions delivered towards the end of 2009
and in the frst quarter of 2010. From a law reporting perspective, 2010 promises to
be the year of the overriding objective. The Court of Appeal in Deepak Chamanlal
Kamani & Another V Kenya Anti-corruption Commission & 3 Others [2010] eKLR
had occasion to interpret and apply the overriding objective (namely to facilitate
the just, expeditious, proportionate and affordable resolution) recently introduced
to procedural laws through section 3A of the Appellate Jurisdiction Act (Cap. 8) and
section 1A of the Civil Procedure Act (Cap. 21). The Court has done so in a way that
makes a signifcant departure from previous jurisprudence and arguably defnes a new
approach by the Court in dealing with technicalities of procedure. Earlier in National
Bank of Kenya Ltd v Wilson Ndolo Ayah [2009] eKLR, the Court had dispelled any lingering doubt about the validity of
certain documents executed and actions done by a lawyer who does not have a current practising certifcate. On the other
hand, the High Court, in Republic v Muneer Harron Ismail & 4 others [2010] eKLR , has dealt very substantively with the
constitutional and statutory law issues relating to the delicate balance between the entitlement of an accused person to bail
pending trial against the States need to preserve national security; and in MJBM v VLMNG [2009] eKLR, it lamented at the
modern day absurdity that is the African Christian Marriage and Divorce Act. The High Court has also remarked in Alpha
Knits Limited & 2 Others v Ruiru Municipal Council [2009] eKLR that Kenyan case law is not well settled on whether an
application for leave to institute judicial review proceedings may be heard inter partes. This is only to mention but a few of
the judicial opinions that we have highlighted in this edition.
The Council is also opening new frontiers of collaboration with other government departments. In February, we began the
compilation of a schedule containing pertinent information relating to concluded sexual offence cases with a view to assisting
the Registrar of the High Court in keeping a sex offenders register under the Sexual Offences Act. Secondly, because Judicial
opinions are an important barometer for evaluating the constitutionality, effectiveness, redundancy and utility of statutory
legislation, judicial pronouncements on an aspect of constitutional or statutory law that is in need of reform are an important
driver of the law reform process. As such, the Council isolates judicial opinions containing such pronouncements and to brings
them to the special attention of both the Attorney General, the Law Reform Commission and the Rules Committee constituted
under the Civil Procedure Act, as the case may be.
Plans are underway to secure new and spacious premises for the Council and in keeping with its tradition, the Council has in
its assembly line a number of innovative products tailored to meet your legal information needs. Look out for press releases
on our new products in future editions of this Bulletin.
We remain most thankful for your continued support.
Michael M. Murungi
Submissions

The Editor welcomes your letters and comments, articles as well as researched papers on any aspect of the law.
Publication of submitted material is at the discretion of the Editor and submissions may be edited due to considerations of
space and the Bench Bulletins Editorial Policy. Send your submissions to editor@kenyalaw.org
Michael M. Murungi
Ag. Editor/C.E.O.
AG. EDITORS NOTE
17
UGANDA LAW REPORTS TEAM CONDUCTS BENCH-MARKING TOUR
OF KENYA LAW REPORTS

Members of the Kenya Law Reports (KLR) and the Uganda Law Reports (ULR) editorial teams during the training in
March, 2010. From left to right: Michael Murungi, Ag. Editor, KLR; Mrs. Anne Asugah, Ag. Asst. Editor, KLR; Mr. Bakunzi
Didas, Editor, ULR; Ms. Kawesa Rose, Asst. Editor, ULR; Mr. Nkunyingi Muwada, Editorial Assistant, ULR; Ms. Esther
Nyaiyaki, Ag. Snr. Asst. Editor, KLR and Ms. Monica Achode, Snr. Law Reporter, KLR.
The National Council for Law Reporting (NCLR) continues to consolidate its position as a focal point in law reporting, law
revision and the publication of public legal information in Africa. Every year, the Kenya Law Reports editorial team receives
requests for training and benchmarking tours from various institutions in Africa. The burgeoning repertoire of training
assignments now includes Botswana, Malawi, Liberia and most recently, Uganda.
The NCLR conducted and facilitated the training and bench marking tour of offcials from the Uganda Law Development Centre
(ULDC) that ran from March 8-12, 2010. The ULDC is a state body established in the 1960s through an Act of Parliament
and is vested with the twin mandates of providing post-university legal education and compiling and publishing the Uganda
Law Reports. Offcial law reporting in Uganda, particularly the publication of the Uganda Law Reports Series, has fallen into
arrears owing to certain capacity gaps in the ULDC which are currently being redressed. However, the ULDC has remained
very active in post-graduate and continuing legal education and in the compilation and publication of High Court bulletins.
The ULDC delegation which came for the bench-marking tour was comprised of Mr. Bakunzi Didas, Editor & Head of
Department, Uganda Law Reports; Miss. Kawesa Rose, the Assistant Editor; and Mr. Nkunyingi Muwada, an Editorial
Assistant.
The training was successfully completed and certifcates of participation awarded to the participants. The training covered the
history, establishment and status of the National Council for Law Reporting; the editorial process for the Kenya Law Reports
and the eKLR Website, and the systems and processes applied by the NCLR in the revision and updating of the Laws of
Kenya. The training also involved a tour of the Court of Appeal with a courtesy call on The Hon. Mr. Justice S.E.O. Bosire,
a tour of the Nairobi Law Courts, the NCLR Secretariat and the Kenya School of Law. The tour of the Kenya School of Law
was facilitated by the Mrs. Margaret Muigai, the Assistant Director with briefngs and a tour of the school organized by Mr.
Anthony Munene, an Assistant Director and Mr. Albert Simiyu, a Senior Lecturer.
The Hon. Lady Justice Martha Koome (right), who was a
guest of honour at a farewell event organized for the Uganda
team by the Kenya Law Reports, presents a certifcate of
participation in the training to Ms. Kawesa Rose (left), the
Assistant Editor, Uganda Law Reports.
NCLR A BENCHMARK ON OFFICIAL LAW REPORTING
18
NCLR A BENCHMARK ON OFFICIAL LAW REPORTING
Later, a farewell dinner for the participants was held in which
The Hon. Lady Justice Martha Koome was the guest of
honour fanked by the Registrar of the High Court of Kenya,
Mrs. L. Achode. Mrs. G. Shollei, the immediate former Editor
of the Kenya Law Reports was among the invited guests.
The training was organized and carried out by Mr. Michael
M. Murungi, the Ag. Editor & C.E.O. of the NCLR, Ms.
Esther Onchana, Ag.Snr. Asst. Editor; Ms. Ann Asugah,
Ag. Asst. Editor and Ms. Monica Achode, Senior Law
Reporter.
In his farewell remarks on behalf o the ULDC, Mr. Bakunzi
Didas expressed his thanks and appreciation to the NCLR
for organizing the training, which he described as highly
informative and enlightening. He underlined the ULDCs
recognition that Law Reporting was an indispensable tool
in the administration of justice and commended the NCLR
for establishing itself as one of the leading offcial law
reports and legal information in Africa. He added that the
ULDC would immediately being working on transferring
the knowledge acquired from the bench-marking tour and
applying it towards the establishment of a sustainable and
effcient system of offcial law reporting for Uganda.
The NCLR has previously conducted training on offcial
law reporting for the Federal Supreme Court of Liberia;
the Judiciary of Malawi and for Botswanas Law Reporting
Department in the offce of the Attorney General.
Mr. Michael M. Murungi (standing), from Kenya Law Reports,
makes a presentation before the Chief Justice of Liberia, Mr.
Justice Johhnie Lewis, and Associate Justices of the Supreme
Court of Liberia as part of a World Bank programme on the
revival of offcial law reporting in Liberia at the Liberia Supreme
Court, Monrovia in September 2009.
His Honour Mr. Justice Johnnie N. Lewis
The Chief Justice of Liberia
(From left to right) Mr. Mandala Mambulasa, the C.E.O.
of the Malawi Law Society, Mr. Michael Murungi, then the
Asisstant Editor of the Kenya Law Reports, Mr. Mattheo,
a Law Reporter engaged by the Society and Ms. Chipiliro
Kauka, a Malawi lawyer and the Treasurer of the Society
during a training session on the revival of the Malawi Law
Reports organized by the Open Society Institute (South
Africa Chapter) in Blantyre, Malawi in July 2009.
(From left to right) Mrs. G.B. Shollei, then the Editor of the
Kenya Law Reports, Ms. Tebogo Tombale, a State Counsel
from Botswana and Mr. Michael Murungi, then the Assistant
Editor of the Kenya Law Reports at the conclusion of a
training and bench-marking tour of the National Council for
Law Reporting by Ms. Tebogo in April 2009.
Quote
Only as high as I reach can I grow,
only as far as I seek can I go,
only as deep as I look can I see,
only as much as I dream can I be.
Karen Ravn
19
DEPARTMENTAL REPORTS
KLR EDITORIAL DEPARTMENT
The Editorial Department of the National Council for Law
Reporting (NCLR) is tasked with the mandate of the publication
of the Kenya Law Reports.The editorial staff is aware of the
importance of the content they provide not only to judicial
offcers but to the country at large. As such they discharge
their mandate with integrity, honesty and responsibility while
maintaining their independence as reporters. The Editorial
staff has control over the editorial process from collection
of the Judicial Opinions to their publication, although every
effort is made to make the Kenya Law Reports receptive and
responsive to the views of our customers.
The Editorial Department, in keeping with the overall vision
of Kenya Law Reports aims to provide the latest and most
relevant case law and other legal information with a view to
promoting the teaching and practice of law, the delivery of
justice and the evolution of Kenyas jurisprudence (the study
of the principles of law or of the structure of legal systems and their underlying principles).
The NCLRs Editorial Policy
The NCLR has an Editorial Policy which measures up to the guidelines and standards applied by established law reporting
institutions within the Commonwealth, including, the Incorporated Council of Law Reporting for England and Wales (ICLR)
(the publishers of the Weekly Law Reports and Lexis-Nexis Butterworths (the publishers of the All England Law Reports).
The purpose of the Editorial Policy is to outline the
principles, practices and policies that the Kenya Law
Reports upholds in delivering the highest standards of
editorial integrity. As an editorial content provider, the
NCLR recognizes, respects and adheres to the professional
and ethical conduct acknowledged by both the publishing
industry and our peers in offcial law reporting. NCLR
strives to achieve and support high standards in offcial law
reporting through a commitment to our editorial principles,
practices and process. We adhere to a common set of
professional editorial principles that guide our staff, our
processes and our operations. We maintain an individual
and collective responsibility to uphold these principles
throughout our editorial process.
This Editorial Policy is supplemented by and is read
along with the following guidelines:
The KLR Law Reporters Manual
The KLR Anonymization Guidelines;
The KLR Technical Proof Readers Manual
The KLR Copy Readers Manual
The KLR Final Reading Manual
The KLR In-House Style Guide for Laying out of Judicial Opinions
The Editorial Department is comprised of the Editor, the Senior Law Reporter, Law Reporters and Legal Researchers who
apply themselves diligently to the editorial process for the publication of the Kenya Law Reports.
Mrs. G.B. Shollei, then the Editor of the Kenya Law Reports
(seated left) with the Mr. Craig Rose, the Editor of the All
England Law Reports and their respective editorial staff when
the Kenya Law Reports editorial team toured London, UK, on a
Bench Marking Tour in October 2005
Ms. Monica Achode, Snr. Law Reporter,
Head of Editorial Department
20
NCLR-Judiciary Collaboration in the Compilation of the Sex Offenders Register
A screen grab of a record of convictions for sexual offences prepared by the NCLR towards the
compilation of a sex-offenders register.
Regulation 7 of the Sexual offences Regulations 2008, mandates the Registrar of the High Court to maintain a register of
convicted sexual offenders. The said regulation requires the following information regarding a sexual offender to be entered;
the name(s) of the sexual offender and alias(es), date of birth, place of birth, nationality, physical address at the time of
the offence and any other domiciles, the offence with which charged, the sentence entered by the trial court, the date(s) of
conviction and any sentence(s) imposed, the sentence entered on reversal or enhancement, the age of victim(s) in the sexual
offence in question, previous convictions entered against the convict under the Act or related penal laws, the relationship
between the convict and the victim, if any, including information as to whether there was a position of trust, brief particulars
of the offence as well as the circumstances under which the offence was committed and whether the sexual offender has been
declared dangerous by a court of law.
As law reporters the KLR editorial Staff come across judgments which disclose some of the aforesaid information. NCLR
therefore considered that it was it was its civic responsibility to assist the Registrar in compiling the Sexual Offenders
Register. Beginning February, 2010, the NCLR has been compiling a register of convictions for sexual offences for onward
transmission to the Registrar.
The Gender Based Violence (GBV) Case Digest Project
The National Council for Law Reporting (NCLR), through the assistance of the German Technical Co-operations (GTZ)
Good Governance Support Project and the Gender Based Violence and Human Rights Component of GTZs Health Program
is participating in a project for the publication of a compendium of judicial decisions on gender-based violence (GBV). The
outcome of this project will provide a better overview of the jurisprudence of GBV cases in Kenya by highlighting issues
and concerns surrounding access to justice for GBV victims. This will in turn form part of the basis for the development
of appropriate policy, legal and administrative interventions for access to justice. NCLRs role in this project is to apply its
resources and vast expertise in law reporting by selecting and analyzing judicial opinions on GBV and abstracting from them
the principles of law and their manner of application in order to contribute to knowledge in this area and inform the debate
improving access to justice for GBV victims.
Quote
The paradox of our time in history is that we have taller buildings but shorter tempers, wider
Freeways , but narrower viewpoints. We spend more, but have less, we buy more, but enjoy less. We
have bigger houses and smaller families, more conveniences, but less time. We have more degrees but
less sense, more knowledge, but less judgment, more experts, yet more problems, more medicine, but
less wellness
George Calin
21
THE ICT DEPARTMENT
The launch of the Kenya Law Reports website www.kenyalaw.org in 2004
transformed traditional law reporting and the way legal research is now
conducted in Kenya. The website which initially housed only the electronic
format of judicial decisions emanating from the High Court and the Court of
Appeal now consists of segments with up-to-date Laws of Kenya, a database
of specialized law reports, legal notices and the Kenya Gazette, the cause
lists for various courts and articles and commentaries. The 2009 Google
Zeitgeist rated the website content Kenya Law as one of the most popular
online topics and the KLR website ranks top in the listing of search results
on legal issues on Kenya.
The ICT department was and continues to be instrumental in the creation of
this online legal resource centre. The department is primarily responsible for
building, updating and maintenance of the website to the highest possible
quality standards and implementing Councils IT policy on web and system
development.
From its inception, the department has attracted a vibrant and innovative
team which has pioneered ICT solutions geared towards not only enhancing
accessibility of legal information online but solutions aimed at aiding the administration of justice in the Judiciary. In the recent
past the ICT department has facilitated the piloting of projects such as digital audio recording and the case track project. The
teams is comprised of Mr. Martin Mbui (Asst. System Administrator), Mr. Lameck Oyare and Mr. Michael Mayaka (Web
Developers).
To enhance the Councils in-house workfow productivity, corporate knowledge management, communication and collaboration
the department is in the fnal stages of developing the National Council for Law Reporting Document Management System
(NCLR DMS) which will aid the effective tracking and storing of various forms of electronic documents. As an illustration,
through the said system, the life cycle of a judicial opinion can be tracked from the time it is delivered and collected from
the courts to its publication into book format or on the website. Deployment of the NCLR DMS will therefore translate into
our users being able to access case law and other legal information in a timely manner and the creation of a legal knowledge
repository.
Kenya Law Reports membership to the Free Access to Law Movement
Kenya Law Reports joined the Free Access to Law Movement (FALM) in 2007. FALM is an umbrella body for the collective
legal projects across several common law countries providing free online access to legal information such as case law and
legislation. The members subscribe to the principles of the Montreal Declaration which provides that public legal information
is digital common property and should be accessible to all on a non-proft basis and free of charge.
One of the frst recorded FALM projects is Cornells Legal Information Institute (LII), launched in 1992. The LII model of
the FALM projects quickly inspired similar initiatives in Canada (CanLII) and Australia (AustLII). In 2003, the Montreal
Declaration on Free Access to Law was signed by eight LIIs and other FAL projects. Today, over 30 projects subscribe to the
principles of the Montreal Declaration and are formal members of FALM. In the spirit of FALM, all the content on the Kenya
Law Reports website has been available for free access instead of its previous subscription basis following its membership
in the Free Access to Law Movement.
Kenya Law Reports now on Facebook and Youtube
The Kenya Law Reports can now be found on the Youtube and Facebook social networking websites. To join us on Facebook
all you have to do is log into your Facebook account and join the Kenya Law Reports group. Members receive scoops on the
latest landmark pronouncements by the High Court and the Court of Appeal through the weekly newsletter. Connect with
Kenya Law Reports group members (in their hundreds and growing) and keep yourself up-to-date on the recent Bills published
and laws passed by Parliament. Feel free to send us feedback on our Facebook Wall or start discussions on any legal topic.
Ms. Esther Nyaiyaki, Ag. Snr. Assistant Editor,
Head of Online Publishing Department
22
A screen grab of The Kenya Law Reports profle on the popular social network website, Facebook.
The Kenya Law Reports Group is attracting a lot of membership
A screen grab of The Kenya Law Reports informercial video running on the KLR
profle on the popular video-sharing website, Youtube
The profle address is www.youtube.com/kenyalawreports
23
RESEARCH AND DEVELOPMENT DEPARTMENT
The Bench Research Hotline (BRH) is the fagship service
of the Research and Development.It was established in April
2007 and it comprises of designated legal researchers who
provide legal research support to Judicial Offcers. The
BRH has an automated system of receiving, processing
and responding to requests for information from Judicial
Offcers. The facility takes advantage of its library, the
Kenya Law Reports website (www.kenyalaw.org), other
online legal resources, case law, statute law, journals,
and encyclopedic data to generate feedback that is fully
responsive to the information enquiries submitted by
Judicial Offcers. In 2010, the BRH has received and
processed numerous requests for information of varying
range.
The BRH was established with the support of the Financial
and Legal Sector Technical Assistance Project (FLSTAP),
a capacity building programme co-funded by the World Bank and the United Kingdoms Department for International
Development (DFID) and administered through the Ministry of Finance.
Apart from processing information enquiries for judicial offcers, the Department also provides legal research support to the
Editorial Department of the Kenya Law Reports particularly in research and development and in identifying vexing issues of
law regarding the development of Kenyan jurisprudence. This has been key in helping to guide the editorial process for the
Kenya Law Review, Kenyas offcial law journal, by inviting scholarly articles and commentary on the vexing questions of
law. Most recently, the BRH has identifed the following vexing or novel issues for Kenyan jurisprudence:
The effect of a statutory provision that is declared to be unconstitutional
A pertinent issue of note is the effect of a section of a law that has been declared unconstitutional by the Court of Appeal or
the High Court but which nevertheless remains in the statute books until it is repealed or amended by Parliament. Between
the time that the provision is declared unconstitutional and its repeal or amendment, what force of law is it to be regarded to
have by judicial offcers and the public and what is the legal consequence of actions taken in reliance of such a provision?
For instance, most recently, in Law Society of Kenya v Attorney-General [2009] eKLR, the High Court declared certain
provisions of the Workmans Compensation Act as unconstitutional and illegal.
The overriding objective of procedurals laws
Through Act No. 6 of 2009, sections 3A and 1A were introduced to the Appellate Jurisdiction Act (Cap. 9) and the Civil
Procedure Act (Cap. 21) respectively to provide that the objective of the Acts and the rules made under them was to facilitate
the just, expeditious, proportionate and affordable resolution of matters coming before them and that it is the duty of the
Courts, in the exercise of their powers, and parties and litigants, in their appearance before the Courts, to give effect to this
objective.
Already, the Courts have had numerous occasions to interpret and apply the overriding objective. See for instance the Court of
Appeal in Deepak Chamanlal Kamani & Another v Kenya Anti-Corruption Commission [2010] eKLR (featured in the Court
of Appeal segment of this bulleting), Miwani Sugar Mills Limited & Another v Nagendra Saxena & 2 Others [2010] eKLR
and John Gakure & 148 Others v Dawa Pharmaceutical Co. Ltd. & 7 Others [2010] eKLR & 3 Others [2010] eKLR).
The interpretation and application of the overriding objectives promises to bring a fundamental departure from previous
jurisprudence on technicalities of procedures and conduct amounting to abuse of the court process.
Breach of an accused persons Fundemental Rights
Where the constitutional right of an accused person not to be held in custody for a prolonged period before his
frst arraignment in court has been violated, is he entitled to be released regardless of the strength of evidence
against his case?
Mr. Nicholas Okemwa, Snr. Law Reporter,
Head of R & D Department
24
Under Section 72(3) of the Constitution, a person who is
arrested upon reasonable suspicion of his having committed
or being about to commit a criminal offence shall be brought
before a court as soon as is reasonably practicable. The
reasonable time is within twenty-four hours of his arrest
or fourteen days where the arrest relates to an offence
punishable by death (eg murder, robbery with violence,
treason). In all cases where an allegation of violation of
this provision arises, the Constitution places the burden
on the prosecution to establish that the time within which
the accused was brought to court was the most reasonably
practicable time in the circumstances.
In Morris Ngacha Njuguna & 3 others vs. Republic Criminal
Appeal No. 232 of 2006, the Court of Appeal had noted that
if the appellant felt that his rights under the constitution had
been violated, the best course of action would have been
to fle an appropriate application under the Constitution to
enable the relevant court to investigate the issue. The issue
having neither been raised in the trial court nor in High Court
on the frst appeal, there was no suffcient material before
the Court of Appeal on which it could investigate the issue
and make a decision. Therefore, it could not be said that the
appellants rights under section 72(3) of the constitution
were breached.
Later, the Court of Appeal in Alex Wafula v Republic [2009]
eKLR, while concurring with the reasoning in Morris Ngacha
Njuguna v Republic, noted:
the consequences of breach of the constitutional right
to personal liberty, where established, are now too well
established in the various authorities which have dealt with
the issue, to be overthrown by side-wind. Each case will stand
or fall on its peculiar facts and circumstances and the issue
in this case is whether the breach was established.
In the circumstances of that case, the Court observed, the
issue was not ventilated timeously and effectively and there
was no suffcient material for the Court to consider it.
In Albanus Mwasia Mutua v Republic [2006] eKLR, where
there had been a delay of about eight months in bringing the
accused person to court, the Court of Appeal, while admitting
that the issue had caused it some considerable thought and
anxiety, held that there had been a gross violation of the
appellants constitutional rights to liberty and fair trial and
that an unexplained violation of a constitutional right will
normally result in an acquittal irrespective of the nature and
strength of the evidence which may be adduced in support
of the charge.
Later in Martin Omollo Odongo v Republic [2009] eKLR,
the Court observed that the appellants had been before the
High Court which is a constitutional court where the issue
could have been raised. If they had raised it the prosecution
would have investigated and given an explanation for the
delay. The Court found that section 84(1) of the Constitution
fully answered the issue as it entitled a person who alleges
that his constitutional rights had been violated to apply to
the High Court for redress.
In Gabriel Wanyenji Kuria & another v Republic [2009]
eKLR the Court followed its earlier decision in James
Githui Waithaka v Republic Criminal Appeal No. 115 of
2007 and held that because the two appellants had all along
been represented by counsel in the High Court, which was
the countrys constitutional court and where they did not
raise the issue, they had to have been held to have waived
their right to complain against any alleged violation of their
constitutional rights.
Most recently in February this year, the Court in Eunice
Kalama Jabu v Republic [2010] eKLR observed that the
delay may very well have been a matter of a few hours if the
court was to consider that the time of arrest was not stated.
Considering the nature of the offence and the fact that the
delay period was negligible, the Court saw no merit in the
issue as a ground of appeal. The Court added that if the
appellant felt offended by the delay, she still had the option
of challenging it under section 84 of the Constitution.
The position established by the various authorities then
appears to be that captured in Charles Chacha Sasi v Republic
[2008] eKLR (recently applied in Lydiah Njeri Mbara v
Republic [2010] eKLR) that no single decision of the Court
of Appeal has prescribed a rule of thumb concerning with
section 72(3) and that each case will depend on its own
unique circumstances.
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.
Can applications for leave to apply for a judicial review
remedy be heard inter partes?

Whereas the law provides that an application for leave to
institute judicial review proceedings is to be made ex parte,
must it also be heard ex parte or does the Court have a
discretion to order an inter partes hearing? This issue was
raised by the High Court in Alpha Knits Limited & 2
Others v Ruiru Municipal Council [2009] eKLR and
has been discussed in the Law Reform segment of this
Bulletin.
Dual citizenship
It has been commonly perceived that a Kenyan cannot hold
dual citizenship and that the Constitution did not favour
dual citizenship. However, the High Court in Mahamud
Muhumed Sirat v Ali Hassan Abdirahman & 2 Others [2010]
eKLR held that a person born in Kenya can only lose his/
her citizenship through renunciation and not automatically
through the acquisition of the citizenship of another country,
effectively directing the scholarly and public debate on this
issue to a new direction.
The BRH looks forward to the next quarter of 2010 and
wishes the legal fraternity all the best in the coming days.
Additional Reporting by; Michael M. Murungi
25
LAWS OF KENYA DEPARTMENT
The Laws of Kenya Department (LOK) is a Department
within The National Council for Law Reporting (NCLR)
charged wi t h t he mandat e of t he cont i nuous
comprehensive revision and updating of the Laws of
Kenya both in electronic and print form. The Laws of
Kenya Department came into being in early 2008 after
the Attorney General delegated the mandate of law
revision to NCLR. With the delegation, NCLR added a
feather to its cap of consolidating the law by
incorporating amendments and subsidiary legislation to
existing legislation.
The Department has four members of staff though
it is complemented by members of staff from other
departments of the NCLR to bring to eleven the total
count of staff who work for it. It is headed by a Head of
Department, a Legal Researcher, three Copy Readers,
four Layout assistants and two Data Entry Personnel.
Departmental functions
The comprehensive revision and updating of all the laws of Kenya in both electronic and print form.
Keeping track of Bills, Legal Notices and Acts of Parliament, and updating them on the NCLR website
www.kenyalaw.org.
Manage, organizing and administing an index of all amendments to the Laws of Kenya in both hard and soft copy.
Liaising with the Attorney Generals offce in matters relating to the revision of
the Laws of Kenya.
Facilitating public access to revised laws, legal notices and other relevant legal
information.
The Department has so far revised over 100 statutes comprising of laws dealing
with specialized sectors such as procedural law, gender and family, public fnance,
commercial statutes as well as electoral law. These statutes may be accessed and
downloaded on PDF format free of any charges from the NCLR website www.
kenyalaw.org.
Besides law revision, the department keeps track of Bills and newly enacted Acts of
Parliament. A total of fve bills in the year 2010 have been uploaded, namely: The
Local Government (Amendment) Bill, Witness Protection (Amendment) Bill, 2010,
Indemnity (Repeal) Bill, Prevention of Organised Crime Bill and Counter Traffcking
in Persons Bill. Make sure to update yourself on new subsidiary legislation on our
website at the Legal Notices tab.
Current Undertakings
1. The publication of the Laws of Kenya on CD-ROM;
2. Improve accessibility of the Laws of Kenya to all Kenyans particularly to those with disabilities, the poor and those
living in marginalized areas.
3. Strengthen partnerships with Government departments; Judiciary, State
Law Offce, Kenya Law Reform Commission, Government Printer and
other stakeholders.
4. To develop capacity and institutionalize the framework for the continuous revision of the Laws of Kenya
5. Automate all the work fow processes of the revision process in conjunction with the Attorney Generals Offce
and Government Printer.
Mrs. Anne Asugah, Ag. Assistant Editor
Head of Department, Laws of Kenya
26 Issue 11: January-March 2010
FEATURE CASE THE LEGALITY OF AN ELECTRONIC DOCUMENT
Legality of Electronic Documents: Scanned Document
Not an Original
Republic v Public Procurement Administrative Review Board Ex-parte Kenya Medical Supply Agency & 3 others
[2010] eKLR
High Court at Nairobi (Nairobi Law Courts)
Jeanne Gacheche, J.
March 4 2010
Reported by Michael M. Murungi*
The High Court of Kenya has held that a scanned document may not be regarded as an original for the purposes of the Public
Procurement and Disposal Act, 2005 particularly where in its guidelines to potential bidders, a procuring entity requires the
submission of original documents. In an application to review the decision of the Procurement Review and Appeals Board
in which the Board had applied a recently enacted law recognising the legality of electronic documents and the originality
of documents rendered in electronic form, the High Court reversed the Boards decision and excluded the application of the
new electronic documents law from the Procurement Act.
This case was probably the frst defnitive judicial test for the newly enacted provisions of the Kenya Information and
Communications Act, 1998 (formerly the Kenya Communications Act, 1998) regarding the recognition of electronic documents.
One of the aims of the amendments, which were introduced through the Kenya Communications (Amendment) Act, 2008
and which came into force on January 2, 2009, was to eliminate legal uncertainties as to the validity of electronic documents,
electronic signatures and electronic transactions.
This case was probably the frst defnitive judicial test for the newly enacted provisions of the Kenya
Information and Communications Act, 1998 (formerly the Kenya Communications Act, 1998)
Statutory Interpretation
The decision highlights what may be an awkward dilemma for legislative drafting and statutory interpretation: Where one Act
of Parliament excludes the application of any other Act in the interpretation of its provisions and a later Act makes provisions
of a general nature to be applied in the interpretation of all other Acts, how is the apparent confict between the two Acts to be
resolved. While the section 5 of the Public Procurement and Disposal Act, 2005 provides that where there is a confict between
the Act or the regulations made under it and any other Act in matters relating to procurement and disposal, the Procurement
Act and its regulations are to prevail, the provisions of the Kenya Information and Communications Act, 1998 recognizing
the legality of electronic documents and electronic originals is to apply to all Acts of Parliament, particularly to those that
contain provisions providing for documents to be in writing.
Legal recognition of electronic records and electronic originals
One of the new provisions enacted through the Kenya Communications (Amendment) Act of 2008 was section 83G which
was inserted in the Kenya Information and Communications Act, 1998. The section provides:
Where any law provides that information or other matter shall be in writing then, notwithstanding anything contained in such
law, such requirement shall be deemed to have been satisfed if such information or matter is:-
(a) rendered or made available in an electronic form; and
(b) accessible so as to be usable for a subsequent reference.
This provision expressly recognizes the legality of electronic documents and extends its application to other Acts of Parliament
providing for any matter or document to be done in writing.
A new section 83i of the Act provides:
Where any law requires information to be presented or retained in its original form, that requirement is met by an electronic
record if:
(a) there exists a reliable assurance as to the integrity of the information from the time when it was frst generated in its fnal
form as an electronic message or otherwise; and
(b) where it is required that information be presented, that information is capable of being displayed to the person to whom
it is to be presented.
For the purposes of paragraph 1(a), it is further provided that the criteria for assessing the integrity of the information shall
be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any
27
change which arises in the normal course of communication, storage and display; and further, that the standard of reliability
required shall be assessed in the light of the purpose for which the information was generated and in light of all the relevant
circumstances.
This provision expressly recognizes that a document may, subject to the conditions specifed, be deemed to be an original even
if it does not exist in paper form and where it is merely an electronic abstraction or representation of a paper document.
However, the confict between these provisions and the Public Procurement and Disposal Act, 2005 was thrown into relief
when a dispute over the procedure followed in the procurement of HIV-AIDS drugs by the government came to the courts.
The dispute
In March of 2009, a consortium of agencies and frms involved in procurement and supply chain management comprised of
the Kenya Medical Supply Agency (KEMSA), Crown Agents, the agency for German Technical Co-operation (GTZ) and
John Snow Inc. advertised a tender for the supply of anti-retroviral drugs on behalf of Kenyas Ministry of Health. Among
other requirements, the Instructions to Tenderers provided that bidders were to submit an original and copies of their
bidding documents, including a price schedule, and that in the event of any discrepancy between them, the original shall
govern. It was further provided that the original and all copies of tender documents were to be typed or written in indelible
ink and . signed by the tenderer.
After considering the arguments of both Hetero and the consortium, the Board relied on section 83G of the Kenya
Information & Communications Act, 1998 to fnd that Heteros price schedule was acceptable as an original even though
it was a scanned copy
One of the bidders for the supply of the drugs was Hetero Drugs Ltd. In the evaluation of the tender documents for all the
bidders, the consortium declared Heteros bid non-responsive ostensibly because it had contravened the Instructions to Tenderers
by submitting a scanned copy of a price schedule instead of an original document. Heteros bid was therefore disqualifed
at the preliminary stage and ultimately, the tender was awarded to three pharmaceutical companies.
Hetero moved to the Public Procurement Administrative Review Board, a statutory body established to deal with complaints
from parties to a public procurement process. After considering the arguments of both Hetero and the consortium, the Board
relied on section 83G of the Kenya Information & Communications Act, 1998 to fnd that Heteros price schedule was acceptable
as an original even though it was a scanned copy. The Board decided in favour of Hetero and ordered the consortium admit
Heteros bid and also to carry out a fresh evaluation of all the tenders.
The consortium then fled judicial review proceedings in the High Court challenging the decision of the Board. The consortiums
argument was that whereas section 83G of the Kenya Information and Communications Act provided for situations where
the law required that information be submitted in writing, the requirement in this case was not contained in a law but in
bidding guidelines.
The [Board] failed to appreciate that the effect of its decision is to give tenderers the liberty to submit copies of documents
where originals are required therefore making it impossible for procuring entities to establish the authenticity of documents.
The entire purpose of the Public Procurement and Disposal Act which is to make public procurement a fair, transparent and
accountable process will be defeated if tenderers are allowed to submit copies of documents instead of originals.
The Board also relied on section 5 of the Public Procurement and Disposal Act, which provided that if there was a confict
between the Act or the regulations thereunder and any other Act or regulations in matters relating to procurement and disposal,
the Act or the regulations shall prevail.
The defnitive question before the High Court then became: Does a scanned document qualify as an original document for
purposes of the tender and generally, for purposes of the Public Procurement and Disposal Act?
The decision of the High Court
Lady Justice J. Gacheche, who presided over the judicial review application, made the following holdings:
Under the Public Procurement and Disposal Regulations 47 and 48 made under the Public Procurement and Disposal Act, it
is a mandatory requirement that tenders are to be submitted in the required format and that a procuring entity is to reject
all tenders which are not responsive. Under section 64 of the Act, a tender is responsive if it conforms to all the mandatory
requirements set out in the tender documents.
Though the Court noted the proviso to section 64 which provided that minor deviations that do not materially depart from
the requirements set out in the tender documents would not render the tender non-responsive, the requirements that the bids
should be compliant were mandatory and to be fulflled to the letter. One of such requirements was that the tender was to be
submitted in the required format.
Issue 11: January-March 2010 28
The Public Procurement and Disposal Act did not cater for matters pertaining to e-procurement yet the copy that the Board
attempted to admit was a scanned copy instead of the original.
The Kenya Information and Communications Act section 83G was a direct contradiction of the requirement in the Instructions
to Tenderers prepared by the consortium that bidders were to prepare an original and to clearly mark the original bid documents
and the copies. The Public Procurement and Disposal Act prevailed over the Kenya Information and Communications Act in
matters pertaining to public procurement and disposal.
The Board had no jurisdiction to waive the obvious mandatory statutory requirements. It had exceeded its jurisdiction in dealing
with issues that were not pleaded before it and in doing so, it had reached a wrong conclusion. Its decision was ultra vires.
Application allowed, order of certiorari issued quashing the decision of the Procurement Review and Appeals Board.
The advocates for the various parties in the litigation were: Miss Malik for the applicant (the Consortium); Mr. A. Ombwayo
for the frst respondent (The Review and Appeals Board); Dr. Muma for the frst interested party (Hetero) and Mr. Nguli for
the second and third interested parties (Lords Health Care Ltd and Ranbaxy Laboratory Ltd).
*The author is the Ag. Editor of the Kenya Law Reports and an expert on ICT law.
____________________________________
FROM THE COURTS COURT OF APPEAL
Reporting by: Esther Nyaiyaki, Monica Achode, Njeri Githanga Kamau & Nelson Tunoi
Meaning of stay of further proceedings in the Court of Appeal Rules
Republic v Kenya Anti-Corruption Commission, Kibera Senior Principal Magistrates Court & Attorney General
Civil Appli 51 of 2008
Court of Appeal at Nairobi
P.K. Tunoi, E.M. Githinji & P.N. Waki JJ.A
February 20, 2009
Civil Practice and Procedure - stay of proceedings - application for stay of proceedings pending
appeal applicants duty to establish that the intended appeal was arguable and that unless a
stay was granted, the success of the appeal would be rendered nugatory principles that guide
the court in granting an order for stay of proceedings pending appeal - jurisdiction - Court of
Appeals jurisdiction in such an application -whether the Court of Appeal had jurisdiction to
stay criminal proceedings in the magistrates court which did not form part of the substantive
appeal before the Court.
Statutes interpretation of statutes interpretation and construction of rule 5 (2) (b) of the
Court of Appeal Rules meaning of the phrase stay of further proceedings whether it refers
to criminal proceedings or civil proceedings - Court of Appeal Rules rule 5(2) (b).
The applicant had fled a judicial review proceedings in the High Court seeking to remove
into the court and quash the decision of the 3
rd
respondent purporting to charge him with the
offence of abuse of offce contrary to section 46 of the Anti Corruption and Economic Crimes Act (Cap 65) and to prohibit
the 3
rd
respondent from hearing the criminal case .The applicant also sought an order that the grant of leave to apply for the
prohibition order do operate as stay of the criminal case, until the hearing and determination of the appeal. The High Court
dismissed his application.
The applicant thereafter lodged an appeal against the decision of the High Court and moved the Court of Appeal under rule
5(2) (b) of the Court of Appeal Rules for an order of stay of the criminal proceedings pending the hearing and determination
of the appeal.
It was the applicants submission that the appeal was arguable on the ground that the decision to charge the applicant with
the offence of abuse of offce under the Anti-Corruption and Economic Crimes Act (Cap 65) violated his personal immunity
guaranteed under section 87 of the Local Government Act (Cap 265), arguing that the said decision was actuated by malice,
was oppressive and unreasonable in the circumstances. He further submitted that the Court had failed to pronounce a decision
on those issues, stressing that if the Court of Appeal did not intervene before the appeal was heard and determined, the trial
in the Magistrates Court may commence and the applicant may be convicted and may start serving a jail term thereby being
deprived of his liberty and thus, the success of his appeal could be rendered nugatory.
The respondents in opposition to the application submitted that the application should be declined as the applicant had not
demonstrated that his appeal was arguable. It was submitted that the intended appeal had no merit arguing that matters the subject
of the intended appeal should be raised as defences at the trial and that stay was not necessary as the trial had not commenced
and was unlikely to be concluded before the appeal was heard. The respondents further submitted that the application for stay
of criminal proceedings was incompetent as it was brought under Rule 5 (2) (b) which dealt with civil proceedings.
The Court of Appeal suo motu raised the issue of its jurisdiction to grant of an order for prohibition in a criminal case against
the Magistrates Court pending appeal.
Held:
1. The law as regards the principles that guide the Court of Appeal in an application brought pursuant to rule 5(2) (b) of
the Court of Appeal Rules were well settled. The Court exercises unfettered discretion which must be exercised judicially.
The applicant needed to satisfy the Court frst, that the appeal or intended appeal was not frivolous, that is to say that it was
an arguable appeal. Secondly, the Court must also be persuaded that were it to dismiss the application for stay and later the
appeal or intended appeal succeeds, the results or the success could be rendered nugatory. In order that the applicant may
succeed, he must demonstrate both limbs and demonstrating only one limb would not avail him the order sought if he failed
to demonstrate the other limb
2. The setting aside of the dismissal order of the judicial review application of the High Court by the Court of Appeal, could
only be done after the pending appeal had been heard and determined. It must follow therefore that in the circumstances an
order of stay of execution of the dismissed application could not be granted. Equally so, an order of injunction could not be
issued because the High Court had already acted and dismissed the application.
The Hon. Mr. Justice
P. K. Tunoi
3. As rule 5 (2) (b) of the Court of Appeal Rules clearly makes reference to any civil proceedings and any further proceedings
on such terms as the court may think just, it would therefore follow that if there were no proceedings of a civil nature in the
High Court then the Court of Appeal could not issue orders of stay in vain. That meant that the Court of Appeal would not
have jurisdiction to issue orders of stay of proceedings where the proceedings were non-existent.
4. Whether the Court of Appeal under rule 5 (2) (b) of the Court of Appeal Rules had jurisdiction to stay criminal proceedings
in the Magistrates Court, which proceedings did not form part of the substantive appeal before the Court, it would appear
logical to say that the Court could do so if petitioned on time to stay the order and or decree of the High Court which would
in turn have the effect of staying the criminal proceedings in the High Court. Further, as to whether it could do so or not
depends on the particular circumstances of each case and especially what exactly the applicant was asking the Court to do
and how the Court was approached.
Per Githinji J.A (Dissenting)
1. To get the true construction of Rule 5 (2) (b), the phrase, stay of further proceedings,
must be read ejusdem generis to the preceding phrase, in any civil proceedings where a
notice of appeal had been lodged in accordance with rule 74, order a stay of execution, an
injunction or a stay of any further proceedings on such terms as the Court may think just.
By Rule 74 as read with Rule 73, a notice of appeal lodged under Rule 74 must relate to an
appeal from the High Court acting in the original or appellate jurisdiction in civil cases.
2. The jurisdiction of the Court of Appeal under Rule 5 (2) (b) was restricted to decisions
made in Civil Proceedings and the reliefs sought must relate to the decision of the High Court
in its original or appellate jurisdiction. In the light of the foregoing the true construction
of the phrase stay of further proceedings in the context of Rule 5 (2) (b) was that the
phrase meant stay of continuation of civil proceedings pending in the High Court pending
appeal from the impugned decision.
3. The application was outside the scope of rules 5 (2) (b) of the Court of Appeal Rules
and the Court had no jurisdiction under that rule to grant the stay in the terms sought. The
application was grossly incompetent. That was not to say that the Court cannot in exercise
of its inherent jurisdiction under Rule 1 (3) of the Court of Appeal Rules grant any orders as may be necessary for the ends
of justice. However the applicant had not invoked the inherent jurisdiction of the court.
4. The order of prohibition as it was known in judicial review was a term of art. The purpose of an order of prohibition
was to prohibit a public body from acting unlawfully. It can issue against a Magistrate in respect of criminal proceedings
pending in court if among other things, it was claimed and demonstrated that the magistrate was acting without or in excess
of jurisdiction or the accused would be denied due process.
5. The test of whether the success of the intended appeal would be rendered nugatory unless a stay was granted, was not
appropriate in the circumstances of the case where the applicant in effect sought a stay of prosecution. It would be against
public policy or public interest to halt or paralyze the prosecution of a person suspected to have committed a crime unless
there were good reasons for doing so.
6. The applicant did not allege or demonstrate in the application for judicial review that the Magistrate had no jurisdiction to
try him or that due process would not be observed at the trial or that he would not get a fair trial. Further, the grounds on which
the application for judicial review was based could be raised as defences at the trial as the High Court found. Therefore, if the
trial proceeded the applicant would be afforded an opportunity of advancing the matters he intended to raise in the appeal.
7. There was no certainty that if the criminal trial proceeded the applicant would be convicted. If he was ultimately convicted
he could resort to an appeal to ensure that justice was done. In those circumstances it would be a blot in the criminal justice
system to stay the criminal proceedings in the Magistrates Court.
Application allowed.
Evidence of a Single Child Witness
John Patrick Kibet v Republic
Criminal Appeal No. 125 of 2007
Court of Appeal at Eldoret
P.K. Tunoi, D.K.S. Aganyanya & J. Aluoch. JJ A
February 27, 2009
Evidence-criminal evidence-medical evidence- medical examination for the presence of spermatozoa conducted fve days
after deflement- whether such evidence was credible.
Evidence-child evidence - sexual offence where the only evidence was that of a child of tender years, who was the alleged
victim-how a trial court should receive such evidence-Evidence Act section 125
E. M. Githinji
31
The appellant was arraigned before the Kitale Senior Principal Magistrates Court on a charge of deflement of a girl under
the age of 16 years contrary to Section 145 (1) of the Penal Code (Cap 63). He was found guilty and was sentenced to life
imprisonment with hard labour.
Being aggrieved by the decision, he appealed to the High Court which substituted the sentence with imprisonment for 25
years with hard labour. Still dissatisfed, the appellant preferred a second appeal.
It was the appellants submission that the complainants sister who was said to have been in his house at the time of the offence
was not called as a witness .It was further submitted, that the Magistrates Court and the High Court did not consider the fact
that the evidence of the vaginal swab specimen did not show the presence of spermatozoa to confrm intercourse.
The State in opposition to the appeal, argued that the complainants evidence was supported by that of her mother, who found
her locked in the house with the appellant and that the offence of deflement was corroborated by the evidence of the clinical
offcer who had examined the complainant.
Held
1. Though the complainants sister who was with her in the appellants house at the time of the alleged offence, did not give
evidence, the trial Magistrate was entitled to rely on the evidence of the complainant child if she was satisfed that the child
was telling the truth.
Appeal dismissed.
Inspection of Documents in an Election Petition
William Kabogo Gitau v George Thuo
Civil Appeal 126 of 2008
Court of Appeal, at Nairobi
P. K. Tunoi, E. M. Githinji & P. N. Waki JJ A
March 20, 2009
Election petition - procedure - procedure for inspection of documents in an election
petition -appeal against an order of the High Court upholding a preliminary objection to an
application for leave to inspect documents High Courts discretion to sanction inspection
of documents jurisdiction of the Election Court circumscribed by the Constitution, the
National Assembly and the Presidential Elections Act and by the Election Petition Rules -
whether regulation 42 of the National Assembly and Presidential Election Regulations was
applicable after the fling of a petition and after the constitution of the election court.
Civil practice and procedure - preliminary objection nature of preliminary objection
-preliminary objection must raise pure points of law and not general grounds raised
to oppose the application on its merits - National Assembly and Presidential Election
Regulations rule 42.
The appellant fled a notice of motion under Part VII, Rule 42 of the National Assembly
and Presidential Election Regulations for leave to inspect a register of electors, certain
election forms, the reports of Presiding Offcers, the Returning Offcer and other election
offcials and documents in ballot boxes relating to the Parliamentary Election for Juja
Constituency in the 2007 General Elections
The 1st respondent challenged the application by a notice of preliminary objection raising among other grounds, that the
application offended the express and implied provision of inter alia, Rule 19 of the National Assembly and Presidential
Elections (Election Petition Rules) and was, to that extent, misconceived incompetent and fatally defective
The High Court upheld the preliminary objection to the appellants application for leave to inspect documents and struck out
the application with costs thereby precipitating this appeal.
On appeal it was submitted by the appellants counsel that the appellant applied for permission to inspect as provided by
Regulation 42 of the National Assembly and Presidential Election Regulations and that it was a major error of law for the
High Court to have found that he should be held to his bargain that Regulation 42 did not apply.
P. N. Waki
Held:
1. It was settled law that a preliminary objection raised a pure point of law which was argued on the assumption that all the
facts pleaded by the opposite side were correct and that it cannot be raised if any fact had to be ascertained.
2. The stipulation in Regulation 42 (2) of the National Assembly and Presidential Election Regulation that any person was
free to make an application for authority to inspect documents, except ballot papers and their counterfoils in the High Court
with notice to all candidates concerned and the stipulation in Regulation 42 (3) that the inspection, if authority was granted by
the High Court, should be done under the supervision of the returning offcer implicitly indicated that Regulation 42 catered
for inspection before an election petition was instituted and before the election court was constituted, that is, pre-petition
inspection. If regulation 42 was also intended to apply to postpetition inspection it could have restricted the persons who
should apply for authority to inspect to the parties to the election petition and could also have provided that the inspection
should be done either under the supervision of the court or Registrar.
3. The jurisdiction of the Election Court was circumscribed by the Constitution, the National Assembly and Presidential
Elections Act and by the Election Petition Rules, 1993. It was thus obvious that Regulation 42 did not apply after the fling
of a petition and after the constitution of the election court and could not confer jurisdiction to the election court to sanction
inspection of documents relating to an election.
4. The election court had discretion at the hearing of the petition to order inspection of documents before it.
5. Neither the Civil Procedure Act nor the Election Petition Rules specifcally provided for inspection of documents relating
to the impugned election after the petition was fled. The only reference to inspection in the Rules was in Rule 7 (2) and 8
(2) relating to a list of voters and list of objections required to be fled by the rules respectively.
Appeal dismissed.
Sentence in a Sexual Offence Case
Fred Michael Bwayo v Republic
Criminal Appeal No 130 of 2007
Court of Appeal, at Eldoret.
J. E. Gicheru, C.J, P.N Waki & J.W Onyango Otieno.JJ A
May 29, 2009
Criminal Practice and Procedure - appeal-sentencing - second appeal against conviction
and sentence of imprisonment to 20 years for deflement of a minor - offence committed
before the coming into force of the Sexual Offences Act - at the time offence was punishable
by a maximum sentence of imprisonment for life with hard labour - inconsistency on the
term of imprisonment meted out in substitution for life sentence - whether the Magistrates
Court was unduly infuenced by the Sexual Offences Act to apply its sentencing principles
- jurisdiction of the second Appellate Court to interfere with sentence.
Statutes interpretation of statutes intention of parliament to provide life imprisonment
for an offence of deflement of a younger child. Criminal Procedure Code section 361(1)
(a) - Sexual Offences Act section 8(2) - Penal Code (Cap63) section 145(1).
The appellant was charged with the offence of deflement of a girl contrary to section 145
(1) of the Penal Code (Cap 63) one year before the Sexual Offences Act 2006 came into
force .Upon his conviction by the Kitale Resident Magistrates Court, he was sentenced
under the Sexual Offences Act 2006 to serve a term of 20 years imprisonment .
His appeal to the High Court against conviction and sentence was dismissed hence the
second and last appeal.
On appeal, the Court suo motu raised the issue of sentence. The state on its part submitted that the sentence was proper.
Held:
1. Parliament intended that the deflement of a younger child was a more serious offence and did not envisage the punishment
under section 8(2) of the Sexual Offences Act 2006, which provided a person who committed an offence of deflement
with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life, to be other than life
imprisonment.
2. The tenor of section (8) (2) of the Sexual Offences Act 2006, was mandatory and therefore provided for life imprisonment
as the minimum sentence. It must logically be so since the succeeding sub sections (3) and (4) which provided for punishment
for defling much older children of between the age of twelve and ffteen years and between the age of sixteen and eighteen
years respectively provided for minimum sentences of imprisonment for a term of not less than twenty years and not less than
J. E. Gicheru, EGH, Chief Justice
33
ffteen years, respectively. The provisions would be in consonant with the prime objective of the Act which was prevention
and protection of all persons from harm from sexual acts.
3. The provisions of the Sexual Offences Act 2006, did not apply to the matter before the Court. The offence of deflement
was committed one year before the Act came into force. The law governing the offence was in section 145 (1) of the Penal
Code (Cap 63) as amended by the Criminal Law (Amendment) Act, No. 5/2003 ,which provided that any person who
unlawfully and carnally knows any girl under the age of sixteen years was guilty of a felony and was liable to imprisonment
with hard labour for life.
4. What was exceedingly rare, as the Court was unable to fnd, was a sentence of twenty years or more in substitution for
life imprisonment, even in sexual offences as the law stood before July 2006. If the ends of justice were served by imposing
lesser sentences at the time, it would be unjust to the appellant in the case to depart so fundamentally from the principles of
sentencing which were obtained when the offence was committed.
5. The Magistrate Court and the High Court were unduly infuenced by the Sexual Offences Act 2006 and applied sentencing
standards which did not apply to the case before them which refected on the unlawful nature of the sentence and thus entitled
the Court of Appeal to intervene.
Appeal allowed, sentence of 20 years set aside and substituted with a term of 15 years imprisonment with hard labour from
the date of the appellants conviction by the Magistrates court.
Sentencing: Balancing Severity of Sentence with the Offence
Kennedy Indiema Omuse v Republic
Criminal Appeal 344 of 2006
Court of Appeal, at Eldoret
E. O. OKubasu, P.N. Waki & J.W.O Otieno JJ A
May 29, 2009
Criminal practice and procedure-sentencing principles of sentencing - circumstances in which
an appellate court will interfere with a sentence.
Criminal practice and procedure-sentencing sentence to be commensurate to the moral
blameworthiness of the offender- duty of the sentencing court to look at the facts and circumstances
of a case in its entirety.
Criminal practice and procedure-jurisdiction-jurisdiction of the Court of Appeal sitting on a
second appeal to correct the disparity of the sentence meted out by a Subordinate Court- whether
sentence should be reviewed. Criminal Procedure Code section 361 (1).
The appellant and his two co-accused appeared before the Kitale Senior Magistrates Court
charged with burglary and stealing contrary to sections 304 (b) and 279 (b) ,three counts of
breaking into a building and committing a felony contrary to section 306(a) and fnally stealing stock contrary to section
278, all under the Penal Code (Cap 63). The appellants co-accused pleaded guilty to all the fve counts but the appellant
initially denied the charges but later pleaded guilty to all the fve counts.
The Magistrate Court after considering the probation report against the appellants co-accused, found that he had a previous
record of conviction and sentenced him to pay a fne of Kshs.10, 000, in default to serve a prison term of 12 years. The Court
on a later date sentenced the appellant to serve 7 years imprisonment without an option of a fne.
The appellants appeal to the High Court was dismissed .In his second and fnal appeal to the Court of Appeal, the appellant
contended that the Magistrate Court did not consider that he was a frst offender and that the sentence meted out against him
was more severe than what was meted out to his co-accused, who had a previous record of conviction. The state on its part,
argued that the Magistrates Court was entitled to impose the sentence in view of the fact that the probation report on the
appellant indicated that the appellant was a dangerous person who terrorized his neighbourhood.
Held:
1. The Court would not alter a sentence on the mere ground that if the members of the court had been trying the appellant
they might have passed a somewhat different sentence and it would not ordinarily interfere with that discretion exercised by
a trial Judge, unless it was evident that the Judge acted upon some wrong principles or overlooked some material factors.
E. O. OKubasu
2. The sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and it
was thus not proper exercise of discretion in sentencing, for the trial Court to have failed to look at the facts and circumstances
of the case in their entirety before settling for any given sentence.
3. The Court of Appeal had jurisdiction to restore a sentence which had been altered on wrong principles and the jurisdiction
did not infringe the principles set out in section 361 (1) (a) of the Criminal Procedure Code (Cap 75), which otherwise took
away the Courts powers to reduce the sentence which was manifestly too severe.
Appeal allowed ,sentence imposed set aside and substituted with the sentence equivalent to the period that the appellant had
served so as to result in his being released from prison.
Arbitration: Interpretation of Arbitration Clause
University of Nairobi v N.K. Brothers Limited
P. K. Tunoi, P. N. Waki & J. W. O Otieno JJ A
June 12, 2009.
Arbitration - reference of a dispute to arbitration - dispute between a construction frm and its client - dispute arising out of
payments based on certifcates issued by an architect engaged by the client - High Court accepting the argument that the client
was bound to meet the payments and that any complaints it had over the payments were matters between it and the architect
and not a dispute between the client and the construction frm - appeal - whether the plaint fled by the respondents raised
a dispute that could be referred to arbitration as provided in clause 36 of the building contract between the parties
Contract - construction and interpretation of contract - interpretation of arbitration clause 36 Civil Procedure Act (Cap
21) section 3A, Arbitration Act (Cap 49) section 6(1).
The appellant challenged the respondents suit in the High Court by fling a notice of motion under certifcate of urgency .The
notice of motion was fled under section 6 (1) of the Arbitration Act (Cap 49) and section 3A of the Civil Procedure Act (Cap
21), Order XLV (1) of the Civil Procedure Rules and all enabling powers of the Court. The appellant sought among other
orders that the dispute be refered to arbitration as provided in Clause 36 of their Building Contract.
Clause 36 of the contract between the parties provided that in case any dispute or difference arose between the employer and
contractor or between the contractor and architect on behalf of the employer, such a dispute or difference may be referred
to arbitration.
The High Court dismissed the application, hence the appeal.
Held:
1. Under Clause 36 of the contract between the parties, the matters to be refered to arbitration were not confned to disputes
only. If any difference arose between the employer and contractor or between contractor and architect on behalf of the
employer, such a difference may also be referred to arbitration.
2. The architects certifcation may be binding on the employer in a building contract but only if that architect had not made
certifcation of an amount in excess of the contractual amount.
3. Proof of one dispute or difference under clause 36 of the contract was enough to cause the suit to be referred to
arbitration.
Appeal allowed, order of the High Court set aside. The Civil Suit fled in the High Court referred to arbitration pursuant to
section 6 of the Arbitration Act.
____________________________________
35
Constitutional Rights of an Arrested Person
Martin Omollo Odongo Vs Republic
Court of Appeal at Kisumu
E. O. OKubasu, J. W. O.Otieno & A.Visram. JJ A
June 19, 2007
Criminal law Murder - appeal against conviction and sentence to death - offence committed
when appellant was under the age of 18 - whether sentence at the pleasure of the president
was proper. Penal Code (Cap 63) sections 203,204.
Criminal practice and procedure - arrest and detention rights of an accused person to be
arraigned in court within a reasonable time - duty of the prosecution to give an explanation
for the delay beyond the period stipulated under the constitution - issue of delay raised
for the frst time in the Court of Appeal - duty of the courts to take judicial notice of public
holidays and distances within the country. Constitution, section 72 (3).
The appellant was below the age of 18 years when he was charged in the High Court with
the offence of murder contrary to section 203 as read with section 204 of the Penal Code
(Cap 63). He was found guilty and the court ordered that he be detained at the presidents
pleasure.
Being aggrieved, the appellant fled a frst and fnal appeal to the Court of Appeal. Counsel for
the appellant relied solely on one ground. He argued that the appellants constitutional rights
had been violated by not being arraigned in court within the fourteen days as provided under section 72 (3) of the constitution.
It was submitted that the appellant was arrested on 4
th
February 2003 and was taken to court on 19
th
January 2004.
In a bid to explain the delay, the state submitted that a delay was not ipso facto a breach of the constitutional provisions.
Counsel for the state argued that the trial was before the High Court which was a Constitutional Court where the appellant
should have raised the issue. The state concluded by urging the court to appreciate the fact that the appellant was arrested in
Mombasa and had to be ferried to the local police station and then to the High Court.
Held:
1. Courts must take judicial notice of public holidays in the month of December and the distances within the country.
2. The Court observed, according to the record of appeal the information charging the applicant with murder was fled in
the High Court on 14
th
February 2004 and the alleged offence had been committed on 2
nd
October 2003 and the arrest was
made on 4
th
December 2003, but not on 4
th
as submitted by the appellants counsel.
3. The appellant was before the High Court which was a Constitutional Court where the constitutional issue that was raised
before the Court of Appeal for the frst time could have been raised. If the appellant had raised it, the prosecution would have
investigated and given an explanation for the delay.
Appeal dismissed.
Benard Omari Kigwaro V Republic
Court of Appeal, at Kisumu
E.O. OKubasu, J.W.O Otieno & A. Visram JJ.A
June 19, 2009
Criminal law-deflement of a girl under the age of sixteen years-second appeal against conviction
and sentence of 30 years imprisonment - second appeal confned to matters of law - grounds
of appeal not included in the memorandum of appeal-whether the grounds were validly before
the court for consideration.
Criminal Practice and Procedure - arrest and detention - rights of an arrested person - right to
be arraigned in court within a reasonable time computation of time - Saturday and Sunday
not to be considered for the purposes of reckoning the most practicable time the suspect should
have been arraigned in court.
Sentencing- offence of deflement - offence punishable by mandatory sentence of life
imprisonment - consideration of principles of sentencing - court inclined not to so fundamentally
depart from principles of sentencing obtaining at the time that the offence was committed -
whether a sentence of imprisonment for 30 years in substitution of a sentence of imprisonment
for life should be reduced - Constitution section 72 (3) - Penal Code (Cap 63) section 145(1)
W. O. Otieno
A. Visram
- Criminal Procedure Code(Cap 75) section 361(1).
The appellant was convicted and sentenced by the Senior Resident Magistrates Court in Nyamira to serve a term of 30 years
imprisonment for the offence of deflement of a girl under the age of sixteen years contrary to Section 145 (1) of the Penal
Code (Cap 63).
The appellants appeal to the High Court against conviction and sentence was dismissed and he fled a second appeal in the
Court of Appeal .The appellant intimated that he wanted to rely on two supplementary grounds of appeal which were not
formally fled in the Court of Appeal. The Court allowed him to proceed and argue his appeal.
It was the appellants argument that his Constitutional rights had been breached, as he was not produced before court
within twenty four hours of his arrest as was required by the Constitution of Kenya. He further submitted that there was no
documentary proof of the complainants age, arguing that being the case, the Magistrates Court and the frst Appellate Court
had no business convicting him of the offence of deflement of a girl under the age of sixteen years.
The State in opposition to the appeal, argued that provisions of section 72 (3) of the Constitution were not breached as the
record showed that the appellant was arrested late in the afternoon on a Friday and was produced in court the following Monday
and plea was taken on Tuesday. It was submitted by the State that Courts in Kenya do not operate formally on Saturdays and
Sundays and that the deadline of 24 hours for the production in court of a person suspected of a criminal offence as provided
by Section 72 (3) was beaten. As to age, the state further submitted that the complainant was 12 years old and there was no
doubt that she was below the age of sixteen.
Held:
1. The Court of Appeal was not obliged to consider the grounds of appeal not mentioned in the memorandum of appeal,
but it would proceed on the ground that they were validly before the Court for consideration and gave them consideration
deserved by any ground of appeal validly raised by way of a valid memorandum of appeal.
2. When the intervening days between the time and date of arrest were the dates that the courts can take judicial notice of as
being days like Saturday, Sunday or public holidays, during which no courts are sitting, the prosecution need not endeavour
to prove the fact that the date the accused was produced in court was the soonest practicable date. All the prosecution was
required to record was that those were days when the courts do not sit formally, the court would take judicial notice of that
fact.
3. The matter of the age of the complainant was a matter of fact. The Magistrates Court dealt with it. The frst appellant
had an opportunity to deal with it and by dint of section 361(1), the Court of Appeal had no jurisdiction to consider it as it
was a matter of fact.
4. As much as on matters of severity of sentence in respect of second appeals, the Court of Appeal has no jurisdiction when
it came to matters of the principles of sentencing, so as to ensure certainty and consistency of the sentencing in the country,
the Court of Appeal must accept that these are matters of law and hence the Court was in law entitled to intervene.
Appeal allowed, sentence of 30 years imprisonment set aside and substituted with a term of imprisonment for eighteen (18)
years with hard labour from the date of conviction by the trial court.
Injunction Against a Mortgagees Statutory Power of Sale
National Bank of Kenya Limited v Shimmers Plaza Limited
Civil Appeal No 26 2002
Court of Appeal, at Nairobi
S.E.O Bosire, E.M Githinji & A.Visram JJ.A
July 3, 2009

Civil Practice and Procedure Injunction injunction an equitable and
discretionary remedy duration of an order of injunction a sole discretion
of the Judge depending on the circumstances of each case - Civil Procedure
Rules Order 39 Rule 2 (2).
Mortgages and Charges statutory notice of sale notice of intention to sell
charged property validity of notice - where the court was inclined to grant
an interlocutory order restraining a mortgagee from exercising its statutory
power of sale solely on the ground that the mortgagee had not issued a valid
notice - whether to grant an injunction pending the determination of the
suit would be to frustrate the statutory right of the mortgagee to realize the
security - Transfer of Property Act 1882 section 69A (1) (a).
The appellant fled an appeal against the ruling of the High Court granting an
37
interlocutory injunction in favour of the respondent, restraining the appellant from selling or disposing of a suit land pending
the hearing and determination of the suit or until further orders. The High Court relied on an authority of the Court of appeal
to the effect that the Transfer of Property Act 1882, provided for a three months period to lapse after the service of the statutory
notice of sale and that a notice which does not state that the sale was to take place after three months of service of the notice
was invalid. The High Court however made a distinct fnding that the statutory notice was fawed or wrong as it indicated
that the mortgage money was payable within three months from the date of notice and therefore allowed the application for
interlocutory injunction. Being aggrieved by the decision the appellant fled an interlocutory appeal.
Counsel for the appellant submitted that the Court should not have given an injunction until the determination of the suit,
arguing that the Court had already determined the issue of validity of the notice at an interlocutory stage. It was further
submitted that the Court failed to exercise its discretion as granted under Order XXXIX Rule 2 (2) of the Civil Procedure
Rules by giving an injunction without proper notice arguing that where an interlocutory injunction was sought on the basis
of a defective notice, the order of injunction should be limited until the issuance of a valid statutory notice.
Counsel for the respondent supported the Courts ruling but conceded that there was nothing left to be determined regarding
the notice and that the appellant had a right in law to re-issue a valid notice.
Held:
1. The High Court cited the wrong statute, the Transfer of Property Act 1882 under which it issued the statutory notice.
2. An injunction was an equitable and discretionary remedy. The duration of an order of injunction was at the sole discretion
of the Court and depended on the circumstances of each case.
3. The duration of the injunction until the determination of the suit frustrated the statutory right of the appellant bank to
realize the security upon giving a notice which complied with the law.
4. Where the court was inclined to grant an interlocutory order restraining a mortgagee from exercising its statutory power
of sale solely on the ground that the mortgagee had not issued a valid notice, the order of injunction should be limited in
duration until such time as the mortgagee shall give a fresh statutory notice in compliance with the law.
5. The Court did not exercise its discretion judicially in the circumstances of the case when it granted an order of injunction
until the determination of the suit.
Appeal allowed, High Courts order of injunction set aside, fresh order of injunction issued.
____________________________________
Omae v Republic
Criminal Appeal No 1 of 2007
Court of Appeal at Eldoret
E. O Okubasu, J.W.O Otieno & A Visram.JJ A
July 3, 2009
Criminal law- murder - defence of insanity - evidence of possible
mental disorder - duty of the court to direct itself on the issue of
unsoundness of mind and if possible order an inquiry into the
same -whether sentence was proper. Criminal Procedure Code
Section 162 (Cap 75).

The appellant was charged with murder contrary to section 203
as read with section 204 of the Penal code (Cap 63), he was found
guilty and sentenced to death.
On appeal, counsel for the appellant relied on the appellants
insanity as his principal ground of appeal. It was submitted that
the evidence of the appellants strange behaviors mainly of carrying a lit torch in broad daylight, asking PW 7 a retired prison
department offcer if he had seen a thug who had killed his wife and child, the brutal and bizarre manner in which he had killed
his neighbour, his obsession with the wayward chicken, together with a report that he was not ft to plead, was indicative of
the need for the High Court to have inquired further into the soundness of the appellants mind.
A trial Court is obliged to make an inquiry where the
accused person appears to be of unsound mind.
Held:
1. There was suffcient evidence on record to suggest the possibility the appellant was of unsound mind and the trial Judge
ought to have ordered an inquiry under section 162 of the Criminal Procedure Code (Cap 75).
2. Under section 162 (1) of the Criminal Procedure Code (Cap 75) [which provided that, When in the course of a trial or
committal proceedings, the Court had reason to believe that the accused was of unsound mind and consequently incapable
of making his defence, the Court must inquire into the fact of unsoundness.], it was the duty of the Court to direct itself and
the assessors on the issue of unsoundness of mind.
Appeal allowed, conviction and the death sentence set aside and substituted with a special fnding to the effect that the appellant
was guilty of the offence but insane. The appellant to be detained at the pleasure of the President.
____________________________________
Agricultural Land: There is a
difference between rights aquired by
prescription and those aquired by
adverse possession
Teresa Wachuka Gachira v Joseph Mwangi Gachira
Court of Appeal at Nyeri
S. E.O. Bosire, P.N. Waki & J.G. Nyamu JJ A
July 10, 2009
Land law - claim to land - claim based on trust and adverse possession - prescription - prescriptive rights in land - how such
rights are acquired - incidence and scope of the right to land by adverse possession - procedure in bringing a claim to land
by adverse possession - matters which the claimant is required to establish to the Court - Limitation of Actions Act (Cap 22)
section 7, 13.
The respondent fled a suit against the appellant in the High Court, seeking orders for eviction and general damages for
trespass to land.
The appellant in her defence contended that the disputed land was registered in the name of the respondent as a trustee for the
heirs of the estate of the actual owner and that she was lawfully in occupation of it as the legal wife of the actual owner since
1967.The appellant went further and counterclaimed the termination of the trust in respect of the property and subdivision.
The counterclaim was however dismissed and judgment was entered in favour of the plaintiff hence the appeal.
The issue before the Court of Appeal was whether the appellant could claim interest in the disputed land through adverse
possession or on the basis of trust.
Held:
1. Prescription was a common law principle which was not legislated for in Kenya. By defnition in English Law, it was
the acquisition of rights by use or enjoyment during the time and in a manner fxed by law. The rights so acquired however
were not founded on the ground that possession over a given period gave an indefeasible right, but on the assumption where
possession or enjoyment had been carried back as far as living memory would do so, that a grant had once existed which had
since been lost.
2. As applied to the customary law of Kenya in relation to land, natural justice was imported to found an interest in land
where there was proof of abandonment by the original proprietor and of uninterrupted occupation and or continuation for
suffciently long period of time by the person asserting a claim by prescription.
3. There was no evidence on record that the appellant was in possession of the disputed land for any period of time before the
property rights on the disputed land were determined through registration in 1958. The appellants rights would otherwise have
been protected under Section 30 of the Registered Land Act (Cap 300), which provided in relevant part, unless the contrary
was expressed in the register, all registered land shall be subject to such rights acquired or in process of being acquired by
virtue of any written law relating to the limitation of actions or by prescription.
J. G. Nyamu
39
4. Adverse possession was statutorily provided for in Kenya. Ordinarily such claim would be pleaded under Section 7 of
the Limitation of Actions Act, (Cap 22), which provided an action may not be brought by any person to recover land after the
end of twelve years from the date on which the right of action accrued to him or if its frst accrued to some person through
whom he claimed to that person.
5. The mandatory procedure for invoking section 7 of the Limitation of Actions Act was in Order 36 rule 3D of the Civil
Procedure Rules and ordinarily the failure to follow that procedure was fatal to the suit. That was because under rule 10 an
originating summons may be continued as if the cause had begun by fling a plaint but the converse was not acceptable.
6. The appellant did not discharge the onus placed on her in establishing a case for entitlement to the disputed land through
adverse possession. There was no proof of exclusive, continuous and uninterrupted possession of the land for twelve years
or more before the suit against her was fled. Possession could have been by way of fencing or cultivation depending on the
nature, situation or other characteristics of the land. Periodic use of the land was not inconsistent with the enjoyment of the
land by the proprietor. The burials made in the disputed land had been suffciently explained in the evidence on both sides
and do not therefore tilt the balance in the appellants favour.
Appeal dismissed.
____________________________________
Sentencing on the Basis of an Uncontested Probation Report
Cecilia Mwelu Kyalo v Republic
R.S.C. Omolo, P. N. Waki & J. W. O Otieno JJ A
July 17, 2009
Criminal practice and procedure appeal sentencing manslaughter appeal against conviction and sentence of
imprisonment to 30 years - principles of sentencing - circumstances in which an appellate court will interfere with the sentence
imposed by a trial court - whether the sentence of 30 years imprisonment should be reduced. Penal Code (cap 63) sections
202, 205.
Criminal practice and procedure - probation report where probation report was relied upon as a basis for sentencing -
whether sentencing was proper.
The appellant was originally charged with the offence of murder, the offence was reduced to manslaughter contrary to section
202 as read with section 205 of the Penal Code (Cap 63). He pleaded guilty and was sentenced by the High Court to serve a
prison term of 30 years. Being aggrieved with the sentence, she appealed to the Court of Appeal.
When the appeal came up for hearing, counsel for the appellant addressed the court on sentence. He urged the court to use
its discretion on the matter, arguing that the sentence of 30 years imprisonment was unreasonable. The State conceded that
the sentence was manifestly harsh and excessive, arguing that it was meted as a result of non consideration of the fact that the
appellant had children and was a frst offender and consideration of the probation report, which revealed that there was clear
evidence of the appellants conspiracy to kill the deceased.
Held:
1. An Appellate Court would only be entitled to interfere with the exercise of discretion of sentencing, where it was shown
that the court whose exercise of the discretion was impugned, had either not taken into account a relevant factor or had taken
into account an irrelevant factor, or that short of those two, the exercise of the discretion was plainly wrong.
2. The probation report though important as it led the court into making its mind as to whether to put a person convicted on
probation, was nonetheless composed of allegations some of which had not been tested through cross -examination in court
and were matters that the person convicted had not had an opportunity to comment on and as such should not form the only
basis for sentencing.
3.The sentence was essentially a discretionary matter for the High Court but again in law, in exercising that discretion a trial
Judge had a duty to take into account all the relevant factors and leave out all irrelevant ones.

Appeal allowed, sentence of 30 years imprisonment set aside and substituted with sentence of 14 (fourteen) years
imprisonment.
____________________________________
Decrees in Consolidated Suits
David Ojwang Okebe & 11 Others v South Nyanza Sugar Company Limited
Civil Appeal (Appli) 139 of 2008 (KSM 18/08)
E.O. OKubasu, P.N. Waki & A.Visram JJ.A
July 17, 2009
Civil Practice and Procedure - decrees - decrees in consolidated suits grounds of appeal; that the decree was improper,
that the memorandum of appeal introduced new parties, no notices of appeal were fled and served in respect of a number
of decrees - decree having been issued in a test suit in which 11 parties had mutually agreed that the outcome of the test suit
would apply mutatis mutandis to the other similar claims - nature of the decree in such a suit - certifcation of decrees - Court
of Appeal Rules rule 85(1), (2).
The applicants brought a motion before the Court of Appeal seeking orders to strike out the record of appeal. The applicants
claimed that the decrees extracted from the Magistrates Court were not compliant with Order XX rule 6 of the Civil Procedure
Rules, since the names and descriptions of two parties who had been parties to the suit in the Magistrates Court had been
omitted and that the decree of the High Court was not certifed as a true copy of the original as required under Rule 85 (2) of
the Court of Appeal Rules, thus invalid for purposes of the appeal.
The applicants argued that there ought to have been 11 notices of appeal and 11 records of appeal fled, even when it was intended
to consolidate them before the Court of Appeal, claiming that there were 11 decrees each of which attracted an appeal.
Counsel for the respondent in response, argued that the decrees emanating from the Magistrates Court could not invalidate
an appeal since there cannot be an appeal to the High Court without a decree. He submitted that the decrees whatever their
imperfection, were on record and so was the judgment of the Magistrates Court and therefore the appeal could not be struck
out on that account. As for certifcation of the decree ensuing from the High Court in its appellate jurisdiction, counsel for
the respondent submitted that Rule 85(2) of the Court of Appeal Rules did not require certifcation and therefore the decree
on record could not be challenged either.
It was further submitted that the notice of appeal adopted the format in which the High Court heard and determined the
matter before it and that the High Court had heard all appeals as one consolidated matter and made one decision and that if
all appeals before the High Court had been separated and heard separately, there would have been different decisions and the
appellant would have reacted accordingly.
The respondent also submitted that the Commissioner of Police and the Attorney General were parties before the Magistrates
Court but did not challenge the decision of the trial magistrate, stating that there was no requirement that the two be joined
as parties before the High Court since they took no part.
The applicants in conceding that the application was fled long after the notice of appeal was served on the applicants, submitted
that the proviso to Rule 80 did not apply to notice of appeal but on record of appeal.
Held:
1. Under order XX rule 7 (5) of the Civil Procedure Rules, a decree emanating from a Magistrates Court does not require
the involvement of any of the parties. However decrees emanating from the High Court in its original jurisdiction are under
Order XX Rule 7 (2) drawn up by either party and approved before signature by the Registrar.
2. It was common ground that the decree or order of the High Court in its original jurisdiction must be certifed. The rationale
for that requirement was a decree or order envisaged by the provisions of rule 85 (1) of the Court of Appeal Rules, was the
foundation of every appeal and unless it accorded in every respect with the judgment or ruling appealed against, a decision of
the Court of Appeal in such an appeal may proceed upon a wrong premise. Its correctness in substance and form was really
a matter for the court which gave or issued it. Moreover, it was not uncommon for parties in a particular case being involved
in more than one case. So whether or not the number of the case was the correct one or not was a matter for the court from
which a decree or order emanated. That perhaps explained why rule 85 (1) (h) of the Court of Appeal Rules required a certifed
copy of the decree or order appealed from to be included in the record of appeal.
3. For purposes of a second appeal, any decree from the Magistrates Court which corresponds to the decree of the High
Court in its original jurisdiction, must be certifed.
4. The main object of consolidation was to save costs and time by avoiding a multiplicity of proceedings covering largely
the same ground. Thus, where it appeared to the court that there were common questions of law or fact; that the right to
relief was in respect of the same transaction or series of transactions; or that for some other reason, it was desirable to make
an order for consolidation of one or more cases, then the court will do so.
41
5. Whenever a party was faced with a decision on whether to exclude or include a person in the notice of appeal, it was with
abundant caution that the party should choose inclusion, since there was provision for exclusion under the Court of Appeal
Rules without suffering the drastic fate of striking out if exclusion was the choice ab initio.
6. The notice of appeal on record was intended for service on the Commissioner of Police and the Attorney General and the
appellant was well advised to include them, ex abundanti cautella. Rule 87 of the Court of Appeal Rules related to service
of the record of appeal on persons who under Rule 78 had lodged with the registry their address for service.
7. The proviso to rule 87 of the Court of Appeal rules referred to service of the record of appeal which by defnition was a
reference to both the notice of appeal and the main appeal as provided for under rule 85 of the rules. The intendment of the
amended rule was to limit the period within which challenges to a record of appeal, including a notice of appeal, may be made
and it was clear to the Court of Appeal that the application was not in compliance with the Court of Appeal rules.
Application dismissed.
____________________________________
Certifcation of Documents in a Record of Appeal
Premier Dairy Ltd v Amarjit Singh Sagoo & Another
Civil Appeal (Application) 213 of 2008
R. S. C. Omolo, S.E.O. Bosire & E.M. Githinji. JJ A
July 17, 2009
Civil practice and procedure-appeal - application to strike out an appeal - grounds; the
record of appeal contained uncertifed copy of decree, copy of judgment and decree were at
variance as regards the date of delivery of judgment - duty of the court to issue on request
copy of authentic documents - rationale for certifcation whether a certifed copy of a decree
was a primary document which could not be supplied through a supplementary record of
appeal - whether record of appeal satisfed the legal requirements. Court of Appeal Rules
rule 85 (1) (h), Civil Procedure Rules Order XX rules 3, 6, 7.(Cap 21)
Following the delivery of a judgment awarding damages against the appellant, the
appellant timeously fled a notice of appeal, declaring its intention of appealing against the
judgment.
The respondent brought a notice of motion under rules 42(1), 80, 85(1) (2) and (4) of the
Court of Appeal Rules, seeking an order to strike out the appeal on the grounds that the
record of appeal contained an uncertifed copy of decree and that the copy of judgment
and decree were at variance regarding the date of delivery of the judgment and fnally that
certain primary documents were omitted.
Counsel for the appellant, conceded that indeed the judgment on record had the wrong date of delivery and that there was no
specifc certifcation on the copy of decree on record. It was the appellants submission, that the wrong date did not render
the appeal incompetent because the judgment was correct, was signed by the Judge who prepared it and countersigned by the
Judge who delivered it. It was further submitted that, the copy of decree contained the superior courts stamp and because
it was the document the appellant was furnished with by the High Court, there can be no doubt that it was authentic and that
the court was duty bound to give an authentic document in every respect to a party who requested for one.
Held:
1. The requirement of certifcation was to provide an opportunity to the High Court to look afresh and confrm the contents
of the judgment and satisfy itself that the decree as drawn represented what the High Court adjudicated upon and its decision
thereof. Certifcation was meant to guarantee correctness.
2. A certifed copy of decree was a primary document. It was not one of those documents which under rule 85(2A) of the
Court of Appeal Rules, may be brought in by fling a supplementary record of appeal or which if defective may be amended
and brought in through the fling of a supplementary record of appeal under rule 89 (3) of the Court of Appeal Rules.
3. A copy of a judgment included in the record of appeal must accord with the provisions of Order XX rule 3 of the Civil
Procedure Rules, which provided that a copy of judgment must bear the correct date. It was quite clear that the copy included
in the appellants record of appeal did not satisfy that legal requirement and thus rendered the appeal incompetent.
R. S. C. Omolo
4. The High Court or indeed any court was duty bound to give a party who requested for a document, a copy of a document
which was correct in every respect. It did not however excuse a litigant from satisfying himself or herself that the document
given to him or her by a court on request was accurate or refected the correct position.
Application allowed, Appeal struck out.
____________________________________
Procedure in fling Claims for Adverse Possession
Ngati Farmers Co-Operative Society Ltd v Councillor John Ledidi
Court of Appeal at Nakuru
P.K. Tunoi, E.M. Githinji & J.W.O Otieno. JJ A
July 23, 2009
Land Law adverse possession - ingredients of a claim for adverse possession matters which claimant is required to establish
to the court procedure in lodging a claim for adverse possession jurisdiction to convert a case which has been wrongly
brought by an originating summons - whether such a claim may be raised by way of a counterclaim in a suit commenced by
a plaint - Civil Procedure Rules Order 36 rule 10 (Cap 21).
The appellant had fled a suit against the respondent concerning land , the High Court not only dismissed the appellants suit
and allowed the respondents counter-claim and declared inter alia, that the respondents had acquired title to the suit land
2581 acres being a portion of L.R. No. Narok/Maiella Estate No 2662 and 1626 acres being a portion of Narok/Maiella Estate
No 1380, by reason of having been in adverse possession thereof, but also ordered that a permanent injunction be issued to
restrain the appellant from evicting the respondents from those portions of the suit land and further ordered that the appellant
do transfer those portions to the respondents.
On appeal against the decision, counsel for the appellant argued that the court misdirected itself on the essential legal ingredients
necessary to prove a claim for adverse possession and hence arrived at a wrong conclusion in holding that the respondents
had proved their counterclaim based on adverse possession.
It was the appellants submission that the court erred in failing to strike out the counterclaim for being incompetent arguing
that it was brought in contravention of order XXXVI rule 3D of the Civil Procedure Rules (Cap 21) which mandated that,
claim for title by adverse possession was to be mandatorily sought by way of an originating summons and that the procedure
having been breached, the claim could not succeed. It was further contended that it was wrong for the court to have given
reliefs, which were not properly pleaded.
Held:
1. The respondents having proved on the balance of probability that the appellant being the title holder of the portion of the
suit land had been dispossessed and discontinued its possession of the said land for more than the statutory period. Then it
must follow, the respondents had proved their possession amounted to adverse possession.
2. The respondents had also established that they had no colour of right to be on the portion of the suit land other than
through their entry and occupation which was openly and without permission or agreement of the appellant, the true owner
thereof. In the circumstances, obviously their occupation amounted to an act which was inconsistent with the peaceful and
quiet enjoyment of the true owner or the appellant for the purposes for which it intended to use it.
3. Under order 36 rule 10 of the Civil Procedure Rules (Cap 21), there was jurisdiction to convert a case which had been
incorrectly brought by an originating summons, so as to be continued as a normal suit. That would occur when it turns out
that the suit raised issues of pure law, complex and controversial issues as to the facts.
4. The issue of the wrong procedure did not invalidate the proceedings because it did not go to the jurisdiction of the court
and no prejudice was caused to the appellant.
Appeal dismissed.
____________________________________
43
Abatement of Appeal
Pauline Wambui Ngari v John Kairu 7 & Another
P.N Waki. J A
July 24, 2009
Civil practice and procedure-appeal - abatement of appeal application for revival of an appeal - Court of Appeal jurisdiction
in entertaining such an application whether an appeal shall abate on the death of an appellant or the respondent.
Civil practice and procedure-appeal extension of time- application for substitution of a deceased party to an appeal by a
legal representative - whether the time limit set by rules for the substitution of a deceased person may be extended - Court of
Appeal Rules, rule 96 (1) (2) .Civil Procedure Rules (Cap 21), Order XXIII rule 2.
The applicant, a legal representative of the original appellant (deceased) invoked order XXIII, rules 4, 5 and 12 of the Civil
Procedure Rules (Cap 21) and rule 96 (1) and (2) of the Court of Appeal rules, seeking orders to revive an appeal and to be
substituted and made party to the suit on behalf of the original appellant. Counsel for the applicant, sought to persuade the
court that it had the discretion to grant the orders sought since the rules were silent and did not prohibit the procedure she had
adopted .She submitted that the applicant could not apply earlier than she did because she was sick for a long time and that
there was a note from the doctor to that effect.
Counsel for the respondent argued in opposition to the application that there was no suit to revive since the matter was an
appeal. He submitted that there was no provision in the rules for revival of an abated appeal and that the appeal before the
court abated two and a half years before the application was made. Counsel further argued, that the affdavit in support of the
application confrmed that the applicant was one of the original appellants children and that there was no explanation as to
why it was not possible for any other person to apply for substitution within the time required by the rules. He concluded by
submitting that substitution was possible within the rules but was not made and therefore no discretion should be exercised.
Held :
1. Order XXIII of the Civil Procedure Rules (Cap 21) had no application in the Court of Appeal. The application would
therefore be considered under rule 96(1) and (2) of the Court of Appeal rules which provided, an appeal must not abate on
the death of the appellant or the respondent but the Court must on the application of any interested person cause the legal
representative of the deceased to be made a party in place of the deceased. If no application was made within twelve months
from the date of death of the appellant or the respondent, the appeal must abate.
2. There was no provision in the Court of Appeal Rules which authorized any party to an appeal to make an application for
revival of an abated appeal. Similarly there was no provision in the Court of Appeal Rules which gave the Court of Appeal
jurisdiction to order the revival of an abated appeal.
3. Even if the period of six months and twelve months were extended under rule 4 of the Court of Appeal Rules, once an
appeal had abated there was no period set within which the abated appeal could be revived and therefore even if six months
or the twelve months were respectively extended that would not mean that the abated appeal would have been revived.
4. Obiter. The Rules Committee has made proposals, hopefully due for gazettement shortly, for provision of rules similar
to the Civil Procedure Rules, for revival of an abated appeal or application.
Motion dismissed.
____________________________________
Recognition and Identifcation Evidence
Charles Chacha Sasi v Republic
E. O. OKubasu, J. W.O Otieno & J. G. Nyamu JJ A
August 7, 2009
Criminal practice and procedure- appeal - robbery with violence - second appeal confned to matters of law appellate
court bound by concurrent fndings of fact made by the trial court unless fndings were not passed on evidence. Constitution
Section 72 (3).Penal Code section 296 (2)(Cap 63)
Evidence-criminal evidence -identifcation evidence- identifcation by recognition second appeal - whether in the face of
adequate proof, re-evaluation of identifcation evidence was essential.
The appellant was charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code (Cap 63),
he was convicted and sentenced to death. His appeal to the High Court was dismissed.
Being aggrieved by the decision, the appellant fled a second appeal on the grounds that his constitutional rights as enshrined
in section 72 (3) of the Constitution had been violated. It was the appellants submission that he was not taken to court until
after a period of 18 days, arguing that although there was a public holiday in between, the period of 14 days as stipulated in
the constitution was exceeded rendering the trial illegal and a nullity. Counsel for the appellant further submitted that the High
Court erred in failing to analyse and re-evaluate the evidence of identifcation tendered in the Magistrates Court.
In opposition to the appeal, the state submitted that the prescribed period of arraigning an accused person in court under the
constitution was exceeded by one day and a delay of one day was excusable going by decisions of the Court of Appeal. The
State further submitted that the inconsistency concerning identifcation of the appellant before he was taken to hospital was
immaterial arguing that the appellant was not only identifed by the complainant but the identifcation was by recognition,
the complainant having known the appellant for 20 years.
Held:
1. The alleged inconsistencies concerning time were all matters of fact upon which the Magistrates Court and the High
Court had made concurrent fndings. On second appeal, the Court of Appeal was only concerned with points of law .On such
an appeal the Court was bound by the concurrent fndings of fact made by the lower courts, unless those fndings were not
passed on evidence
2. The challenged identifcation was by recognition, by a complainant who had known the appellant for twenty years. In
addition the two lower courts having made concurrent fndings of fact, the Court of Appeal cannot disturb such fndings as
stipulated in section 296 (2) of the Penal Code (Cap 63) and consequently the alleged failure of re-evaluation of evidence
was unfounded in the face of adequate proof that the appellant was in the company of more than one other person or persons
and they were armed with offensive weapons.
Appeal dismissed.
____________________________________
A Convicted Persons Entitlement to be Heard in Mitigation of Sentence
Edwin Otieno Odhiambo v Republic
P. K. Tunoi, D. K. S. Aganyanya & J. G. Nyamu JJ.A
August 7, 2009
Criminal Law - murder - High Court reducing the charge to manslaughter and sentencing the appellant to 15 years in prison
appeal against conviction and sentence-Penal Code (Cap 63) sections 203,204.
Sentencing - mitigation - duty of a court to consider and record mitigation failure by the High Court to accord the appellant
an opportunity to offer mitigation before pronouncing its sentence after conviction - High Court having failed to consider that
the appellant had been in custody for 3 years before the trial - court also failing to consider the issues of provocation and
intoxication in arriving at its sentence whether in the circumstances it was proper to interfere with the sentence - Criminal
Procedure Code (Cap 75) sections 215, 216.
The appellant was charged before the High Court at Kisumu with murder contrary to section 203 as read with section 204 of
the Penal Code (Cap 63) .The Court reduced the charge to manslaughter and sentenced him to ffteen (15) years imprisonment.
Aggrieved by the conviction and sentence he fled an appeal to the Court of Appeal
It was submitted by the appellants counsel that the High Court did not give the appellant an opportunity to mitigate before
the sentence was imposed as stipulated in sections 215 and 216 of the Criminal Procedure Code (Cap 75).
The appellant argued that it was not clear what considerations the High Court took into account in coming up with the sentence
of 15 years. He further argued that while he conceded that the issue of sentence was one of discretion, the Court appeared
not to have taken into consideration that the deceased and his assailants had been drunk and the offence could have happened
due to intoxication.
The appellant referred the Court to two of its previous decisions in which it had reduced sentences imposed in circumstances
similar to his case.
He further urged the Court to fnd that if the High Court had properly directed itself by taking into account the issue of
intoxication and provocation as required under section 216, such a direction might have in turn had an impact on the length
of the sentence.
45
The State opposed the appeal by submitting that the defence of intoxication had not been raised in the High Court and that it
was being raised as an afterthought. The state invited the Court to take into account that the law provided for life imprisonment
for the offence of manslaughter and that the international standard was 30 years. The State further submitted that it was
apparent from the judgment of the High Court that it had properly addressed the issue of intoxication and provocation.
Held:
1. On the issue of sentence, it was clear that the High Court did not offer the appellant an opportunity to mitigate. Although
the Court of Appeal appreciated that section 216 of the Criminal Procedure Code (Cap 75) which provided that the Court may
before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks
ft in order to inform itself as to the sentence or order properly to be passed or made, was worded in permissive terms .It was
certain that on matters of sentencing if a court disregarded the provision and therefore failed to take into account mitigating
circumstances, the chances of not coming up with an appropriate sentence were enhanced.
2. When imposing the sentence of 15 years imprisonment the High Court ought to have taken into account that the appellant
had been held in custody for 3 years before the commencement of the trial.
3. Though the High Court had considered the issue of intoxication and provocation in its judgment and consequently reduced
the charge to manslaughter, it had failed to consider the issue with respect to the sentence. The High Court had a duty to record
the mitigation after a conviction and before sentencing.
Sentence of ffteen (15) years imprisonment reduced to one of ten (10) years imprisonment to run from the date when the
appellant was sentenced by the High Court.
____________________________________
Ordering a Re-trial of a Case
Opicho v Republic
PK Tunoi, PN Waki & A Visram. JJ A
October 2, 2009
Evidence-Criminal evidence - evidence of a child of tender years-law and procedure in receiving the evidence of a child of
tender years - Statutory Declarations Act section 19.
Criminal practice and procedure-retrial - circumstances in which a court will consider a retrial - where trial was vitiated by
the failure of the Magistrates Court to properly determine the competence of a child to give evidence - whether appeal had
merit. Penal Code(Cap 63) section 234.Evidence Act section124
The appellant was charged before the Molo Senior Principal Magistrates Court with the offence of grievous harm contrary
to section 234 of the Penal Code (Cap 63). He was convicted and sentenced to serve 10 years imprisonment. His frst appeal
to the High Court was not only dismissed but the sentence was enhanced to 20 years imprisonment.
On second appeal, the appellant challenged the manner in which the evidence of a minor was recorded, admitted and considered
by the Magistrates Court and subsequently by the High Court. In his submission, the appellant pointed out that the child was
not examined as to his level of intelligence and understanding of an oath before he was allowed to testify.
The State conceded the appeal on the said ground, but sought an order for retrial arguing that the prosecution had nothing to
do with the omission. In opposition, the appellant argued that even if the evidence of the child was accepted, there was no
corroboration as required under section 124 of the Evidence Act.
Held:
1. The child was a vital witness in the trial and the failure by the Court to comply with the procedure in the reception of his
evidence, vitiated that evidence.
2. In general a retrial would be ordered only when the original trial was illegal or defective, it would not be ordered where
the conviction was set aside because of insuffciency of evidence or for the purpose of enabling the prosecution to fll up gaps
in its evidence at the frst trial, even where a conviction was vitiated by a mistake of the trial Court for which the prosecution
was not to blame, it does not necessarily follow that a retrial should be ordered, each case must depend on its own facts and
circumstances and an order for retrial should only be made where the interests of justice required it.
Appeal allowed, conviction and sentence set aside, appellant to be retried before a court of competent jurisdiction.
Sentencing for Illegal Possession of Narcotics
Daniel Kyalo Muema v Republic
E. M. Githinji .J A
October 9, 2009
Criminal practice and procedure sentencing sentencing for the offence of illegal possession of cannabis sativa - sentence
of imprisonment to six years having been enhanced to 20 years on frst appeal - Court of Appeal jurisdiction on severity of
sentence - whether the High Court had misdirected itself on sentence by misinterpreting the law as imposing a mandatory
sentence or a minimum sentence.
Statutes-Interpretation of statutes - interpretation of the Narcotic Drugs and Psychotropic Substances (Control) Act, Act No.
4 of 1994 section 3(2) - nature of punishment prescribed by the section meaning of the term shall be liable. Interpretation
and General Provisions Act section 66(1), Penal Code section 26(3).
The appellant appeared before the Kangundo Senior Resident Magistrate Court and was convicted on his own plea of guilty
for the offence of being in possession of cannabis sativa, contrary to section 3 (1) as read with section 3 (2) of the Narcotic
Drugs and Psychotropic Substances (Control) Act, Act No. 4 of 1994 (Act) and was sentenced to six years imprisonment.
Being aggrieved by the sentence he appealed to the High Court which set aside the sentence of (6) years imprisonment and
substituted the same with twenty (20) years imprisonment. The appellant further appealed to the Court of Appeal on severity
of the sentence.
The State conceded the appeal against sentence, submitting in part that High Court misdirected itself on sentence by
misinterpreting section 3 (2) of the Act, as either carrying a mandatory sentence or minimum sentence. Counsel argued that
the section did not provide a mandatory or minimum sentence and the Court had discretion to pass any sentence below the
sentence of 10 years imprisonment or 20 years imprisonment as the case may be.
Held:
1. The Court of Appeal had jurisdiction to hear the appeal against sentence since the High Court enhanced the sentence
from 6 years to 20 years imprisonment.
2. The penalty prescribed by a written law for an offence, unless a contrary intention appeared, was the maximum
penalty.
3. The principle of law in section 66 was entrenched in section 26 of the Penal Code (Cap 63) which expressly authorized
the Court to sentence the offender to a shorter term than the maximum provided by any written law and further authorized
the Court to pass a sentence of a fne in addition to or in substitution for imprisonment except where the law provided for a
minimum sentence of imprisonment.
4. The words shall be liable to, did not in their ordinary meaning require the imposition of the stated penalty but merely
expressed the stated penalty which may be imposed at the discretion of the Court. In other words they were not mandatory
but provided a maximum sentence only and while the liability existed the Court might not have seen ft to impose it.
5. The High Court misconstrued Section 3 (2) (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act,
Act No. 4 of 1994 which prescribed the sentence for possession of cannabis sativa and erred in enhancing the sentence of
imprisonment.
Appeal against sentence allowed. Sentence of 20 years imprisonment set aside and restored with sentence of six years
imprisonment imposed by the trial magistrate, effective from when the appellant was convicted and sentenced.
____________________________________
47
Change of Presiding Judge in the Course of Trial
James Omari Nyabuto & another V Republic [2009] eKLR
P. K. Tunoi, J.W. Onyango Otieno & D. K. S. Aganyanya
October 9, 2009
Criminal Practice and Procedure appeal-trial trial judge- change of presiding judge change
where the presiding judge has heard all the witnesses and recorded all the evidence - a different
judge writing a judgment based on such evidence - matters to consider before a judge can act on
the evidence recorded by a preceding judge - Section 200 (1) (b) of the Criminal Procedure Code
(Cap 75)
Criminal law - murder - mens rea - malice aforethought - common intention - accused persons in a
group of persons armed and planning to attack the deceased - gang, killing or maiming the deceased
and destroying his property where the fatal shot was by a person not before the court-whether
there was a common intention to commit the offence of murder by the two accused persons who
were members of the group - Penal Code (Cap 63) section 21
Criminal law-murder-ingredients of murder-malice afore thought-proof of- Penal Code (Cap 63)
section 206
Criminal practice and procedure-charge sheet-defective charge sheet- framing of the charge of murder where there is more
than one accused person-failure to state jointly charged or jointly with others not before court-whether the defect
occasioned prejudice to the appellant
The appellants had been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal
Code (Cap 63) It had been alleged by the prosecution that the two appellants and another, Joseph Nyabuto who had died in
the course of the trial, had murdered Kefa Nyanchoka, the deceased. The appellants had been tried before the late Kaburu
Bauni J who after having fully heard the case and received the opinion of the assessors, reserved the judgment to be delivered
on notice. However, the judge passed on before he had delivered his judgment. The matter was taken over by another judge
who consequently convicted the appellants and sentenced them to death after acting on the evidence recorded by the preceding
judge.
On the material day and time the deceased and his brothers were ambushed and assaulted by a group of people, including
the appellants who were armed with assorted weapons. Evidence from the key prosecution witnesses was that the deceased
had been shot by two other persons who had been in the group of assailants and one of whom had never been traced by the
police.
The appellants appealed against the conviction and sentence on the ground that the trial Judge erred in proceeding to write
and deliver the judgment of the High Court without the beneft of hearing any of the witnesses and upon evidence wholly
recorded by another Judge. It was further argued by the appellants that malice aforethought, the main ingredient of the offence
of murder, had not been proved. It was the appellants contention that by the application of the doctrine of common intention
as prescribed in section 21 of the Penal Code, the evidence tendered before the trial court was not suffcient to render them
guilty of murder. It was also argued that the charge against the appellants was defective in that it omitted to state that they
had been jointly charged or jointly with others not before court.
Held:
1. The appellants had a common purpose of attacking the deceased and his brothers as they were armed with assorted weapons
and were in the company of, two other persons whose actions were the direct cause of the death of the deceased. The fact
that it was not the appellants who made the fatal shot was immaterial in law and it did not absolve them from culpability as
long as they were with the actual killers and they were all actively executing the unlawful common purpose. The Judge had
hence correctly invoked the doctrine of common intention under section 21 of the Penal Code
2. Section 200 (1) (b) of the Criminal Procedure Code provided that a succeeding Judge could act on the evidence recorded
wholly by his predecessor. However, the section was a provision of the law which was to be used very sparingly and only in
cases where the exigencies of the circumstances, not only are likely but will defeat the end of justice if a succeeding Judge
did not, or was not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming
unavailable to complete the trial.
3. Mens rea, an ingredient of murder under section 206 of the Penal Code had been satisfed as the evidence established
that the appellants and others had set out with the intention to cause death or to do grievous harm to the deceased and his
brothers.
D. K. S. Aganyanya
4. The omission or the irregularity in the charge that the appellants had been jointly charged or jointly with others not
before court had not occasioned the appellants any failure of justice.
Appeal dismissed.
____________________________________
Procedure in Receiving the Evidence of a Child Witness
Right of an Arrested Person to be Brought to Court
John Otieno Oloo v Republic [2009] eKLR
E. O. Okubasu, J. W. Onyango Otieno & J. G. Nyamu JJ. A
October 9, 2009
Constitutional Law-fundamental rights- right of an arrested person right to be brought to court within a reasonably
practicable time after arrest person arrested on suspicion of the offence of robbery with violence brought to court after 13
days whether his constitutional right had been breached whether the trial was proper-factors the court considers in such
circumstances-whether the contention was valid- Constitution section 72(3)
Criminal Practice and Procedure-evidence-evidence of a child of tender
years-meaning of child of tender age-procedure in receiving the evidence
of a child-duty of a trial court to carry out a voire dire examination of
a child before receiving the childs evidence-manner in which a court is
to deal with both sworn and unsworn evidence of a child witness-Oaths
and Statutory Declarations Act section 19 (Cap. 15) Children Act, 2001
(Act. No. 8 of 2001) section 2
Criminal Practice and Procedure-evidence-corroboration corroboration
of the evidence of a child of tender years-circumstances in which
corroboration of such evidence would be required- the law and practice
on how a trial court should handle corroborated and uncorroborated
evidence of a child witness
The appellant had brought an appeal against a conviction and sentence on
a charge of robbery with violence contrary to section 296 (2) of the Penal Code (Cap. 63) by a subordinate court. In making
its determination the subordinate court had relied on the evidence of three child witnesses. State Counsel conceded the appeal
stating in part that the evidence against the appellant was inadequate and suspect. In its judgment however, the superior court
disagreed with this assertion and dismissed the appeal stating in part that the evidence was cogent and sound and that it had
led to the proper and lawful conviction of the appellant. It was against this decision that the appellant moved to the appellate
court with the second appeal citing several grounds.
Among these were that the trial court and the frst appellate court erred in fact and law by convicting and sentencing the appellant
to death despite the fact that his Constitutional rights as enshrined in section 72 (3) of the Constitution had been violated; that
the trial court erred in law and in fact in failing to observe the provisions of section 19 of the Oaths and Statutory Declaration
Act (Cap. 15) and section 124 of the Evidence Act (Cap. 80); and that the trial curt erred in convicting and sentencing the
appellant on the basis of evidence of identifcation which was marred with inconsistencies and irregularities. The appellant
also claimed that the courts had wrongly entered a conviction on the uncorroborated evidence of a child.
Held:
1. The frst ground alleging violation of the appellants constitutional rights under section 72 (3) of the Constitution was
ill-advised. This section stated that in such cases which carried the death penalty the accused could not be detained without
being produced in Court beyond fourteen (14) days unless an acceptable explanation for such a delay was availed. Here there
was no delay and hence no explanation was necessary. The appellant was produced thirteen days after his arrest hence the
ground lacked merit and should not have been preferred in the frst place .
2. It was clear from the record that none of the three minors was subjected to any examination to ascertain whether they
could understand the nature of an oath or whether they were suffciently intelligent to give evidence without an oath. Section
19 of the Oaths and Statutory Declarations Act provided that the evidence of a child of tender years called as a witness, who
in the opinion of the Court did not understand the nature of an oath, could be received if in the opinion of the Court such a
49
child was possessed of suffcient intelligence to justify the reception of the evidence and understands the duty of telling the
truth. The Children Act at section 2 defned a child of tender years as a child under the age of ten years.
3. The trial court should have, out of caution, formed an opinion on a voire dire examination whether the child understood
the nature of an oath before she could be sworn. Failure to do so could have occasioned a miscarriage of justice had that been
the only witness on the issues that were before the Court. Where a witness who did not understand the nature of the oath was
made to swear, her evidence would have higher probative value than if the same evidence was given unsworn.
4. Corroboration of the evidence of a child of tender years was only necessary where such a child gave unsworn evidence.
Johnson Muiruri v. Republic [1983] KLR 445. In law the evidence of a child of tender years given on oath after voire dire
examination required no corroboration but the Court had to warn itself that it should in practice not base a conviction on
it without looking and fnding corroboration for it. The evidence of a child of tender years not given on oath had to, in
law, be corroborated. Even if the evidence of one of the children was inadmissible there was still evidence from the other
witnesses.
Appeal dismissed.
____________________________________
Doctrines of Waiver and Estoppel
Seascapes Limited v Development Finance Company of Kenya Limited
P. K. Tunoi, E. M. Githinji & J. W. O Otieno JJ A
October 9, 2009.
Evidence - frst appeal - duty of a frst appellate court with regard to the evidence adduced at the trial court - matters the
appellate court will consider in analyzing the fndings of fact made by a trial court.
Estoppel - doctrine of estoppel -meaning of the doctrine and its application - waiver- meaning and application of the doctrine
of waiver - dispute as to whether a loan had been advanced in Kenya Shillings or in foreign currency - whether the doctrines
of estoppel and waiver had operated to allow for the advancing of the loan in foreign currency.
The appellant fled a suit against the respondent in the High Court. In that suit, the appellant relied on several articles in a loan
agreement which it alleged were breached by the respondent and it sought among other declarations that the loan advanced
was so advanced in Kenya Shillings and the principal loan, interest and all charges had been repaid in full in foreign currency
and the respondent was to render a detailed account of the monies advanced to it taking into account all payments made and
any overpayment be refunded to it.
The respondent denied the allegation that the loan advanced to the appellant was so advanced as a local currency loan. The
respondent also pleaded in the alternative that if the same loan was advanced in local currency and therefore payable in local
currency, then the appellant was by his conduct estopped from pleading that it was in local currency and further that it must
be taken that by conduct, the appellant waived its rights to rely on the condition stipulating repayment of the same in local
currency. It thus sought dismissal of the suit.
The High Court entered judgment in favour of the respondent and denied the appellant any refund in respect of the overpayments
it allegedly made to the respondent on the grounds that it either waived those claims or was estopped from making those
allegations on account of its conduct. The appellant felt aggrieved by that decision, hence the appeal.
Held:
1. As the frst appeal, the Court of Appeal was enjoined to revisit the evidence that was before the High Court afresh, analyse
it, evaluate it and arrive at its own independent conclusion, but always bearing in mind that the High Court had the beneft
of seeing the witnesses, hearing them and observing their demeanour and giving allowance for that.
2. The doctrine of waiver operates to deny a party his right on the basis that he had accepted to forego the same rights
having known of its existence. The doctrine of estoppel operates as a principle of law which precludes a person from asserting
something contrary to what was implied by a previous action or statement of that person or by a previous pertinent judicial
determination.
3. In this case, the doctrine of estoppel would have been applied if evidence existed, to preclude the appellant, Seascapes
Limited, from asserting that the loan was in Kenya currency and thus the court would in applying that doctrine fnd that the
loan was in foreign currency or in case of a waiver, the appellant would be found to have waived his right to assert that the loan
was in Kenya currency and thus the eventual fnding would be that the loan was in foreign currency. Thus, if the High Court
applied those principles as it purported to do, then it would not have made a fnding that the loan was in Kenyan currency as
it did. Put another way, once it made a specifc fnding that the loan was in Kenya currency then it had no business making
another fnding that estoppel or waiver operated or was confned to recovery of overpayment. Therefore once it had found
and held that the currency of the loan was Kenya shilling that was the end of the matter and if applying that currency there
was overpayment, it had to be recovered.
4. The High Court had made a fnding that the loan was in Kenyan currency and repayable in Kenyan currency. It made that
fnding on the basis that the respondent did not comply with the loan agreement. The doctrines of waiver and estoppel could
have only been applied to defeat that allegation of non compliance with the said article. Once that fnding was made, nothing
remained for the application of those doctrines. In any case, there was no evidence in support of those two doctrines.
5. The loan had been overpaid both in respect of what the High Court marked as Deutschmark and sterling accounts.
Appeal allowed to the extent that both the loan granted to the appellant, the subject of the suit in the High Court plus interest
and charges, were granted in Kenya shillings and the obligation to repay was in Kenya shillings.
____________________________________
Taxation of Advocates Costs: Instruction Fees
Akhtar Shahid Butt & another v David Kinusu Sifuna T/A Sifuna & Company Advocates [2009] eKLR
E. M. Githinji; P. N. Waki; Alnashir Visram, JJ. A
Court of Appeal at Mombasa
October 16, 2009
Civil Practice and Procedure - taxation of costs - advocates fees - appeal from the decision of the High Court on a reference
of the decision of a taxing master reducing the instruction fees for an advocate to represent a petitioner in a winding up
petition - whether the High Court was right in upholding the decision of the taxing master - whether the instruction fees was
manifestly excessive and out of proportion to the work carried out by the advocates and it should have been reduced further
- Advocates (Remuneration) Order (Cap 16 Sub Leg) Rule 11(2)
The 1
st
appellant had instructed his advocates, the respondent, to fle a petition in the superior court for the winding up of
the 2
nd
appellant. The petition was never set down for hearing. The 1
st
appellant and the respondent settled the matter out of
court within only 12 days of its fling, and a consent order to mark the petition as withdrawn was fled in court. Thereafter, the
respondent presented its bill of costs for taxation claiming Kshs 1,860,000/= in respect of the instruction fee to fle petition.
The taxing offcer reduced the instruction fee by Kshs 860,000/= and awarded Kshs. 1 million. Aggrieved by that decision,
the applicant fled a reference under rule 11 (2) of the Advocates (Remuneration) Order before the superior court which, in a
brief Ruling, dismissed the applicants reference.
This was an appeal against an order of the High Court dismissing the appellants reference.
The issues for determination before the Court of Appeal were whether the High Court was right in upholding the decision of
the taxing master and whether the instruction fees was manifestly excessive and out of proportion to the work carried out by
the advocates and it should have been reduced further.
Held:
1. The High Court had erred in coming to the conclusion that the taxing offcer had applied the correct principles and had
come to the right decision. Indeed the only professional work done by the respondent which was the subject of the instruction
fee was the petition for winding up of the company fled by the respondent in their capacity as their advocates. The matter
only named one respondent and was settled within 12 days of the fling of the petition and the prayer sought was to wind up
the company. That was a normal, simple, straightforward winding-up petition.
2. The instruction fee awarded to the respondent was manifestly excessive, unjust and completely out of proportion with
the work carried out by them. The taxing offcer failed to correctly apply the principles set out in Joreth vs Kigano [2004]
EALR 93, and the judge was in error in not setting aside the award.
Appeal allowed, order set aside.
____________________________________
51
Nature of the Jurisdiction of a Single Appellate Judge
Eddy Ndeto Gitetu v Kenya Commercial Bank Ltd [2009] eKLR
Civil Application 77 of 2004
E. O. Okubasu, J. W. Onyango Otieno & J. G. Nyamu
October 16, 2009
Civil Practice and Procedure - extension of time - time for fling a notice of appeal -factors to be
satisfed by the applicant- principles applicable in such applications - reference to the full Court
of Appeal against a decision of a single appellate judge dismissing an application for extension
of time - nature of the power of a single appellate judge on such an application - circumstances
in which the full court will interfere with the exercise of the judges power extent to which a
single appellate judge may go in considering the merits of the intended appeal and fnding it
frivolous - Court of Appeal Rules, Rule 4
The reference arose from an application for extension of time to fle a notice of appeal against the
ruling of the High Court. The applicant made the application to the Court of Appeal where it was
presided over by a single appellate judge. The single judge consequently dismissed the application
and in his ruling, he noted that the applicant had satisfactorily explained the reasons for delay
in fling the notice of appeal in time. He however went further to state that if the applicant had
satisfed the court that the intended appeal was not frivolous, which he had failed to do, the judge would not have considered
the delay as being inordinate or that the extension of time would be prejudicial to the respondent.
The applicant was aggrieved by the decision and referred it to the full court. He argued that the single appellate Judge had
gone into the merits of the intended appeal rather than dealing with the question whether the notice of appeal could be fled
out of time. It was the applicants contention that even though the single Judge was satisfed with the explanation given for
the delay in fling notice of appeal, he went too far in his ruling and in so doing he had denied the applicant the simple right
of fling a notice of appeal.
Held:
1. In an application under Rule 4 of the Court of Appeal Rules, a single Judge exercises an unfettered discretion but such
discretion has to be exercised judicially and upon proper principles of law.
2. In exercising the unfettered discretion as granted by the rule, the single member of the Court did so on behalf of the whole
Court and the full bench of the Court would only be entitled to interfere with the exercise of the discretion if it was shown
that in the process of exercising the discretion, the single Judge,
a)Took into account an irrelevant matter which he ought not to have taken into account or;
b)He failed to take into account a relevant matter which he ought to have taken into account or;
c)He misapprehended some aspect of the law applicable or;
d)His decision was plainly wrong and could not have been arrived at by a reasonable tribunal properly directing itself to
the evidence and the law applicable to it.
3. A reference to the full Court is not an appeal and it is not enough to show that the full court would have come to a different
result if it had been sitting in the place of the single Judge.
4. For an applicant to succeed in an application under Rule 4 of the Court of Appeal Rules, he has to satisfy to the Court
that
a)The delay was not inordinate and has been suffciently explained.
b)The intended appeal was arguable
c)No prejudice would be caused to the respondent if the application to extend time was allowed.
4. The unfettered discretion granted under Rule 4 to extend the time for lodging an appeal is only subject to it being granted
on terms as the Court may think just. The Court could grant extension of time, on the basis that an intended appeal was an
arguable one and it would therefore be wrong to shut an applicant out of Court and deny him the right of appeal unless it could
fairly be said that his action was, in the circumstances, inexcusable and that his opponent was prejudiced by it.
5. Even though the single Judge had the foregoing in mind and was satisfed with the reason given for the delay he went on
to dismiss the application on the ground that the intended appeal was frivolous. The single Judge had hence gone too far as
he dealt with the merits of the intended appeal and proceeded to declare the same frivolous.
6. In applying the principles to the case, it followed that the full court could accordingly interfere with the exercise of the
discretion of the single Judge.
Reference allowed, order of the single Judge set aside, extension of time order granted.
E. O. Okubasu
Expeditions Hearing of Election Petitions
Electoral Commission of Kenya & another v Ayub Juma Mwakwesi [2009] eKLR
P.K. Tunoi, P.N. Waki & D.K.S. Aganyanya Jj. A
October 16, 2009
Election Petition - procedure - procedure by which an election petition may be disposed
- need for expeditious hearing and disposal of petitions - respondents to a petition fling
motions for the striking out of the petition on the ground that the returning offcer having
been struck off as a party to the petition, the petition could not proceed - power of the
court to either summarily reject a petition or list it for hearing - whether this power is
discretionary or mandatory - matters a petition court should consider in exercising such
power - National Assembly and Presidential Elections Act (Cap. 7) section 22 - National
Assembly Election (Election Petition) Rules, 1993 rule 22
The appeal arose from an interlocutory ruling of the High Court by which the court
refused to admit to hearing and instead, struck out two identical notices of motion fled
by the Electoral Commission of Kenya, the 1
st
appellant, and Mwakwere Chirau Ali, the 2
nd
appellant. The motions sought to
strike out the election petition fled against them by Ayub Juma Mwakwesi, the 1
st
respondent. By an application, the appellant
had sought orders for stay of further proceedings pending the hearing and determination of the application and striking out of
the petition. The grounds stated were that the appeal by the 2
nd
respondent, the returning offcer who later ceased to be a party
to the petition, having been allowed the inevitable consequence was that a petition could not be sustained in view of the fact
that an important and absolutely necessary party to the petition had been removed from it. He further argued that allowing the
respondents to proceed with the petition would be prejudicial to the 2
nd
appellant in that it would be tantamount to asking the
court to adjudicate upon the petition against the 1
st
appellant on the basis of unproved wrongs or mistakes allegedly committed
by a party not before it. The 1
st
appellant, the Electoral Commission of Kenya, also sought orders that the petition against it
be struck out on similar grounds.
In rejecting the two applications the court stated that it had a wide discretion to admit for hearing certain applications in the
course of a trial in exercise of its inherent residuary power in order to maintain its character as a court of justice. In its view,
when an election court chose to list an election petition for hearing it could not entertain an interlocutory application to have
it rejected save for those other applications specifed in the rules. Election petitions were to be concluded in an expedient
manner. It was for those reasons that the High Court declined to admit the aforesaid motions. The crux of the appeal before
the court was whether or not the High Court erred in not admitting to hearing the two notices of motion
Held:
1. Section 22 of National Assembly and Presidential Elections Act and rule 22 of the National Assembly (Elections Petition)
Rules 1993 gave power to the election court to admit to hearing certain applications in the course of a trial in exercise of
its inherent residuary power in the interest of justice. The Rules further mandated the court to regulate its proceedings, to
adjourn or to continue to hear the petition. The court could either reject the petition or in the alternative list it for hearing. In
the particular circumstances of this case, the High Court had exercised its discretion judicially.
2. There was evidence of an attempt to buy time and to see that the election petition was rendered meaningless by effuxion
of time. To allow the appeal would in fact be rewarding the appellants attempt to prevent conclusion of the petition and would
instead negate the principle that election petitions should be disposed of expeditiously.
Appeal dismissed.
____________________________________
Admiralty Law
PIL Kenya Ltd v Joseph Oppong
Civil Appeal No. 102 of 2007
S.E.O. Bosire, J.W. Onyango Otieno & J.G. Nyamu, JJ. A
October 16, 2009
Admiralty law bill of lading nature of a bill of lading nature of legal relationship created by a bill of lading owner
giving oral instructions to amend the name of consignee effect of the amendment on the bill of lading and the relationship
53
between the parties whether there was privity of contract between the owner of goods and a
ship owner ship owner declining to release the goods to the owner due to conficting claims
made upon the goods ship owner advising the goods owner to obtain a court order for the
release of the goods whether the ship owner was a bailee whether the ship owner should
have taken interpleader proceedings to determine the rightful owner of the goods whether
the goods owner had a cause of action against the ship owner for breach of contract and for
damages for the loss suffered on account of the delay in releasing the goods remoteness of
damage mitigation of damage whether the ship owner was liable to pay the legal costs
and demurrage charges incurred by the goods owner.
Evidence evaluation of evidence duty of a trial court to evaluate and anlyse all the evidence-
duty of a frst appellate court to re-evaluate and analyse the evidence afresh.
Civil Practice and Procedure judgment form of judgment matters which a judgment
should contain judgment failing to give an analyses and evaluation the evidence of one
party whether such judgment was proper - Civil Procedure Rules Order 20 rule 4
Civil Practice and Procedure res judicata judicial estoppel bar against bringing a suit
in respect of which there were previous proceedings by similar parties regarding the same subject matter application of res
judicata where a party attempts to bring subsequent proceedings over a matter which the party had an opportunity to raise
and litigate but failed to raise in previous proceedings - Civil Procedure Rules Order 20 rule 4.
Damages remoteness of damage mitigation of damages - proximate and remote cause of loss and damage matters the
court will consider in evaluating the proximity of damage to the action that is alleged to be the cause of the damage duty of
a claimant in damages to mitigate his damages - whether ship owner was liable for the legal costs and demurrage charges
incurred by the goods owner due to the delay in releasing the goods whether the goods owner had mitigated his damage.
Civil Practice and Procedure interpleader proceedings nature of interpleader proceedings and circumstances in which
they may be taken ship owner holding goods in respect of which the goods owner had given oral instructions changing the
consignee three persons raising conficting claims to the goods ship owner declining to release the goods whether the
ship owner should have taken interpleader proceedings.
Civil Practice and Procedurewithdrawal of suiteffect of notice of withdrawal Civil Procedure Rules Order XXIV rule 1
The respondent was a Ghanaian national who in
2002 was living in Japan where he was engaged in
the business of exporting motor vehicles, spare parts
and electronic goods. Because as a foreign national he
could not immediately trade in Uganda, he entered into
an arrangement with one Alice, who was a Ugandan
national and a friend of his brother, under which he
would consign the goods to Uganda under Alices name.
Under this arrangement, the respondent dispatched a
goods container to Uganda via the port of Mombasa in
Kenya for which the bill of lading named Alice as the
consignee. The goods were shipped by the respondents
shipping agents in Japan aboard a ship owned by PIL, a company of which the appellant was its Kenyan agent.
The container arrived in Mombasa on March 18, 2000. By then, however, the respondent had fallen out with Alice and he
no longer preferred her to be the consignee. Upon his instructions, the shippers amended the bill of lading to name him as
the consignee in place of Alice. The shippers then notifed the respondents agents in Japan about the change and the agents
sent a fax message to the appellant advising it not to release the container to Alice and secondly, to change the status of the
consignment from house-to-house to pier-to-pier. The effect of this last change, according to shipping practice, was to make
the consignment not attract demurrage charges on arrival at the port of destination for a designated period. The respondent
would only be required to pay terminal handling charges which according to the respondent amounted to USD 80.
In the meantime, Alice approached the appellant and claimed the goods with the original bill of lading. However, the appellant
having been advised of the change in the consignee, she declined to release the cargo to her. Later, Jeneby, a third claimant
who alleged that Alice had sold the consignment to him, claimed the goods and he was also turned away by the appellant.
Later, when the respondent himself claimed the goods, the appellant declined to release them to him and advised him to
obtain an order from a court of law for the release of the goods ostensibly because the respondent was not able to resolve
the conficting claims of Alice and the respondent. Thereafter, the respondent fled suit No. 390 of 2000 in the High Court of
Uganda against Alice claiming, among other relief, an order preserving the consignment in the Customs Bonded Warehouse
of the Uganda Revenue Authority until the further orders of the court or until the property was released to him. The Court
issued the preservation order on June 13, 2000.
J. G. Nyamu
In the meantime, Jeneby, the third claimant, fled a suit in the High Court of Kenya in Mombasa naming the appellant as the
defendant and claiming the consignment as purchaser from Alice. Along with the suit, Jeneby sought an interlocutory mandatory
injunction to compel the appellant to release the container. The Court (Waki J) dismissed the application. Jeneby then fled
a notice of withdrawal or discontinuance of the suit in November 14, 2000. However, despite the notice of withdrawal, an
application for the amendment of the plaint to include the respondent as a party was feld on the following day and allowed
by the Court (Tutui, CA) with an order for the fling of an amended plaint.
In February 2001, the appellant entered into a consent with Jeneby in the Mombasa case under the terms of which the appellant
agreed to release the container to the respondent subject to the respondent paying to the appellant USD 3000, the appellant
paying a deposit of Kshs. 190,000 to the respondent if the state of the container was house to house and if the status was pier
to pier, the respondent to pay port handling charges and other charges totalling to Kshs. 10,280. Ultimately, the respondent
paid the USD 3,000 and the container was released to him.
In the meantime, Alice had applied to be joined as a party to the Mombasa suit and sought an order to set aside the consent
and to stay its execution. The application was heard and declined. Later, the respondents costs in that suit were taxed at
Kshs. 1,100,000.
The shipping agent advised the consignor to seek a court order before the goods could be released to him
Subsequently, in September 2001, the respondent fled a suit in the High Court at Mombasa against the appellant seeking
compensation for loss and damage he had suffered due to what he termed as the appellants failure to comply with his instructions
regarding the release of the container. The respondent claimed the expenses of both law suits, the cost of his accommodation,
travel and upkeep; the demurrage charges, loss of profts and monthly income owing to the delay in releasing the container.
In its written statement of defence, the appellant, which was named as sole defendant, denied the claim, and on the main averred
that as there were three parties claiming the container, it could no release it to the respondent. Besides, the appellant further
stated, there was a pending suit with the container as the subject matter, and it could not therefore release the container otherwise
than had been agreed by the consent of the parties to the suit. The appellant also averred that as it was not a party to the suit
in Uganda, and as it was also not the plaintiff in the suit in Kenya, it was not liable to pay any costs to the respondent. The
appellant pleased the doctrine of res judicata to argue that Jenebys suit was still pending and on that account the respondent
was precluded from continuing with his suit as it raised the same or substantially the same issues.
The High Court (Khaminwa, J.) found that the appellant had received instructions from the shipper to release the container
to the respondent but which instructions the appellant ignored and thus breached its contractual obligation to hand over the
container to the consignee. She also found that there was unnecessary delay in releasing the container which led the respondent
to incur expenses to secure its release. She therefore found the appellant liable to the respondent in damages. The Judge
accepted the respondents fgures on expenses incurred in prosecuting both the Uganda and Kenya suits made an award on
them. She declined to award any sum for loss of profts because in her view, the respondent did not offer proof thereof. She
also considered that the claim for loss of monthly income was too remote and as was the claim for general damages for breach
of contract. The Judge however, awarded USD 3,000 for demurrage charges paid by the respondent pursuant to a the consent
order in the Mombasa suit. The appellant appealed against the decision.
Held:
Majority: Onyango Otieno & Nyamu JA
Dissenting: Bosire JA
Per Onyango Otieno JA
1. It was the duty of the Court of Appeal, as a frst appellate court, to analyse and evaluate the evidence on record afresh
and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and
seeing the witnesses and their demeanour and giving allowance for that.
2. There was privity of contract between the respondents clearing agent and the shipper which was appellants principal. The
respondent who was the consignee was agent of the clearing agent who had contracted with the shipper which was appellants
principal. He could enforce the contract between their two principals. In any event, one could not stop a consignee from
suing the carrier for goods short delivered or for delivering goods in physical condition that did not answer the description
of the same goods in the bill of lading. If the respondent, being a consignee, could successfully sue the appellant on those
grounds, then he could sue for non-delivery of goods or failure to deliver goods in time to him.
3. The goods were to be delivered to the consignee who, according to the correction in the bill of lading, was the respondent
and who was in any case the owner of the goods in the frst place. That fact gave the respondent the authority to demand the
same goods and to sue for failure to deliver them or for refusal to deliver them if such refusal was deliberate and in breach of
the terms in the bill of lading and ipso facto for deliberate delay in delivering them.
55
4. Whereas it is not necessary for every judgment to contain what each witness said in evidence as that would in some cases
mean irrelevant evidence being included in the judgment and in that would make judgments unnecessarily long and thus delay
expeditious disposal of the matter, and whereas a judgment in a civil case is proper if it complies with Order 20 rule 4 of the
Civil Procedure Act, where a court has decided to set out evidence of the parties to a suit, even if only briefy, it should, for
purposes of apparent impartiality, set out the conficting evidence of both parties before analyzing and evaluating the same.
In its judgment, the High Court had failed to set out, analyse and evaluate the evidence adduced on behalf of the appellant
and had only cited and relied on the evidence of the respondent.
There was privity of contract between the clearing agent and the shipper
5. The High Court had erred in failing to consider the effect of other claimants to the goods together with court cases and
orders made by the courts in Uganda and Kenya upon the release of the goods; the defence that the case was barred by the
operation of law as Jenebys suit, to which the appellant and later the respondent were parties, had not been concluded and
was a previous suit on the same subject matter, namely, the release of the goods to the respondent; and the legal effect of the
consent order made in Jenebys suit upon the claim of USD 3,000 later claimed in the suit before the Court.
6. There was confusion as to whose claim to the container was genuine. That confusion was caused by the respondent and
in the circumstances, the appellant had a duty to act cautiously. The appellants advise to the respondent to obtain a court
order for the release of the goods was proper in the circumstances. Therefore, the delay in releasing the goods up to the time
when the courts order was extracted and purportedly served upon the appellants branch in Uganda constituted an explained
delay on genuine grounds.
7. Even with the suit fled by Jeneby, the appellant could not release the goods to Jeneby with the previous preservation
order served upon it through its branch in Ugandastill operating. The orders sought by Taita were dismissed but immediately
thereafter, the respondent had himself joined as a party in that case. The effect of that was that the appellant and the respondent
were thereafter reduced to the status of being the only two parties in that suit. The appellant was not liable to the respondent
for delay in releasing the goods up to that time.
8. On whether the respondent was estopped from fling the suit from which this appeal was preferred, by the time the respondent
sought to be joined as a party to Jenebys suit in Mombasa, his allegations that the appellant had breached its duty to release
the goods to him had crystalised and he should have made his claims for such breach in that suit since by that time allegations
had been made that the goods had been released to Alice who had sold them to Taita who was in turn claiming the release of
the same goods to him. If there was any breach by the appellant as alleged by the respondent, it was already complete and
the respondent should have made a claim based on it in that case. The High Court had not considered this issue.
9. In the absence of evidence as to what had been the outcome of the litigation in Uganda with regard to costs, bill of costs
and taxation thereof, there was no ground for awarding USD 2,000 to the respondent as his expenses in the suit.
10. The award for USD 3,000 being demurrage charges, which was paid pursuant to a consent entered by the parties, could
only be made after setting aside the consent order. There was no order in the entire record setting aside that consent order.
The awarding of the amount to the respondent amounted to setting aside the court order entered Jenebys suit. The plaint
and the evidence in the respondents suit did not seek the setting aside of the consent order and did not plead fraud, mistake,
misapprehension of facts that would have been the requisites for setting the order aside.
11. Even though there was an amendment to the bill of lading which effectively meant
that demurrage would not be charged, by entering into a contract before the court to
pay the USD 3,000, the respondent was waiving his rights under that provision and
once the consent order was entered, he was caught up with it and if he wanted it set
aside, he had to bring himself within the law and not merely ask for it as he did by
way of a statement in his evidence. The award was not proper in law.
12. As regards the award of USD 8,234 for accommodation, travel and upkeep
expenses, the trial court had failed in its duty to meticulously ensure the proof of each
of the receipts involved and their relevance to the case.
Per Nyamu JA
1. Since all the claimants of the goods came to the scene and almost simultaneously
claimed the goods as a result of amendments to the bill of lading which amendments
in turn were prompted by the respondent himself, he was the author of his own wrong
and it would be unconscionable for him to beneft from his own wrong.
2. Although the appellant was in a dilemma due to the conficting claims, the ideal thing would have been to institute
interpleader proceedings. However its intention to interplead was overtaken by the institution of the Ugandan case and the
two Kenyan suits. As all the suits focused on the ownership of the goods and since the appellant did not claim ownership to
the goods, interpleader proceedings would have been unnecessary.
3. The respondent did not have a cause of action against the appellant. As the original bill of lading was amended and
therefore replaced on the instructions of the respondent and the appellant in the face of the conficting claims considered it
unwise to release the goods to any of the claimants, a demand letter from the respondents or an oral demand of the release of
the goods could not constitute a contract upon which damages could be claimed.
4. Even assuming that there was an agency relationship between the appellant and the respondent, the loss and damages
claimed do not spring from any agency relationship. Instead damages for breach of contract were claimed. Ordinarily,
damages arise from either a contractual breach or a tortious breach. On the other hand the main claim in agency relationships
against agents are secret profts and not damages. Therefore, since there was no proof of any contract or its breach the damages
awarded, whether special or general damages, were improper because they did not spring from any breach of contract, tortuous
breach or agency relationship.
It was improper for the superior court to have entertained another suit brought concerning the same subject
matter and between the same parties or parties litigating under the same title
5. A bill of lading is frst and foremost a contract between a shipper and a ship-owner. Following the amendments to the
bill of lading at the instance by the respondent, the original bill of lading no longer had legal effect as it could not be used to
claim possession of the goods. In the circumstances, there was no contract between the parties. To fll the void created, the
appellant as the fnal carrier was perfectly entitled to deal with the goods as directed by the court.
6. Even assuming that the two parties had a contractual relationship, there was no breach on the part of the appellant and the
special damages and damages were not payable because they were too remote since the appellant was frstly not in breach or
had nothing to do with the breach, or it had nothing to do with the events which gave rise to the goods being held in Mombasa.
Where the damages are not the natural and probable consequences of the breach, they are too remote Compania Navifra
Maro Pa Sa v Bowaters Lloyd Pulp and Paper Mills [1955] QB 68, 98-9. The alleged loss of was never in contemplation of
the parties at the time the bill of lading was entered into.
7. In the circumstances, the only duty which the appellant had was to release the goods to the consignee as per the original bill
of lading but this bill having been admittedly amended, that duty came to an end and the appellant became a party entitled to
interplead or to await the determination of the ownership suits. Although the appellant did not institute interpleader proceedings
against the claimants, the effect of the Kenyan suit and the Ugandan one case was the same since the appellant did not claim
any ownership of the goods and was ready to release the goods as per a court order or by an agreement between the claimants
upon payment of its charges. The appellant had therefore on the ground acquired all the attributes of an interpleader.
8. Remoteness of damage is reserved for every case where the defendant denies liability for certain of the consequences
that have fowed from his breach and whether the damage is too remote is a question for the judge. Secondly, whether the
kind of damage is suffciently proximate as per the rule in Hadley v Baxendale (1854) 9 Exch 341 the question which arises
is the measure of damages.
9. The special damages were also not proved. There was no link between the
accommodation expenses incurred by the respondent in Uganda in respect of hotel
accommodation with any alleged liability of the appellant.
10. Even if the appellant was in breach of contract, the respondent would have
had a duty to mitigate his loss by either having the conficting ownership claims
both in Kenya and Uganda expeditiously disposed of or to desist expending more
money than the value of the goods the subject matter of the appeal.
11. It was improper for the superior court to have entertained another suit brought
concerning the same subject matter and between the same parties or parties litigating
under the same title. There was judicial estoppel or a res judicata bar regarding
the institution of the suit from which the appeal had emanated. In view of the fnal
consent order in Jenebys case, all issues which the superior court was being asked to adjudicate upon in the respondents
suit were directly in issue in that suit and the issues were between the same parties or parties litigating under the same title.
The respondents subsequent suit was therefore res judicata. Alternatively, even if the issues raised were not the same, all the
issues in the subsequent suit could have been raised in the earlier suit and if they were not raised they were deemed to have
been raised under the doctrine of judicial estoppel or issue estoppels. The respondents suit was therefore not sustainable in
law and ought to have been dismissed.
12. In certain situations similar to the matter before the Court there can arise an estoppel by silence and acquiescence -
Pacol Ltd & 8 others v Trade Lines Ltd & another (The Times, February 8, 1988).
13. Again, the respondent was caught by the species of estoppels founded on general equitable principles not to allow a
party to act in unconscionable manner established in the English Court of Appeal case Amalgamated Investment and Property
Co. Ltd v. Texas Commerce International Bank Ltd [1981] 2 WLR 554, 3 WLR 565. The suit instituted by the respondent in
Kenya after the Uganda Courts interim order, considering there had not yet been a fnal order made in the Uganda case, was
unconscionable and unjust for the respondent.
14. The legal costs in Uganda were matters between the parties to the suit or orders of costs by the Uganda court. There
was no link between the costs in Uganda to the relationship in Kenya between the appellant and respondent and the costs
57
could only have been awarded by the Uganda Court itself. Moreover, there was no such order and the appellant was not a
party to that suit.
Order by the majority of the court (with Bosire JA dissenting): Appeal allowed with costs of the appeal and costs in the
superior court to the appellant.
The dissenting opinion of Bosire JA:
1. The change of consignee rendered the original bill of lading worthless. Alice could not use it to claim the consignment
unless the instructions changing the consignee were revoked.
2. The effect of a notice of withdrawal of a suit under Order 24 rule 1 of the Civil Procedure Rules is to terminate the suit
subject to costs to the opposite party.
3. There was no contract between the appellant and the respondent concerning the container or obligating the appellant to
release the cargo to the respondent. There was however a contract of bailment between the shipper and the ship owners to
which the bill of lading was evidence - Mason v Lickbarrow 1 BI.H. 359.
4. While there was no privity of contract between the appellant and the respondent, strictly so speaking, it could not be
gainsaid that the appellant had a legal duty on the basis of the amended bill of lading to deliver the container to the respondent
at the earliest possible time. The appellant was agent of the ship owner and it was obliged to do what the ship owner had
covenanted to do, namely, deliver the cargo to the consignee.
5. It was not open to the appellant to ask the claimants to obtain a court order to direct it as to whom it was to make delivery.
The bill of lading was clear as to who was to take delivery. If at all it was in doubt then it was its duty to take out interpleader
proceedings for the court to determine the rightful consignee. The evidence tendered was clear that the original consignee
was Alice. The bill of lading was then amended to show that the consignee was the respondent. There was no basis for doubt.
The appellant was therefore a bailee with specifc instructions.
6. As regards the suit fled by Jeneby, by the time that a notice of withdrawal of suit was fled, the respondent had not been
made a party to the suit. If the notice of withdrawal was valid, the High Court could not thereafter properly order for an
amended plaint to be fled upon an application by a the respondent to be joined as a defendant to the suit because there was
no suit in existence respecting which an amended plaint or amended defence could be fled. A plaint could not properly be
amended at the instance of a party who was not the plaintiff. The plaintiff in that suit did not need the leave of the court to
withdraw his suit nor was a court order necessary to give effect to the withdrawal. All that was necessary was for the plaintiff
to fle a notice of withdrawal before judgment. After judgment, however, the leave of the court was necessary. The superior
court was in grave error to continue with the case without frst ascertaining whether the notice of withdrawal of suit was
valid or not.
7. The Civil Procedure Rules Order 24 rule 4 made it
clear that the respondents suit was not res judicata. As at
the date the consent was recorded, there was technically
no suit in existence. Notably, there was no bar in bringing
a fresh suit. Jeneby having either discontinued his suit or
abandoned it there was no impediment to the respondent
bringing his suit. So the respondent had the right to bring
his suit if he thought he had the necessary evidence to
prove his claim.
8. Regarding the claim of USD 2000 which the respondent
said he paid to his lawyers in Uganda, the respondent
had conceded that Alice was ordered to pay those costs.
The High Court had improperly allowed that part of the
respondents claim. By allowing it the respondent would
receive double beneft for the same claim.
9. The Deputy Registrar of the superior court having taxed the respondents bill of costs at Kshs.1,100,000 in March, 2007
after the respondent had fled the suit but before judgment, the High Court should have discounted the claim of USD 1,000.
As apparently both awards were made against the appellant for the same purpose, viz, to compensate the respondent for loss
he incurred in the case, they both could stand.
10. Demurrage charges are agreed charges payable by the charterer of a ship for each day taken in loading or discharging cargo
beyond the times fxed for the operation. In Lockhard v Falk (L.R. 10EX. 132), it was held that the term is more applicable
to delay in time after the expiration of a fxed time than delay after the expiration of a reasonable time. Be that as it may, the
respondent was asked to and he paid an agreed sum of USD 3,000 for delay in discharging the container. The charges had
been incurred as a result of the appellant improperly refusing to release the container to the respondent within a reasonable
time. In the circumstances, the respondent was properly awarded that fgure.
I would allow [the appeal] in part, set aside awards made for legal fees for the Ugandan case and [the Mombas] Case, but
affrm the award of USD 3,000. I would order that each party bear its own costs of this appeal, but the appellant shall bear
the costs of the suit in the High Court to be taxed if not agreed. As my brothers Onyango Otieno and Nyamu, JJ A have come
to a different conclusion, this appeal is allowed on terms proposed by Onyango Otieno JA.
____________________________________
Applications for Review of a Court Decision Upon the Discovery of new Evidence
Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR
E. M. Githinji, PN Waki & Alnashir Visram
October 16, 2009
Civil Practice and Procedure - review - power of a court to review its own decisions
circumstances under which the court reviews- discovery of new and important facts - duty
of the applicant to clearly state the grounds for an application for review - nature of the
new facts discovered which may form the basis of such an application Civil Procedure
Rules Order XLIV order 44
Evidence - expert evidence handwriting experts- nature of expert evidence and how a
trial court is to treat such evidence- law applicable in considering the opinion of document
examiners or handwriting experts
The appellant had initially fled a suit challenging the will of her deceased mother on the
ground that the signature purporting to be that of her mother on the will and the transfer
conveying the right to property to the respondent was a forgery. The High Court heard
viva voce evidence, which was tested in cross-examination by counsel on both sides.
After considering all the evidence, the court preferred the evidence of the eye witnesses
over opinion evidence given by the two handwriting experts and upheld the validity of the
transfer document and the will of the deceased. All the claims made by the appellant were
hence dismissed. After some time, she took out a notice of motion seeking an order that the judgment delivered be reviewed
and set aside. The application was on the ground that there were new facts that had come to her attention which were not
previously in her knowledge and were not therefore brought to the attention of the court. She alleged that the signature of
the Land Offcer appearing in the transfer document had been forged and further that the transfer did not comply with the
requirements of Cap 300 Laws of Kenya.
Where review was sought on the ground of discovery of new evidence but it was found that the petitioner had not
acted with due diligence, it was not open to the Court to admit evidence on the ground of suffcient cause
In reviewing the judgment, the Judge summoned the Land Registrar for cross-examination on his affdavit. He also summoned
the document examiner who in his affdavit questioned the signature. Both witnesses were cross-examined at length by counsel
on both sides. In the end, the Judge preferred and believed the evidence of the Land Registrar and accepted the explanation
he gave that his signature may have appeared different from his usual one due to the accidental injury to his right hand shortly
before appending the disputed signature to the transfer over the opinion of the document examiner. The Judge also accepted
the evidence of the Land Registrar that the form of the transfer used was approved by the Chief Land Registrar, which in any
event, was not a new matter to the appellant.
The appellant lodged an appeal on the ground that the document examiners opinion had been improperly rejected by the
Court.
Held:
1. An application for review under Order 44 r 1 of the Civil Procedure Rules had to be clear and specifc on the basis upon
which it was made. Even though the motion before the superior court was based on the discovery of new facts, it was not
every new fact that would qualify for interference with the judgment or decree sought to be reviewed. Discovery of new and
important matter or evidence must be one which, after the exercise of due diligence, was not within his knowledge or could
not be produced by him at the time when the decree was passed.
E. M. Githinji
59
2. Applications on the ground of discovery of new facts had to be treated with great caution and as required by Rule 4(2)
(b). The court had to be satisfed that the materials placed before it in accordance with the formalities of the law proved the
existence of the facts alleged. Before a review could be allowed on the ground of discovery of new evidence, it had to be
established that
a)The applicant had acted with due diligence
b)The existence of the evidence was not within his knowledge
3. Where review was sought on the ground of discovery of new evidence but it was found that the petitioner had not acted
with due diligence, it was not open to the Court to admit evidence on the ground of suffcient cause. It was not only the
discovery of new and important evidence that entitled a party to apply for a review, but also the discovery of any new and
important matter, which was not within the knowledge of the party when the decree was made.
4. The authenticity the signature of the Land Registrar ought to have been challenged earlier in the originating summons as
the transfer was not a new matter. It hence meant that there was no due diligence on the part of the appellant.
5. The contention that the transfer itself was not in the prescribed form was accordingly rejected as the transfer was in
possession of the respondent long before the institution of the Originating Summons and it could not have been argued, that
the appellant or her advocates had not noticed that it was not in the prescribed form. If any of them did, then they had not
been diligent enough to fnd out whether the form of the transfer was approved.
6. With regard to hand writing witness, the court could not blindly accept such opinion; it was the duty of the court to satisfy
itself after examination whether the experts opinion could be accepted. In areas of confict it was prudent to look for other
evidence so that forgery could be excluded on the one hand, and mistaken identifcation excluded on the other. The duty of
the court in weighing the opinion evidence of an expert would be more onerous where such opinion was the only material for
consideration, than where there was direct evidence on the author of the handwriting.
7. There was evidence of the Land Registrar himself who swore that he signed the transfer. The acceptance by the Land
Registrar that there were differences between some of his known and specimen signatures and the explanation given by him
was not a confrmation that the document examiner was right. The credibility of the two witnesses had to be weighed and
on that the best judge was the person who heard and watched the demeanour of those witnesses. The Judge had believed the
Land Registrar on the basis of his credibility and there was hence no reason to interfere with that assessment.
Appeal dismissed.
____________________________________
Mandatory Injunctions
Stephen Kipkebut T/A Riverside Lodge And Rooms v Naftali Ogola [2009] eKLR
Civil Appli 146 of 2008 (UR 93/08)
October, 2009
S. E. O. Bosire, P.N. Waki & A. Visram JJ. A
Civil Practice and Procedure-injunction-mandatory injunction-application for a temporary
mandatory injunction and stay of execution of an order of the High Court pending appeal-
onus on the applicant to persuade the court that the order sought was deserved-principles
the court will apply in deciding an application for a mandatory injunction-Court of Appeal
Rules rule 5(2)(b)
This was an application under rule 5 (2)(b) Court of Appeal of the Rules seeking two
substantive orders: that the court stay further proceedings of the superior court and to stay
execution of the orders of the court pending the hearing and determination of the applicants
intended appeal; and that a temporary injunction be issued compelling the respondent to give
vacant possession of the applicants parcel of land pending the hearing and determination
of the applicants intended appeal. The Court heard the application in the absence of the
respondent who though having been served with the summons failed to respond to it.
The applicant argued that the intended appeal was arguable because there was no reason
to deprive the applicant of a mandatory injunction when there was no opposition to it.
Furthermore, it was argued that there was no dispute and that the applicant was the lawful owner of the leasehold title as
pleaded and therefore there was no valid defence. In rejecting the application, the superior court stated, inter alia, that the
prayer in the application asking for the plaintiff to be restrained from being on the property was a mandatory prayer for an
injunction which was not available except in exceptional circumstances. The superior court instructed the plaintiff to proceed
to the main suit for hearing if he wished to have the defendant evicted from the land.
S. E. O. Bosire,
Held:
1. A mandatory injunction was likely to be more drastic in its effect than a prohibitory injunction. At the trial of the action,
the court could of course grant such injunctions as the justice of the case required; but at the interlocutory stage, when the fnal
result of the case could not be known and the court had to do its best, the case had to be unusually strong and clear before a
mandatory injunction could be granted, even if it was sought in order to enforce a contractual obligation.
2. The matter had to be tempered by judicial discretion which would be exercised so as to withhold an injunction more
readily if it was mandatory than if it was prohibitory. Even a blameless plaintiff could not as of right claim at the trial to
enforce a negative covenant by a mandatory injunction.
3. Although it was not possible to state in a comprehensive way the grounds upon which the court would refuse to grant
a mandatory injunction in such cases at the trial, they would at least include the triviality of the damage to the plaintiff and
the existence of a disproportion between the detriment that the injunction would infict on the defendant and the beneft that
it would confer on the plaintiff. The basic concept was that of producing a fair result, and this would have involved the
exercise of a judicial discretion.
4. On motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction than it would
be to grant a comparable prohibitory injunction. In a normal case the court had to, inter alia, feel a high degree of assurance
that at the trial it would appear that the injunction was rightly granted; and this was a higher standard than was required for
a prohibitory injunction. The trial court had been alive to these principles in considering prayers for the grant of a temporary
mandatory injunction. Perhaps it could only be faulted for failure to cite its authoritative sources for such principles.
5. Granting the mandatory injunction sought at this stage would leave nothing further to wait for in the intended appeal and
the court was not inclined to do so. The success of the intended appeal would not be rendered nugatory.
6. The applicant sought orders for vacant possession of the disputed plot as well as mesne profts. These were quantifable.
There was no averment in the supporting affdavit that the respondent was incapable of meeting any monetary compensation
that would be ordered by the court.
7. A mandatory injunction could be granted on an interlocutory application, as well as at the hearing, but, in the absence
of special circumstances, it would not normally be granted. However, if the case was clear and one which the court thought
ought to have been decided at once; or if the act done was a simple and summary one which could be easily remedied; or if
the defendant attempted to steal a march on the plaintiff, such as where, on receipt of notice that an injunction was about to
be applied for, the defendant hurried on the work in respect of which complaint was made so that he received notice of an
interim injunction when it was completed, a mandatory injunction could be granted on an interlocutory application.
Appeal dismissed.
____________________________________
Damages in Neglegence
Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 others [2009] eKLR
P. K. Tunoi S.E.O. Bosire J.W. Onyango Otieno JJ A
November 6, 2009
Tort-negligence-special and general damages for negligence-negligence in construction-collapse of dwelling due to poor
workmanship-suit for damages in negligence-appeal against judgment in favor of the plaintiff-whether the evidence adduced
was suffcient to establish the plaintiff s case
Evidence-expert witness-expert opinion-meaning of expert-general rule regarding how a court is to treat expert evidence-where
there is a confict in the expert evidence-how such confict is to be treated or resolved-Evidence Act (Cap. 80) section 48
This was an appeal from the judgment and decree of the superior court in which judgment was given in favour of the 1
st

respondent, for a total sum of Kshs 2,013, 537.30 being the placement value of a house, special damages and refund of rent
for a period of 11 years at the rate of Kshs. 900 per month. The appellant, Amosam Builders & Developers Limited, was
the 1
st
defendant in that suit with Nakuru Municipal Council as the 2
nd
defendant. The respondent had sued the appellant on
allegations of bad workmanship and gross negligence.
Amongst the grounds raised in the appeal were that the High Court erred in apportioning the appellant with 30% liability,
and the fact that the trial court had relied on the conficting evidence of expert witnesses.
Held:
1. Section 48 of the Evidence Act (Cap. 80) made provision for evidence from expert witnesses. However, as a general rule
evidence by experts being opinion evidence was not considered binding on the court. The court had to consider it along with
other evidence and form its own opinion on the matter in issue. The court was at liberty to accept or reject evidence of experts
61
depending on the facts and circumstances of the case before it - C.D. Desouza v B.R. Sharma [1953] 26 KLR 41 at P. 42.
2. The trial Judge had come to the right decision that the collapse of the subject house was due to negligence and poor
workmanship. His apportionment of blame was based on the evidence which was presented before him, and he could not be
faulted on that score. Moreover, that courts observation of the subject building confrmed the testimony of the witnesses.
3. Obiter In Vander Donckt v Tuelluson [1849] 8 C.B. 12, Maule J said:- All persons, I think who practice a business
or profession which requires them to possess a certain knowledge of the matter in hand are experts so far as experience is
required....
Appeal dismissed.
____________________________________
Framing of a Charge for Deflement
J.M.A v Republic [2009] eKLR
R.S.C. Omolo, S.E.O. Bosire & J.G. Nyamu
November 6, 2009
Criminal law - sexual offence-deflement - deflement of a girl aged under 14 years - alternative charge of indecent assault
on a female - appeal against conviction on the alternative count and sentence of 15 years imprisonment - appeal against
conviction and sentence - defect in charge - Penal Code (Cap. 63) section 144(1), 145(1)
Sentencing - sexual offence - indecent assault on a female - sentence of 15 years imprisonment - whether the sentence was
legal - Penal Code (Cap. 63) section 144(1)
Criminal Practice and Procedure - charge sheet - statement of offence - charge sheet for the offence of deflement failing to
state that the accuseds carnal knowledge of the complainant was unlawful- whether the charge was defective - where the
charge of deflement was the main charge and there was an alternative charge of indecent assault - whether once the main
charge has been adjudged to be defective, a conviction may be entered on the alternative charge - whether the omission of
the term unlawful was a curable defect - court considering that the defect had not been raised by the prosecution or the
defence.
This was an appeal against the decision of the superior court, which while relying on the decision of the Court of Appeal in
the case of Achoki v Republic [2000] 2 EA. 283, held that the conviction of the appellant on the main charge of deflement
was wrongful as the charge was fatally defective. The appellant, J.M.A, had been charged with a main count of deflement
of a girl aged under fourteen years contrary to section 145 (1) of the Penal Code (Cap. 63) and with an alternative charge of
indecent assault on a female contrary to section 144 (1) of the Penal Code. The particulars in the charge did not allege that
the act of having carnal knowledge was unlawful.
The trial court after warning itself as to the dangers of relying on the evidence of a child, looked for and found corroboration
in the testimony of the various witnesses and the circumstances surrounding the offence. It rejected the appellants defence
convicted the appellant sentencing him to life imprisonment on the main charge.
Because of the apparent defect in the particulars of the charge, the superior court, which heard the appellants frst appeal,
quashed the conviction on the main count and set aside the sentence of life imprisonment The court, however, held that the
evidence supported the alternative count of indecent assault on a female which also failed to include the term unlawful and
entered a conviction on that charge. The High Court held that both the main and alternative counts were defective to the extent
that both failed to include in their particulars the term unlawful. It was further noted that the attention of the superior court
had not been drawn to the provisions of section 382 of the Criminal Procedure Code (Cap. 75) under which a court could
disregard an error or omission which did not result in a failure of justice.
The appellant brought a second appeal in the Court of Appeal.
Held:
1. The omission of the term unlawful in both counts was not raised by both the prosecution and the defence. The superior
court raised it on its own motion in the course of writing its judgment. It was not in all cases in which a defect detected in the
charge on appeal would render a conviction invalid. Section 382 of the Criminal Procedure Code, was meant to cure such
irregularities where prejudice to the appellant was not discernible.
2. The case of Achoki v. Republic which the High Court had relied on to confrm the conviction had involved a charge of
attempted rape under the then section 141 of the Penal Code. Rape was an offence which involved adults who are able to
consent, unlike a situation where a child was involved, and the issue of consent or lack of it is wholly irrelevant. For a child of
the age of the complainant there was no sexual act which could be regarded as lawful. This was a case in which the superior
court should have invoked the provisions of section 382 of the Criminal Procedure Code to cure the irregularity which on the
facts and circumstances of this matter was minor.
3. As regards sentence, the charge of indecent assault under section 144 (1) of the Penal Code, before it was amended by
Act No. 5 of 2003, carried a sentence of 5 years imprisonment with hard labour with or without corporal punishment. The
superior court imposed a term of 15 years imprisonment which was three times the maximum sentence then prescribed for
the offence. Obviously, that sentence was not legal. It would have been inappropriate to impose corporal punishment, as that
was discretionary and the trial court and the High Court on the frst appeal did not see it ft to exercise that discretion.
4. The alternative count was also defective as the particulars of the charge thereof omitted the term unlawful. However,
considering that the charge was a minor cognate offence to the charge of deflement, the irregularity in that charge was curable
under section 382 of the Criminal Procedure Code. Accordingly, notwithstanding the defect, the conviction of the appellant
on it by the High Court was affrmed.
Appeal allowed in part.
Notice of Intention to Sue The Government
Jackson K. Kiptoo v Attorney General [2009] eKLR
S.E.O. Bosire, P.N. Waki & Alnashir Visram, JJ. A
November 6, 2009
Civil Practice and Procedure-government proceedings-suit against the Attorney General claiming damages in negligence-
road traffc accident involving a vehicle belonging to the military-issue of the plaintiff not having issued a notice of intention
to sue to the Attorney General arising in the course of trial-High Court fnding that no notice had been issued and ruling that
it had no jurisdiction to hear the suit-appeal-jurisdiction of the court to entertain the suit-time at which issues of jurisdiction
ought to have been raised-whether the decision of the High Court was proper-Government Proceedings Act (Cap. 40) section
13A
Tort-negligence-road traffc accident-assessment of liability and award of damages-damages for loss of user and earnings-
principle of mitigation of damages-trial court having refused to admit some of the documents proving special damages-duty
of a frst appellate court to re-examine the evidence-appellant pleading negligent obstruction against the respondent-doctrine
of res ipsa loquitor
This was an appeal arising out of a suit for negligence in a road traffc accident involving the appellants and the respondents
lorries. On the material day the appellants driver had been transporting soda crates along the Naivasha/Nakuru road when
the lorry rammed into a stationary vehicle. The stationary vehicle into which they had crushed into was a lorry owned by the
Government of Kenya and assigned to the Kenya Army in the Department of Defence. The driver of the appellants lorry
died from injuries sustained in the accident. The appellant in his suit claimed negligence on the part of the respondent and its
driver for having recklessly left the vehicle parked on the road.
None of the agreed issues related to compliance with Section 13A of the Government Proceedings Act, which required that
prior to instituting any proceedings against the government, the suing party issues a notice of intention to sue to the Attorney
General. The issue was also not raised in the defence fled by the Attorney General although it was specifcally pleaded in
the plaint that demand and notice to sue had been given to the Attorney General who had failed to comply therewith. The
issue was instead raised by State Counsel in the process of cross-examining the appellant .
After a full trial the superior court dismissed the appellants suit stating that it had no jurisdiction to entertain the matter since
section 13A of the Government Proceedings Act had not been complied with. Nevertheless, as was the custom in such cases
the High Court proceeded to assess the liability between the parties and the special and general damages which it would have
awarded had it not dismissed the suit.
Amongst the issues before the appellate court was whether the superior courts fnding on the issue of jurisdiction to entertain
the matter of notice to sue which was neither pleaded nor its existence denied by the Attorney General, had been properly
determined.
Held:
1. It was the duty of the appellate court to re-examine the record afresh, re-evaluate the evidence and make its own conclusions
in the matter always remembering, however, and giving allowance for it, that the trial court had the added advantage of
hearing and seeing the witnesses and was the best judge on credibility. As to fndings made on matters of fact, the Court
was only to interfere where the fnding was based on no evidence, or on a misapprehension of the evidence or the Judge was
demonstrably shown to have acted on wrong principles in reaching the fnding - Mwanasokoni V. Kenya Bus Services Ltd
[1985] KLR 931.
63
2. The issue of notice was not raised in the pleadings or in the consent fled by both counsel. Ordinarily it ought to have
been raised in limine as it went to jurisdiction, but as jurisdiction was everything in judicial proceedings, it could be raised at
any time subject only to considerations of costs. Ordinarily again, a court would be at liberty to consider and decide on any
issue raised and argued before it by the parties, even if the issue did not arise from the pleadings or agreement by the parties.
- Odd Jobs V. Mubia [1970] EA 476 at page 478.
3. There was no basis in fact or in law for the fnding by the High Court that there was no notice issued under section 13A of
the Government Proceedings Act since the existence of the notice had not been challenged. The only challenge had related to
the form in which the state counsel had submitted the notice. Unfortunately the document was not produced in evidence by the
Attorney General who sought to challenge its form and therefore there was no basis for making a fnding on the document.
4. There had been a proper basis for assessing liability at 100% against the respondent and there was no reason to interfere
with that fnding.
5. As for special damages, the onus as usual was on the appellant to prove them strictly. The appellant had produced admissible
documents in support of his claim for special damages and such damages ought to have been granted.
6. The appellant came nowhere near proving the claim as pleaded. The court was conscious that the degree of certainty
and particularity of proof required depended on the circumstances and the nature of acts complained of. In this case, it was
possible for the appellant to tender clear evidence on the claim but they did not. The appellant was under a duty to mitigate
his loss and there was nothing on record to show what attempts were made in that regard - African Highland Produce Limited
V. John Kisorio, Civil Appeal NO. 264 of 1999 (Unreported). On the whole the court was not satisfed that the claim for loss
was proved and it declined to make an award thereof.
Appeal allowed in part; Appellant awarded Kshs. 801,100 in special damages.
____________________________________
Family Law: Custody of a Child
P.K. A v M.S.A [2009] eKLR
Civil Appli 285 of 2009
S.E.O Bosire, D. K. S. Aganyanya & J.G. Nyamu JJ. A
November 20, 2009
Civil Practice and Procedure - stay of execution - application for stay of execution
of the judgment and decree of the High Court pending appeal - matters which an
applicant is required to establish to the court applicant seeking to stay an order
of the High Court granting the custody of a child to the respondent father and
granting the applicant mother visitation rights - order restraining the applicant
from withdrawing the child from the jurisdiction of the court - effect of an order of
stay - whether an order of stay would avail much to the applicant - Court of Appeal
Rules rule 5(2)(b), 42
Family law-children-custody and maintenance-court having awarded the father
sole custody of the child-mother getting four hours visitation rights-appeal against
decision-applicable principles-best interests of the child-Children Act (No. 8 of 2001)
section 4(2).
This was an application for stay of execution of the judgment and decree of the superior court brought under Rules 5(2)(b)
and 42 of the Court of Appeal Rules. The matter before the appellate court related to the custody of a child of about 13 years
of age, who with the consent of the applicant, P.K.A, had been living with her estranged husband, the respondent, one M.S.A.
The superior court in a ruling on a custody matter had awarded the respondent sole custody of the child and only allowed the
applicant restricted visitation. The applicant came to court seeking two substantive orders; that the court issue a stay of the
decree in the superior court pending appeal and that pending the hearing and determination of the intended appeal, the Court
be pleased to allow the applicant to enjoy equal access to the child. The superior court in that custody matter, had granted the
respondent father sole custody of the child in a matrimonial dispute while granting the mother access of 4 hours a week. It
was against this decision that the application for stay of execution was launched to the superior court.
Amongst the grounds for the application were that in awarding the respondent sole care and custody of the child the superior
court had based its decision on a number of factors including the factor that the respondent was rich while the applicant was
poor with no record of employment, and that the nature of the issues before the court clearly showed that the intended appeal
would be rendered nugatory if the orders the applicant sought were not granted at an stage.
Held:
1. Before an order of stay could be granted, the applicant had to show frstly that he/she had an arguable appeal, in other
words that the intended appeal was not frivolous and secondly that refusal to grant an order of stay would render the appeal, if
it eventually succeeds, nugatory. Further, since the case concerned a child under the age of eighteen years his possible wishes
and best interest would be of paramount importance.
2. An order of stay was intended to maintain the position as it was before the order against which the stay was intended was
made or in other words to maintain the status quo as it existed then. But from the record of the superior court, the child who
was subject of the application previously lived with the respondent and it seemed that the order of stay sought, if granted,
would not be of any beneft to the applicant as it would still restore the child to the custody of the respondent.
3. As regards an order for injunction which was issued by the Judge, it was the respondent who had the custody of the
child although the applicant denied any intention of removing him from the jurisdiction of the Court. This order could not
be stayed.
4. The issue of visitation rights was an arguable point on appeal whose variation could only be determined on appeal unless
the applicant opted to go back to the superior court for it.
5. It was a legal requirement that the twin principles stated had to both be demonstrated before an order of stay could be
granted. It was the courts view that in that application only one of them, the arguability of the appeal, had been demonstrated
but not the nugatory aspect.
Per Nyamu J.A (Dissenting)
1. Concerning the frst requirement on whether the application was arguable, it was not frivolous as was evident from the
draft memorandum and the submissions.
2. On the second requirement, the applicant had in the unique circumstances of the case satisfed the requirement for an
order of stay. The appeal would be rendered nugatory were a stay order to be denied on the basis that the Court had no power
to grant such an order. The principle of the best interest of the child was relied upon in determining that there was nothing to
stop the court, upon hearing the appeal on merit, from reversing the equality of access to the child. Varying the decision in
order to allow this would be in the best interest of the child.
3. (Obiter) The right to family life is intertwined with the right of access to ones child and both are basic human rights
and are also indivisibly tied to the right to life. Basic rights though often categorized are in fact indivisible.
Appeal dismissed.
____________________________________
Change of Presiding Judge
Shadrack Ayoro Owato & 2 Others v Republic [2009] eKLR
R.S.C. Omolo, P. K. Tunoi & E. O. Okubasu
December 4, 2009
Criminal Practice and Procedure - trial -change of presiding judge- trial for murder conducted by two judges in succession
- duty of succeeding judge to inform the accused person of his right to recall the witnesses - duty of the succeeding judge to
specifcally record that the accused had been informed of that right failure by the accused persons advocates to raise the
issue of the recall of witnesses whether such failure constitutes a waiver- Criminal Procedure Code (Cap 75) section 201,
200(3), 200(4)
Evidence-identifcation evidence-evidence of a single witness-corroboration of such evidence- how the court is to treat such
evidence.
Criminal law - murder - appeal against conviction and sentence of death - re-evaluation of the evidence - Penal Code (Cap
63) section 204.
The appellants had been charged with murder under sections 203 and 204 of the Penal Code (Cap 63). The presiding judge
had after full trail and submissions from both parties, summed-up the case for the three assessors who had aided him in the
trial. Each assessor returned a verdict of guilty against each appellant. The Judge however passed on before he could deliver
the judgment. Another judge then took over the trial and in his judgment, found each appellant guilty of murder and sentenced
each one of them to death. The appellants were convicted on identifcation evidence of Rose Atieno, the wife of the deceased.
She had claimed to have been in the house with the deceased when a large group of people descended into the compound and
broke down the window and then the door. A total of seven people came into the room. As a tin lamp was on, she was able
to see those who came into the room and she knew all of them by name. The attackers who were armed with pangas, spears
and stones started beating the deceased and stabbed him twice with the spear on the right side of the neck and on the left side
65
and later dragged him outside. The deceased wife was taken to the house of the 1
st
appellant where she managed to escape
and fee and ran back to her home. In her testimony, she stated that out of the seven who came in only the frst appellant had
been in court.
The appellants appealed against the decision of the High Court where it was contended that they had not been informed of
their right to recall the witnesses once the succeeding judge took over trial.
In the appeal, the Senior Principal State Counsel conceded the appeals of the 2
nd
and 3
rd
appellants as Rose, the key witness,
never mentioned them. He also considered that the other witnesses, PW2 and PW4 who gave their names in court were not
present in the house where the deceased was killed.
Held:
1. The succeeding Judge was under a duty to inform the appellants that under section 200(3) of the Criminal Procedure
Code (Cap 75) they were entitled to have any or all of the witnesses who had previously testifed before the deceased judge
re-summoned and reheard. However, as the appellants were represented by counsel, who both knew the provisions of section
200, particularly section 200(3), of the aforesaid statute, they should have raised the issue of the witnesses. They instead had
instead prayed for the court to have the proceedings typed and to proceed with typing of the judgment.
2. In terms of section 200(4) of the aforesaid statute, failure of the Judge to specifcally record that he had informed the
appellants of their rights under section 200(3) did not materially prejudice the case of the appellants.
3. PW1 (Rose Atieno) was a single witness who recognized the 1
st
appellant under diffcult circumstances. However, there
was corroboration of her evidence; the injuries found on the deceased were entirely consistent with the evidence. The deceased
body was also found where she claimed it had been placed.
4. On consideration of the recorded evidence, the 1
st
appellant had been convicted on sound evidence which proved the
prosecutions case beyond reasonable doubt.
Appeal of the 1
st
appellant dismissed, appeals of the 2
nd
and 3
rd
appellants allowed.
____________________________________
The Overiding Objective in Civil Litigation
Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 3 Others
Omolo, OKubasu & Aganyanya (JJ.A)
January 15, 2010
Civil Practice and Procedure appeal - application to strike out record of appeal on grounds of omission of primary documents
primary documents including notes of two the trial judges of the hearing omitted from the record - whether appeal incurably
defective - Court of Appeal Rules 85 (1), 85 (2A)
Civil Practice and Procedure - overriding objective in civil litigation - introduction of sections 3A and 3B to the Appellate
Jurisdiction Act - aim of the amendment to facilitate just, expeditious, proportionate and affordable resolution of an appeal
- interpretation of the overriding objective by the court - effect of the amendments on the established principles or precedent
in the exercise of the discretion of the court - whether striking out record of appeal would facilitate the just, expeditious,
proportionate and affordable resolution of the appeal - sections 3A and 3B of the Appellate jurisdiction Act
The applicants sought to strike out the appeal fled by the 1
st
respondent on the ground that primary documents including the
notes of two trial judges had been omitted from the record of appeal. The applicants argued that the omission made the appeal
incurably defective. In considering the merit of the application, the appellate court made reference to an amendment to the
Appellate Jurisdiction Act that introduced section 3A and 3B. The said sections provide that the overriding objective in civil
litigation aims at facilitating just, expeditious, proportionate and affordable resolution of an appeal. Prior to this amendment
the appellate court automatically struck out a record of appeal where the applicant failed to fle such primary documents.
With the introduction of this amendment the court examined whether the striking out of the appeal would be in conformity
with the overriding objectives set out in the legislation against the established principles in the exercise of the discretion of
the court.
Held:
1. In the interpretation of sections 3A and 3B the court was under a duty to ensure that the application or interpretation given
to any rule would facilitate the just, expeditious, proportionate and affordable resolution of an appeal.
2. The common experience of the court has been that whenever an appeal is struck out the losing party invariably invokes
the jurisdiction of the court under Rule 4 of the Court of Appeal Rules seeking the court to enlarge time within which to fle
a fresh notice of appeal and a fresh record of appeal. That invariably increases the cost of litigation. In addition parties would
have to start all over again and the time within which an appeal would take to be eventually determined on merit would be
unnecessarily lengthened. These are the situations which Parliament must have intended to remedy by incorporating the
overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act.
3. In the prevailing circumstances of the instant case striking out the appeal would not facilitate the just, expeditions,
proportionate and affordable resolution of the appeal.
4. The 1
st
respondent was ordered under rule 89 (1) of the Court of Appeal Rules to fle serve upon the applicants a
supplementary record of appeal containing the notes of the two Judges left out in the record of appeal within twenty one
days.
Application dismissed. 1
st
respondent ordered to pay costs to the applicants.
____________________________________
Theft of Clients money by Advocate
Kamau John Kinyanjui v Republic
Omolo, OKubasu & Onyango Otieno (JJ.A)
January 15, 2010
Criminal law - theft by agent the appellant a practising advocate convicted of stealing clients money prosecution alleging
that appellant under unclear circumstances fled various cases in the High Court seeking compensation for the deaths of some
the prison offcers who died in an accident - prosecution alleging that the appellant illegally transferred money from clients
account to unknown account legality of such transfer of clients money .
Criminal law appeal second appeal - complainant - meaning of complainant - appellant alleging that there was no capacity
to institute a criminal suit against him because no complaint was made to the police and the witnesses called had not acquired
letters of administration - complaint received by the police from the Attorney General - distinction between criminal litigation
and civil litigation in the administration of estate - purpose of instituting criminal suits in the name Republic.
The appellant, Kamau John Kinyanjui was charged and convicted by the trial court for eighteen counts of theft by agent contrary
to section 283 of the Penal Code and sentenced to pay a fne of Kshs. 50,000 on each count. During trial the prosecution
submitted that the appellant was an advocate of the High Court of Kenya at the time the events which formed the basis of
the charges against him arose.
It was alleged that after a motor vehicle accident involving prison offcers in December 1994, the appellant under unclear
circumstances came to represent the interests of those who had died in the accident. He fled various cases in the High
Court against the Attorney- General claiming compensation for the deaths of some of the prison offcers who had died in the
accident. Following negotiations for an out of court settlement, two cheques for Kshs.52, 170,300/- and Kshs.23, 439,300/-,
were issued by the relevant ministries in the appellants name. The frst cheque was paid and proceeds were deposited in the
clients account maintained by the appellant. The second cheque was however not paid because of the questions raised by the
Attorney Generals offce. It was alleged that attempts by the police to freeze the account into which the proceeds of the frst
cheque had been deposited were outsmarted by appellant by transferring that money to other accounts only known to him.
After trial the magistrates court found that the appellant had stolen the money meant for his clients since he had transferred
it from the clients account to unknown account which he refused to reveal.
The superior court found no merit in the appellants appeal. The appellants main ground of appeal to the Court of Appeal was
that the persons treated as complainants by the prosecution did not possess the legal status to be designated as complainants
since they had not obtained letters of administrations to the respective estates of the deceased offcers on whose behalf they
purported to speak. The appellant contended that section 18 of the Police Act was violated because no complainant went to
any police station to make a complaint yet the appellant was charged. The appellant also contended that he was not obliged
to account for the money to anyone except to his clients.
Held:
1. The person who reports an alleged crime to the police, the Attorney-General or any other person or authority does not,
by merely reporting the alleged crime, acquire any rights with regard to the assets or liabilities of the estate.
2. In cases being conducted by the Attorney-General on behalf of the Republic, the complainant is the Republic itself and
not the victim of the crime. Except in those rare cases where the court has allowed a private prosecution, the complainant
envisaged in the various provisions of the Criminal Procedure Code is at all times the Republic.
67
3. The appellant was dispossessed of the contention that the various witnesses who testifed on behalf of the estate
administrators of the deceased prison offcers had no locus standi in the instant case because they had no letters of administration
to constitute them into complainants. They were not complainants; the complainant was the Republic of Kenya and the Republic
did not need letters of administration to institute the prosecution of the appellant.
4. Section 26 (4) of the Constitution provides that the Attorney General can require the Commissioner of Police to investigate
any matter which, in the Attorney-Generals opinion, relates to any offence or alleged offence or a suspected offence.
5. There was no law which empowered an advocate to remove money which does not belong to him from his clients account
and hide such money in an account known only to the lawyer. That, with respect to the appellant, was stealing the money and
as the money was received for and on behalf of the client, the theft was described as theft by an agent.
Appeal dismissed.
____________________________________
Tax Law
Pili Management Consultants Ltd v Commissioner Of Income Tax Kenya Revenue Authority
Omolo, Tunoi & Aganyanya JJ.A
January 21, 2010
Income Tax -appeal appeal from judgment and order of the High Court
agency notice issuance of agency notice to appellants bank Act for
alleged tax due from the appellant time within which the agent should
remit money demanded in the notice to the Commissioner of Income Tax
section 96 Income Tax Act
Income Tax items upon which income tax is payable the scheme and
system of dealing with tax issues under the Income Tax Act respondent
issuing an agency notice against the appellant - appellant claiming there
was no tax due from it since it had fled nil returns for the relevant year
respondent alleging to have knowledge about a large sum of money deposited into the appellants account during the relevant
year - taxable income appellant offering no explanation why the money was not liable to tax whether the appellants right
to appeal and assessment of tax was violated - whether the Income Tax Commissioner acted correctly in issuing the agency
notice sections 52B, 84, 85, 86,87,88, 89, 90, 91, 96 of the Income Tax Act.
Judicial review prohibition appellant seeking an order to prohibit the respondent from seizing monies in their bank
account premise of judicial review.
On 8
th
June 2006, the Commissioner of Income Tax Kenya Revenue Authority, the respondent, issued an agency notice to
CitiBank N.A, an agent of Pili Management Limited, the appellant, requiring the bank to immediately pay Kshs. 50, 000,000
to the respondent. The notice issued under the provisions of section 96 of the Income Tax Act, Cap 470, Laws of Kenya,
stated that this sum was for tax due to the respondent for monies held by the agent bank in the previous twelve months on
behalf of the appellant.
The appellant moved to the High Court seeking for judicial review orders of certiorari and prohibition to quash the agency
notice and to prohibit the respondent from seizing the appellants money in the bank. It emerged in court that in 2004 the
appellant had declared a nil return on the basis that it had not traded that year. In 2006, the respondent received information
that the appellant had received some Euros 422,276.47 thereby concluding that the appellant must have been trading in 2004
and had made a false return. After full hearing the High Court dismissed the appellants application.
In its appeal to the Court of Appeal, the appellant submitted that it did not trade in 2004; accordingly the respondent could
not have levied any tax on the appellant for that year. The appellant contended the respondent had no jurisdiction to issue the
agency notice at the stage at which it was issued. Instead, the appellant submitted that the respondent should have followed
the process provided for under the law, namely assessing the tax due, if any, and during the assessment given the appellant a
hearing; after that making a demand for payment of the tax so assessed and allowing the appellant to invoke the provisions
of the Income Tax Act regarding objections to assessment and even the right of appeal.
The headquarters of the Kenya Revenue
Authority in Nairobi.
Held:
1. The agency notice was not illegal on the basis that it demanded immediate payment. There was no evidence to show that the
respondent sought to enforce the notice before the thirty days were over. In any case, if there was to be any enforcement by the
respondent with regard to the thirty days, the enforcement would be against the agent bank and not against the appellant.
2. Section 3 of the Income Tax Act sets out the items upon which income tax is payable. The section provides that tax is
payable on the income of a person, natural or artifcial, for a particular year. The tax is payable by persons who are resident
or non-resident but the income must accrue in or be derived from Kenya.
3. Sections 53B (a) and (b) of the Income Tax Act provides for the procedure for conducting the assessment of tax. Each of
the persons named under the said provisions is required to make a return of his income and to assess how much tax is payable
by him from all the sources of his income.
4. It may well have been that the appellant did not trade in the year 2004 and the money in its bank account did not come
from trading. It may have been that the money did not accrue in and was not derived from Kenya but the money was in the
appellants account in Kenya. Instead of declaring a nil return the appellant should have declared the presence of that money
and thereafter explained to the respondent why tax was not payable on the money.
5. In the event that the appellant had declared the money in the bank account in the return of income for the year 2004 and
given reasons why that money was not liable to tax, and if the respondent had then rejected this position, the appellant would
have been perfectly entitled to invoke the provisions of the Income Tax Act which deal with objections and appeals which
the appellant claimed were violated.
6. In the circumstances of the instant case the respondent was entitled to proceed in the manner he did. Had the respondent
not proceeded as such the appellant might well have spirited the money out of the bank and if tax was payable on the money,
the recovery of such tax might well have been rendered impossible.
7. The appellant could not complain that the respondent ought not to have investigated the matter. It was as a result of such
investigations that the presence of the money in the bank became known.
Appeal dismissed.
____________________________________
Time for Filing Appeal: Challenging Registrars Power to Reject a Document
William Maina Kamanda v Margaret Wanjiru Kariuki & 2 Others
Githinji, Visram & Nyamu JJ.A
February 2, 2010
Elections appeal application to strike out record of appeal appealing from the ruling of the High Court - scrutiny and
recount of votes appeal against the order for scrutiny and recount by the second applicant frst applicant seeking to strike
out the appeal on the ground that it was fled out of time by one day contrary to the National Assembly and Presidential
Elections Act second applicant seeking for extension of time to fle an appeal - whether court can extend the statutory
limitation period provided under section 23 (4) of the National Assembly and Presidential Elections Act
Appeals lodging a civil appeal requirements to be fulflled by the appellant when lodging a civil appeal rules requiring
appeal documents to be fled in quadruplicate - appellant fling sets of record of appeal and memorandum of appeal on separate
days one set of record of appeal and memorandum of appeal fled on the last day within the prescribed period for fling
appeal and the other one day outside the set period power for Registrar of superior courts to reject documents remedy
available where the registrar rejects documents - Rules 9 (3), 14 (4) Court of Appeal Rules
The frst and second applicants, William Maina Kamanda and Margaret Wanjiru Kariuki respectively, were among the several
candidates who vied for the Starehe Parliamentary seat in the Presidential and Parliamentary General Election held on 27th
December, 2007. After the second applicant was declared the winner on 30
th
December 2007, the frst applicant fled an
election petition on the ground of electoral malpractices seeking, among other reliefs, an order for scrutiny and recount of all
the votes recorded as having been cast.
Following an order by the Election Court allowing an application of scrutiny and recount of votes by the frst applicant, the
second applicant fled an appeal against the order for scrutiny and re-count of the votes which appeal was endorsed by the
registry as having been lodged on 23rd October, 2008 a day later than the prescribed period under the National Assembly
and Presidential elections Act.
The frst applicant sought an order from the Court Appeal to strike out the second applicants appeal on the ground that it
was not fled within thirty days from the date of the decision appealed from in contravention of Section 23 (4) of the National
Assembly and Presidential Elections Act.
69
Soon thereafter the second applicant sought the court to extend time for fling the appeal by a period of one day. Counsel
for second applicant submitted two sets of the record of appeal were presented to the registrar on 22
nd
October 2008 and the
remaining two sets were presented on the 23
rd
October 2008, whereupon the Registrar endorsed the record of appeal as having
been lodged on 23
rd
October, 2008 one day outside the prescribed period. It was the second applicants argument that since
the Registrar wrongly refused to accept the documents presented for fling on the 22nd October, 2008, the appeal which was
endorsed as having been instituted on the following day should be deemed to have been lodged on 22nd October, 2008.
The two applications were heard together by the Court of Appeal.
Held:
1. There was no provision in law giving jurisdiction to either the election court or the Court of Appeal to extend the thirty
days statutory limitation period provided under section 23 (4) of the National Assembly and Presidential Elections Act.
2. It was explicit from Rule 81 (1) of the Court of Appeal Rules that to institute a civil appeal the appellant is only required
to lodge at the Court of Appeal registry or sub registry a memorandum of appeal in quadruplicate; a record of appeal in
quadruplicate; and to pay the prescribed fees and security for costs. The rules enjoin the Registrar to endorse both the
memorandum of appeal and the record of appeal immediately they are lodged and the required fees and security for costs
paid showing the date and time when they were lodged.
3. The registrars decision whether or not to accept documents lodged at the registry was a ministerial decision made on
behalf of the Court. Since the rules gave the registrar discretion to decide whether or not any document presented for fling
should be accepted, a judge before whom the decision of the Registrar may be referred pursuant to Rule 14 (4) of the Court of
Appeal Rules should not interfere with the decision unless it is proved by concrete evidence that the discretion was wrongly
exercised.
4. There was a rebuttable presumption in the courts view, that where as in the instant case the registrar has endorsed the record
of appeal and memorandum as having been lodged on a specifed date and proceeded to register the appeal, given it a serial
number and has issued fees receipts bearing that date, there that the appeal was instituted at the date and time so endorsed.
5. Rule 14 (4) of the Court of Appeal Rules provides for a remedy where the Registrar has refused to accept any document
by an application either informally at the time the decision is given or in writing within seven days thereafter. The court
was of the view that since the decision of the Registrar was administrative rather than judicial; it did not call for a judicial
determination by the full court as it had been called to do in the instant case.
6. The second applicant should have referred the decision of the Registrar to a Judge as envisaged by Rule 14 (4) of the
Court of Appeal Rules which she failed to do. However, even if the application was treated as an application under rule 14
(4) it would still be incompetent as it was fled outside the stipulated seven days without leave.
First applicants application for striking out record of appeal allowed. Second applicants application seeking extension of
time dismissed with costs.
____________________________________
Compromise/Contents in Criminal Cases
Joseph Munyiri Munene v Attorney General & another
Githinji, Waki & Visram JJ.A
February 12, 2010
Appeal - appeal against an interlocutory ruling of the High Court appellant seeking
the superior court to stay further hearing of criminal case pending hearing of petition
appellant having feld petition to quash the indictment in the criminal case on grounds that
his constitutional rights to a fair and speedy trial had been denied - High Court declining
to grant interim conservatory orders of stay of criminal proceedings
Appeal compromise agreement by advocates enforcement of compromise agreements
by the court - appellant arguing that superior court ought to have accepted a compromise
agreement entered into by parties discretion of the court to accept the consent entered into
by parties - whether parties can enter into compromise agreements in relation to criminal
cases nature and scope of criminal cases.
The appellant, John Munyiri Munene and thirteen others were jointly charged before the
Chief Magistrates court with one count of conspiracy to defraud contrary to section 317
of the Penal Code. He was also charges along with six others of a second count of breach
of trust against the public contrary to section 127 of the Penal Code.
E. M. Githinji
On September 15 2009, the appellant prayed to the High Court for conservatory orders pursuant to the Constitution of Kenya
(Supervisory Jurisdiction & Protection of Fundamental Rights & Freedoms of the Individual) High Court Practice & Procedure
Rules 2006, to stay any further hearing of a criminal case before the Chief Magistrates court involving him and others. He
also sought to be excused from attending hearing of the criminal case, pending the determination of a petition fled by the
appellant in the superior court.
The High Court declined to grant the interim orders sought. The court stated that since the criminal case involved a public
company, Uchumi Supermarkets Ltd, it was in the public interest for the case to be heard fully so that the truth may be known
about the allegations made against the directors of the company and to instil confdence in the companys shareholders. The
court directed that the criminal case against the appellant be heard expeditiously thus provoking the instant appeal.
The appellants central argument on appeal was that the High Court had erred in ignoring the fact that both parties to the
petition had consented to the grant of interim orders. The considered whether it was obliged to automatically accept and enter
a consent agreement entered into by parties.
Held:
1. Whether to accept the consent entered into by parties as an order of the court was a matter of discretion given to the
court.
2. While advocates have an implied authority to compromise in all matters connected with action the court was not prevented
by agreement of counsel from setting aside or refusing to enforce a compromise, that it was a matter for the discretion of the
court
3. The treatment of consent agreements in civil cases was different from that in criminal cases. A criminal case, once before
the court, ceases to belong to any particular party. It belongs to the people, and the court, as the custodian of the people, must
act in the best interest of the people. If public policy demands that the court ignore the consent entered into between the parties,
then the court should have the authority to do so.
4. The High Court judge took into consideration that it was in the public interest that the criminal case be dealt with
expeditiously, and he so ordered. It could not be said that such an order was irregular because it had not been sought.
Appeal dismissed.
____________________________________
Insurance Law: Doctrine of Utmost Good Faith
Co-operative Insurance Company Ltd v David Wachira Wambugu
Court of appeal at Nyeri
Githinji, Waki & Visram JJ.A
February 12, 2010
Insurance law contract of insurance contracts of insurance to be based on utmost good faith - non disclosure of material
facts appellant claiming that the respondent had failed to disclose an existing medical condition prior to underwriting the
risk covered by the insurance policy subsequently emerging that the respondent suffered from a medical condition facts of
which were only known to him - whether appellant was entitled to repudiate insurance policy on account of non disclosure
of material facts
The appellant, Co-operative Insurance Limited issued a Personal Accident Policy to David Wachira Wambugu, the respondent
and agreed to make certain payments in the event of death, bodily injury or disability of the respondent arising from any
accident stipulated in the policy. The maximum amount payable for death was agreed at Kshs.5 million, for permanent total
disability Kshs.5 million, and for temporary total disability Kshs.500,000/=.
By a plaint dated fled in the High Court the respondent claimed compensation from the appellant pursuant to the said
contract of insurance. The plaint stated that the respondent he lost one upper tooth and the entire set of his lower teeth after
an attack by armed robbers. After full hearing the court found for the respondent The respondent was awarded him the sum
of Kshs.5,411,429/=, thus precipitating this instant appeal.
On appeal counsel for the appellant focused submitted that the injuries sustained by the respondent were of a temporary nature
and the maximum compensation payable under the policy was Kshs. 500,000/=. He further submitted that the respondent was
guilty of non-disclosure of material facts. It was argued that the respondent had failed to disclose his true state of health, that
he was suffering from diabetes and periodontitis when he applied for insurance. If he had done so, the appellant may not have
entered into the insurance contract, and that the appellant was therefore entitled to repudiate the policy.
71
Counsel for the respondent argued that the respondent had correctly answered in negative the question in the proposal form
which enquired whether he had suffered from a disease called Diabetes Paralysis. He argued that because there was no
such disease, and the respondents negative answer was correct.
Held:
1. According to the medical reports by two doctors it was not in dispute that the respondent suffered from diabetes, a
condition that he had since 1996, prior to applying for and being issued with the insurance policy. The respondent had also
continued receiving treatment for periodontitis since 1997, a condition which had been complicated due to his underlying
medical condition diabetes.
2. Contracts of insurance are contracts of the utmost good faith. This gives rise to a legal obligation upon the insured, prior
to the contract being made, to disclose to the insurer all material facts and circumstances known to the insured which affect
the risk being run.
3. It was incumbent upon the respondent to make full disclosure to the appellant that he had suffered from diabetes. It did
not matter that he thought that the question related to a disease called diabetes paralysis, a disease which, by his own
admission, was non-existent. If he had assumed, as was logical, that there ought to have been a coma between Diabetes
and Paralysis perhaps the instant case would never have been.
4. Even if there was confusion in the respondents mind about the existence of diabetes paralysis, he ought to have
responded to the penultimate words in the question, that asked whether he suffered from any recurring disease. His answer to
the whole question was in the negative when in fact he suffered from both diabetes and periodontitis. This was a special
fact only known to the respondent, and it was his obligation to disclose the same, in order to enable the appellant assess its
risk, and whether, indeed, it wanted to underwrite the same, and if so, at what cost.
5. By reason of the concealment of a material fact, the repsondent induced the appellant to underwrite the risk, and issue
the policy. The appellant was therefore clearly entitled to avoid the policy.
6. Having come to that conclusion, it was no longer necessary for the court to determine the actual amount payable to the
respondent.
Appeal allowed; judgement and decree of the superior court set aside.
72
AT THE HAGUE
The International Criminal Court Trial Competition:
More than a Moot Court
The University of Nairobi Team with Judge Kimberley
Prost of the ICTY (2nd left) Mr. Raymakers from the Law
Firm Buren van Guelzen (far right), Prof. Van Sliedregt
President of the International Criminal Law Network
(back right) and team coach Mr. Jackson Bett (back right)
Your Honors, the Accused is a President. A President! He
embodies an entire country. They arrested an entire state
when they brought him before this Court. The speaker
passionately articulating these statements is dressed in a black
robe, and white bib, fanked on either side by similarly clad
individuals in a forum resembling a somber international
tribunal. An onlooker would possibly not be blamed for
assuming he was witnessing proceedings before the hallowed
International Criminal Court (ICC).
The University of Nairobi team which included NCLR
student intern, Mr. Daniel Mwihia, was named Second Best
Defence team. Further, two of the team members received
Best Oralist and Second Best Oralist recognition for the teams
presentation as Defence Council
But perhaps the ring of the Bench Clerks bell indicating
the speakers exhaustion of his designated twenty minutes
might have let on the fact that this was not the ICC. Rather,
it was the ICC Trial Competition, organised annually by the
International Criminal Law Network. While the bench was
made up of ICC judges, International Criminal Tribunal for
the former Yugoslavia (ICTY) judges, renowned international
lawyers and other experts in the feld, the lawyers presenting
their case were university students drawn from 19 universities
from across the globe.
The Competition was held at The Hague, from 15th to 19th
February 2010 and was offcially opened by Judge Joyce
Aluoch of the ICC. In her opening speech, Judge Aluoch
reminded those present that the ICC was established to
replace a culture of impunity with one of accountability.
She stated that for too long, the most heinous and serious
of crimes have been committed on a large scale, trapping
humanity in cycles of violence and revenge. The ICCs main
mission is to help break these cycles. She emphasized the
ICCs main mission of giving a legal, and thus human answer
to blind violence and cited the teams participation in the
Competition as a sign that the mission can be achieved.
As a team of three fnal year law students, we represented
the University of Nairobi at the Competition. We had the
opportunity to present written and oral arguments playing
the roles of Prosecutor, Defence and Victims Counsel,
in the context of a fctional case study. The case study
touched on contemporary issues of International Criminal
Law, in particular incitement to genocide; immunity under
international criminal law for incumbent heads of state; the
compellability of witnesses before the ICC; and the scope
of victims participation in ICC proceedings.
While in The Hague, we were privileged to visit various
international legal institutions.We explored the Peace Palace,
which is home to the International Court of Justice and the
Permanent Court of Arbitration. We also watched an ongoing
hearing at the ICTY. At the ICC, we had an interactive session
with ICC offcials from various organs of the Court and
we took the opportunity to discuss with them the Kenyan
Situation.
The University of Nairobi team which included NCLR
student intern, Mr. Daniel Mwihia, was named Second Best
Defence team. Further, two of the team members received
Best Oralist and Second Best Oralist recognition for the
teams presentation as Defence Council. Our participation at
the Competition was an invaluable learning experience which
sharpened our knowledge of the substantive and procedural
law of the ICC. We are confdent that our experience will be
of relevance more so in light of the ICCs involvement in the
Kenyan post election violence situation.
The University of Nairobi Team team members Samuel
Njoroge, Samantha Mckenzie and Daniel Mwihia (left)
presenting their arguments as the Prosecution against the
Makerere University (right) at the ICC Trial Competition,
2010
Our participation would not have been possible were it not for
the academic, moral and fnancial support that we received.
To this end, we would like to thank Anjarwalla & Khanna
Advocates, Coulson Harney, Advocates, Iseme, Kamau &
Maema Advocates, ABC Bank, Kenya Law Reports and the
University of Nairobi for making our participation in the
Competition possible.
Compiled by:
Daniel Mwihia, Student Intern at NCLR
Samantha Mckenzie
Samuel Njoroge
FROM THE COURTS HIGH COURT
Reporting by Monica Achode, and Njeri Kamau
Jurisdiction of The High Court in a Constitution Review Dispute
Bishop Joseph Kimani and 2 Others v. The Attorney General and 2 Others
Petition No. 669 of 2009
January 5, 2010
Mohammed K Ibrahim, J.
High Court at Mombasa
Constitutional law-fundamental rights and freedoms-alleged contravention of fundamental rights and freedoms through the
Constitution review process-preliminary objection- jurisdiction of the court to determine the issues in dispute arising from
the process undertaken under the Constitution of Kenya Review Act, 2008-claim by the respondents that only an Interim
Independent Constitutional Dispute Resolution Court had Jurisdiction to deal with such a dispute under Section 60A of the
Constitution of Kenya -whether the preliminary objection was merited- Constitution of Kenya Review (Act, No. 10 of 2008)
Section 60A
Jurisdiction-jurisdiction of the High Court- unlimited original jurisdiction in virtually all matters as conferred by the
constitution-effect of Section 60A of the Constitution of Kenya-the said section establishing the Independent Constitutional
Dispute Resolution Court (IICDRC) with the jurisdiction to deal disputes arising from the Constitutional review process
-whether the section curtails the jurisdiction of the High Court within the Constitution itself- Constitution of Kenya Review
(Act, No. 10 of 2008) S.6
Jurisdiction jurisdiction of the Independent Constitutional Dispute Resolution Court- jurisdiction on disputes arising from
the Constitutional review process- whether the intention of the legislature was to totally oust the jurisdiction of the High Court
from dealing with the Constitutional review process- whether the High court had power to enforce the protective provisions
set out in Section 70 to 83 of the Constitution where the matters arose during and from the Constitutional review process in
absence of the Intended Interim Court Constitution of Kenya Review (Act No. 10 of 2008) section 60A
Statutes interpretation of statutes - Interpretation of the law-duty of the court in interpretation of the law- positivist vis-
a-vis realistic approach - responsibility of the court to maintain the rule of law-duty of the court to embrace a willingness
to oversee executive action and to refuse to countenance behavior that threatens either basic human rights or the rule of
law- High Court the ultimate custodian of the Constitution of Kenya -whether enactment of Section 60A of the Constitution
was intended to exclude the petitioners from accessing the courts in search of justice- the Constitution of Kenya Review (Act
No. 10 of 2008) Section 60A
The petitioners lodged a petition against the Attorney General, the Committee of Experts (CoE) and the Chair of the
parliamentary select committee challenging the constitutional review process. The petition was fled under section 84 (1) of
the Constitution where the petitioners laid out a number of alleged breaches of their constitutional rights, among them, failure
by parliament to defne what amounted to contentious issues in the constitutional review process. They alleged that the process
presided by the CoE according to the provisions of Constitutional Review Amendment (Act No. 10 of 2008) (herein referred
to as the Act) was unable to objectively identify contentious issues. The timelines set by the Act for publication, public debate
and submission of recommendations to the CoE was faulted given the high degree of illiteracy and poor infrastructure in
Kenya.
The petitioners asked that certain sections of the Constitution of Kenya Review Act, 2008 be declared null and void. The court
was asked to defne contentious issues in particular in reference to the sanctity of life, the right to found a family, separation
of state and religion and provisions touching on citizenship. They also sought suspension of sections 30-34 of the Act which
related to the national discussion of the draft Constitution, the Reference Group, approval of the draft by the parliamentary
select committee and the publication of the proposed Constitution.
The Attorney General consequently raised a preliminary objection arguing that the High Court had no jurisdiction to determine
the issues in dispute as they arose from the process undertaken under the Constitution of Kenya Review Act. It was averred
that according to section 60A of the Constitution only an Interim Independent Constitutional Dispute Resolution Court had
jurisdiction to deal with all and any matters arising from the Constitutional Review Process.
It was submitted that the said provisions expressly ousted the jurisdiction of High Court from hearing any disputes issues
arising from the Constitutional Review process. It was argued that while the High Court had previously held unlimited and
original jurisdiction in civil and criminal matters, the jurisdiction of the High Court was subject to Section 60 A. It was argued
that the intention of parliament was clear that all disputes arising from the Constitutional review process was to be dealt with
by the interim court which was a special court distinct from the High Court and hence the High Court would be usurping the
functions of the said court if it dealt with the said petition.
However, counsel for the petitioners urged the court to apply a realistic approach in interpreting sections 60 and 60A of the
Constitution. It was noted that the de facto position was that while section 60A existed it was yet to be put into operation
hence the interim court did not exist. Consequently refusal to hear the petitioners would amount to injustice.
Held:
1. The issues raised by the petitioners were of public interest carrying potential ramifcations that could affect the entire
nation.
2. The Interim Independent Constitutional Dispute Resolution Court (IICDRC) was established under section 60A of the
Constitution of Kenya Review Act, 2008 notwithstanding provisions of section 60 which provided for the establishment of
the High Court. The interim court was vested with the exclusive original jurisdiction to hear and determine all matters arising
from the Constitutional review process.
3. Section 60A read with Section 60 of the Constitution outrightly ousted the jurisdiction of the High Court to hear and
determine all and any matters arising from the constitutional review process. However, given the state of affairs, the High
Court could not decline to hear the petitioners application on grounds of lack of jurisdiction. There were existing exceptional
circumstances as the Interim Independent Constitutional Dispute Resolution Court was yet to be constituted.
4. The High Court was the ultimate custodian of the Constitution of Kenya and it had to ensure that the petitioners rights to
articulate their rights and ventilate their grievances with regard to the Constitutional review process were not lost due to the
legal vacuum. The vacuum had been created not by the Constitution, but by the procrastination by the appointing authorities.
The High Court hence had a responsibility to maintain the rule of law.
5. In the absence of the intended interim court under Section 60A, the High Courts unlimited and original jurisdiction
under Section 60 of the Constitution or its power to enforce the protective provisions set out in Section 70 to 83 (inclusive)
of the Constitution were still alive and unfettered. To exclude the Petitioners from access to justice due to the barrenness of
Section 60A would have been unjust.
6. Enactment of Section 60A was not intended to exclude the petitioners from accessing the courts in search of justice. To
the contrary it was their legitimate expectation that any new provisions in the Constitution would be to enhance their rights
and freedoms and not to take away what they already had in the existing Constitution.
7. The Constitutional Review process was supposed to lead to a total emancipation of Kenyans and confer on them their
total inalienable rights as human beings and not to take away that which was already protected by the existing Constitution
which had been found to be inadequate.
Preliminary objection dismissed.
____________________________________
Election Petition: Whether The IIEC Could Succeed The ECK in Court Proceedings
Ayub Juma Mwakesi v Mwakwere Chirau Ali & 2 others [2010] eKLR
Petition 1 of 2008
January 5, 2010
Mohammed K Ibrahim, J.
High Court at Mombasa
Election law- -election petition- parliamentary election- irregularities in elections petitioner
citing several irregularities in the conduct of elections - counting of votes whether the
irregularities could warrant nullifcation of the election
Election law-election petition-preliminary objection on a point of law- parties to an election
petition a respondent in relation to an election petition -suit against the returning offcer
struck out by the Court of Appeal-claim by the respondents that striking out nullifed the
whole suit- whether removal of the returning offcer affected the life of the suit-discretion of
the court to hear the suit-substantive law vis-a-vis the procedural law-whether the suit could
be sustained where one party acting as the agent of another has been struck off from the
pleadings- Section 22 of the National Assembly and Presidential Elections Act (Cap 7)and rule 22 of the National Assembly
(Elections Petition) Rules 1993
Election law-election petition-parties to an election petition - Electoral Commission of Kenya (ECK) named as a respondent
to the petition (ECK) dissolved and a new body, the Interim Independent Electoral Commission (IIEC) established in its
place (IIEC) purporting to take over and continue with the suit in the place of the (ECK) - preliminary objection on a point
of law objection on the ground that the third respondent, the (ECK) was not a proper party to the suit as there was no
application for the substitution of the defunct (ECK) with the (IIEC)- whether substitution of the (IIEC) was automatic-Section
41 A of the Constitution of Kenya Amendment Act
Constitutional law - interpretation of the Constitution - effect of Section 41A of Constitution of Kenya Amendment (Act No. 10 of
2008) Act- the section dissolving the Electoral Commission of Kenya (ECK) and establishing (IIEC) in its place-interpretation
75
of the law -whether it was clear that IIEC had fully succeeded the (ECK) in respect of the rights, duties, obligations and assets-
use of the words automatically and fully transferred - whether the said section created a vacuum on duties relating to
pending election petitions whether substitution affected pending proceedings-the Constitution of Kenya (Amendment) (Act
No. 10 of 2008) Section 41 and 41A; the Interpretation and General Provisions Act (Cap 2) Section 23 (1)
Estoppel-estoppel by conduct- conduct of the counsel for the Electoral Commission of Kenya (ECK) the counsel holding
themselves out as defending the suit throughout the proceedings- whether the (IIEC) was to be regarded as having taken over
all liability, including criminal liability, of the defunct Electoral Commission by virtue of the conduct of the counsel for the
(ECK)
Election law-Returning Offcer-Powers of a returning offcer-a returning offcer canceling results in a polling station- where
there was non-compliance with the written law-election not carried out with the principles laid down in the written law -whether
the non-compliance affected the result of the election -effect of the cancelled votes on the outcome of the election
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 - National Assembly and Presidential
Elections Act section 6, Constitution of Kenya Section 35
The petitioner, a registered voter in Matuga Constituency had moved the court seeking the nullifcation of the frst respondents
election as a Member of Parliament on several grounds including irregularities in the counting of votes, cancellation of votes
from certain polling stations, infation of votes counted, and denying agents the opportunity to inspect the seals in the ballot
boxes.
Section 41A of Constitution of Kenya (Amendment) Act in effect dissolved the Electoral Commission of Kenya (ECK)
and established in its place the (IIEC) which was to fully succeed the Interim Independent Electoral Commission (IIEC)in
respect of the rights, duties, obligations and assets
Before the main hearing of the suit, several interlocutory applications were made. The frst respondent and the second
respondent then, (the Returning Offcer) sought to have the petition against struck out for lack of personal service. The frst
respondents application was dismissed while the Returning Offcerss application was allowed by the Court of Appeal and
the petition against him struck out. The returning offcer therefore ceased to be a party to the proceedings.
The frst and third respondents consequently sought to have the petition struck out again on the grounds that the returning
offcer was a key and necessary party to the suit. Having ceased to be a party in the suit, they argued, the petition could not
stand and therefore had to be struck out. It was the frst respondents case that the petition could not proceed as the court would
be adjudicating against him on the basis of wrongs and mistakes committed by a party not before it.
The third respondent submitted that in the absence of the returning offcer in the suit, any further proceedings against it based
on omissions and irregularities committed by him would be prejudicial and against natural justice.
The court refused to admit these applications for hearing on the ground that the matter had already been set down for
hearing. The court relied on section 22 of the National Assembly and Presidential Elections Act (Cap 7) which provided
that the court could either summarily reject the petition or in the alternative list it for hearing. The frst and third respondents
appealed against this ruling. In dismissing their appeals, the appellate court held that the discretion exercised by the court
was judicial. In any case, the court observed, the returning offcer had closed his case and the entire petition was about to be
concluded long before his name had been struck out.
During the main hearing of the suit, the frst and third respondents revisited the issues raised in their appeals regarding the
striking out of the second respondent from the suit and sought the courts interpretation of the orders given by the Court of
Appeal. They argued that any evidence given with regard to the conduct of the returning offcer during the trial should not
have been considered and should have been expunged from the record since the returning offcer had ceased to be a party to
the proceedings.
Secondly it was argued by the frst and third respondent that the Electoral Commission of Kenya having been dissolved by
a Constitutional Amendment did not exist and was therefore not a proper party in the petition in the absence of amendments
to the pleadings to refect the same.
Section 41A of Constitution of Kenya (Amendment) Act in effect dissolved the Electoral Commission of Kenya (ECK) and
established in its place the (IIEC) which was to fully succeed the Interim Independent Electoral Commission (IIEC)in respect
of the rights, duties, obligations and assets.
Held:
1. The Court of Appeal had dismissed the appeals for striking out the petition on the basis that by the time the Returning
Offcers (the second respondent) name was being struck out of the petition, he had closed his case and the petition was about
to be concluded. The petitioner had adduced vital documents relating to his allegations and the returning offcer had called
over six witnesses by the time his name was struck out of the petition. It would have been a monstrous travesty of justice if
it expunged the evidence legitimately laid before the court.
2. In addressing the request to expunge the evidence against the returning offcer, the court could not shut its eye to the
evidence on the record but would look at the evidence broadly and investigate if the frst respondent was validly elected. In
such a case the court would not be hearing any case against the returning offcer but strictly looking at the electoral process
and whether there was compliance with the law and to what extent it affected the role of the third respondent, which was still
a party.
3. The law under Section 22 of the National Assembly and Presidential Elections Act (Cap 7) was quite categorical that
the court could either summarily reject the petition or in the alternative list it for hearing. The court hence exercised that
discretion and chose to hear the petition.
4. Section 41A of the Constitution of Kenya Amendment Act did not create a vacuum on duties relating to pending election
petitions. Section 41 read together with Section 41 A was clear that Interim Independent Electoral Commission (IIEC) had
fully succeeded the Electoral Commission of Kenya (ECK) in respect of the rights, duties, obligations, assets and liabilities
for the two year period that it would be in offce. Section 41 used the words automatically and fully transferred. When
parliament disbanded (ECK) and replaced it with the (IIEC), it was aware of the petitions pending in court. (IIEC) would
automatically assume all the rights, duties and obligations of (ECK). The court after the amendment of the Constitution had
given time to the parties to consider the next course of action in light of the amendment. The parties failed to take any steps
to substitute or amend the pleadings; it was therefore late in the day for the respondents to advance that argument.
Despite the absence of a formal order for the substitution of (ECK) by IIEC in the petition and joinder thereof, the (IIEC)
and its advocates held themselves out as having the capacity to automatically take over the ECKs case and position under the
provisions of Section 41A of the Constitution Amendment Act. The advocates for the third respondent were hence estopped
by their conduct from denying that they were representing (IIEC) since they had held themselves out as such throughout the
proceedings.
5. The evidence of petitioners witnesses was truthful, honest and consistent. The returning offcer unlawfully cancelled
the results at one polling station without any authority and without informing (ECK). Had those results been tallied, the frst
respondents closest opponent would have won by 142 votes.
6. The standard of proof in election petitions was slightly higher than the one adopted in civil cases but not as high as in
criminal cases and the burden of proof lay on the petitioner.
7. An election court was required to declare an election invalid if the irregularities in the conduct of the election had been
such that it could not be said that the election had been so conducted as to be substantially in accordance with the law as to
election or if the irregularities had affected the result.
8. The election of the frst respondent had not been carried out in a fair and transparent manner and was therefore null and
void.
Petition allowed.
____________________________________
Financial Markets: Disciplinary powers of The Capital Markets Authority
Shah Munge Partners and 4 Others v Capital Markets Authority
Civil Appeals Nos. 913 and 930 of 2003 (Consolidated)
High Court of Nairobi
Waweru, Kubo & Kasango JJ
May 14, 2009
Capital Markets Authority regulations of Capital Markets appeal against decision of Capital Markets Authority to impose
sanctions second appeal to deal with matters of law legal authority of the Capital Markets Authority in conducting an
inquiry and imposition of sanctions over licensed persons - disciplinary procedures of the Capital Markets Authority where the
Capital Markets Act requires a board of the Authority to only act through a quorum of six members appointed sub-committee
purported to hear the appellants, acted with only fve members whether it was a lawful quorum whether Authority had
legal authority or jurisdiction to delegate to a subcommittee to carry out investigations and act on its fndings - duty of the
Authority after gathering initial data on the transactions to inform the appellants of the general nature of the accusations
they would have to answer - disciplinary powers of the Capital Markets Authority to impose sanctions on licensed persons
and directors of licensed persons.
77
Statutes interpretation of statutes difference between the jurisdiction or legal authority of the Capital Markets Authority
under section 11 (3) (h) and sections 25 and 26 of the Capital Markets Act (Cap 485A) where there is a confict between
the Capital Markets Act and any other law whether the Capital Markets Act takes precedence - legislative intent of section
33(2)(b) and section 29(1)(b) of the Act - Capital Markets Act (Cap 485A) sections 6(2), 11 (3) (h), 14(1), 25, 26, 35.
The respondent, the Capital Markets Authority, took disciplinary action by way of sanctions, against the appellants pursuant
to the provisions of the Capital Markets Act (Cap 485A).
The appellants felt aggrieved by the decision of the respondent and appealed against it to the Capital Markets Tribunal under
section 35 of the Act. The tribunal upheld the decision of the respondent and enhanced the sanctions imposed against the
appellants. The appellants brought a second appeal to the High Court under section 25 of the Capital Markets Tribunal Act.
The issues before the High Court were whether the respondent had jurisdiction in disciplinary matters over licenced persons
under the Act, whether proper procedures in disciplining the appellants were followed by the respondent under the Act and
whether the respondent had disciplinary powers to impose sanctions on licenced persons and directors of licenced persons,
with particular reference to the sanctions imposed upon each appellant.
Held:
Per Waweru J
1. Under section 25 of the Capital Markets Act (Cap 485A), the Capital Markets Authority had powers to renew the license
provisionally to permit the licensed person to take such action as the Authority may deem necessary to come into compliance
with the Act, rules and regulations and also impose any conditions or restrictions it may deem necessary on the activities of
a licensed person when renewing the license. Therefore the respondent would certainly be within its mandate to exercise the
powers conferred by section 25 after an inquiry under section 11(3) (h) of the Act. It did not have to wait until the licensed
persons license was due for renewal in order to act under section 25.
If the Authority could remove errant directors from the management of a company that was a licensed stockbroker,
it ought also to be able to bar such directors from the management of any other licensee or listed company
2. The fact that no treasury bond was ultimately purchased by the 1
st
appellant, or that the money ended up in the 1
st
appellants
offce account in a bank that was going under, could not oust the disciplinary jurisdiction of the respondent. If that were so
then as the Tribunal so succinctly put it there would be no recourse against a stockbroker for any professional misconduct
prior to purchase or sale of an instrument, including misconduct that was the cause of the non-purchase or the failure to sell
the instrument such as misappropriation of clients funds. A stockbroker who without reasonable cause occasions his clients
loss by refusal and or neglect to purchase or sell an instrument would safely hide behind this argument. In short, a stockbroker
would be rewarded for successful misconduct. The Court of Appeal respectfully agreed that that would be an absurdity not
intended by Parliament.
3. A treasury bond as was well known was a long-term fnancial instrument traded on a securities exchange inter alia. That
brought it within the meaning of capital market instrument as defned in section 2 of the Act.
4. The fact that National Social Security Fund (NSSF) paid to the 1
st
appellant the money by cheque did not make the
transaction a bill of exchange, it was only the mode of payment that was by way of a bill of exchange. The money ended
up as a deposit in a bank that was going under because it turned out that there was not after all any appropriate treasury bond
available in the secondary market for purchase as NSSF had been made to believe by the 1
st
appellant and the appellants failed
to properly advise NSSF as to its investment.
5. The provision set out under section 33(1) (c) of the Capital Markets Act that empowered the respondent to remove any
offcer or employee of the licensed person who in the opinion of the respondent had caused or contributed to any contravention
of any provision of the Act, or any regulations made thereunder, or to any deterioration in the fnancial stability of the licensed
person, or had been guilty of conduct detrimental to the interests of the investors, applied to directors of a company that was
a licensed stockbroker. It could not be expected that the Tribunal could remove the management of such company but not
touch its policy makers, the directors. It must have been intended by the statute that the provision should apply to all persons
concerned in the affairs of a licensed person.
6. If the Authority could remove errant directors from the management of a company that was a licensed stockbroker, it
ought also to be able to bar such directors from the management of any other licensee or listed company. The respondent as
already seen, was enjoined under section 11(3) (w) of the Capital Markets Act to do all such other acts as may be incidental
or conducive to the attainment of the objectives of the respondent or the exercise of its powers under the Act.
7. It was clear that the proceedings of the tribunal on appeal were a re-hearing of the matter not a mere review of the
evidence taken or decision made by the respondent. The tribunal regulates its own procedures so it was not like a hearing in a
regular court of law. The tribunal was even empowered to take into consideration any evidence which it considered relevant,
notwithstanding that such evidence would not otherwise be admissible under the law of evidence.
Per Kubo J
1. The respondent had been vested by section 14 (1) of the Capital Markets Act with express powers to appoint any committee
and delegate to such committee any of its powers as it may deem appropriate. The Court of Appeal would be guided by the
specifc provisions of section 14 (1) of the Act on the issue of delegation before it.
2. The absence of rigid formalities in inquiries under the Capital Markets Act appeared to be on purpose. Had the Legislature
desired that inquiries under the Act be subjected to rigid formalities, there was nothing to stop the Legislature from providing
for such rigid formalities in the same way as had been done elsewhere in Kenyan law.
3. Sections 14(1) and 13(1) of the Capital Markets Act made it abundantly clear that the respondent had power to delegate
the responsibility for inquiring into and gathering information from all concerned on the questioned transaction to a committee
and for such committee to forward its fndings and recommendations thereon to the respondents Board for consideration and
action as the Board may deem appropriate.
4. The provision for quorum in section 6(2) of the Capital Markets Act relates to Board meetings. The respondent acted
through a Board of the respondent. The respondent consisted of 11 members who included the Chairman and the Chief
Executive under section 5(3) of the Act. There was no specifc quorum prescribed by the Act for committee or sub-committee
deliberations. Therefore the board of the respondent which under the Act coincided with the respondent itself had a free hand
in determining the size of any committee.
5. There was no provision in the Capital Markets Act that recommendations of a committee were binding on the Board. Such
recommendations were not binding on the Board and that the Board could accept or reject the fndings and recommendations
of a committee.
6. The respondent validly delegated the responsibility for physically inquiring into the questioned transaction, questioning
the appellant frms directors thereon and recording their responses to their questioned conduct, making fndings and
recommendations thereon to the respondents Board which considered the matter, accepted the sub-committees fndings and
recommendations which then became the respondents own and imposed the regulatory sanctions in question.
7. It was the duty of the respondents management, after gathering initial data on the questioned transaction to inform the
appellants of the general nature of the accusations they would have to answer.
8. The test of acting fairly in inquiries can be adequately met by providing the parties affected by such inquiries, with the
gist or general outline of the case which they have to answer for purposes of getting their answer if any and that the said test
was met in the case, subject matter of the two appeals before the Court of Appeal. Therefore the appellants complaint of not
having seen the subject documents did not constitute an adequate ground to vitiate the inquiry and the said complaint must
fail.
9. Under section 29(1) (b) of the Capital Market Act, it was the discretion of the respondent to accept or refuse to accept a
director of an applicant for a license. If a director was removed from directorship of a suspended licensee, whether or not to
approve such director for directorship of another licensee during suspension of the frst licensee lied with the respondent. It
cannot be a proper interpretation of section 33(2)(b) and section 29(1)(b) of the Act that, though a director be removed from
the directorship of one licensee, the respondent would be bound to accept such person as a director of another licensee. That
would be absurd and the law does not tolerate absurdities.
10. The enhancement by the Tribunal of the period of the appellants disqualifcation was a variation of the regulatory
sanctions imposed by the respondent on the appellants. The variation fell squarely within section 35A (16) (a) of the Capital
Markets Act and was within the Tribunals power upon any appeal which power did not require any cross-appeal for the
Tribunal to exercise the said power.
Per Kasango J
11. The rights of a director under the Companies Act, (Cap 486) were not affected in any way. Only his rights under the
Capital Markets Act were. The legislative intent of section 29(1) (b) of the Capital Markets Act obviously was to ensure that
only such persons as the respondent may approve, were allowed to be directors of a licensee so as not to defeat the objectives
of the Act as set out in the preamble.
12. A director was indeed an offcer of the company. In any event, under section 37 of the Capital Markets Act, the Act takes
precedence over any other law where there is a confict between the provisions of the Act and any other law. The violations
by the appellants that the Tribunal was concerned with were those under the Act, not under the Companies Act (Cap 486) or
the common law.
13. Removal of the directors was under section 33A (1) (c) as read with section 33A (2) (b) of the Capital Markets Act.
The removal was not under the Companies Act, or under the articles of association of the 1
st
appellant. Issues of negligence
under common law or the provisions of company law as such were thus not relevant or germane to the matter before the
Authority or Tribunal.
14. The Tribunal erred in respect to the 5
th
appellant. In effect it held him strictly liable contrary to the provisions of the
Act where strict liability was not provided for. His appeal as far as the sanctions imposed upon him were concerned ought
to be allowed.
The appeals of the 1
st
, 2
nd
, 3
rd
and 4
th
appellants dismissed in their entirety. The sanctions imposed upon them by the Tribunal,
confrmed. The appeal of the 5
th
appellant partly allowed and the sanctions imposed upon him lifted.
79
Service by Unlicensed Process Server
John Koyi Waluke v Moses Masika Wetangula & 2 Others
Election Petition No. 1 of 2008
High Court at Bungoma
F. N. Muchemi, J.
November 18, 2009
Civil practice and procedure-review-application for review of ruling of the High Court-discovery of new and important
evidence-whether there applicant met the requirements prescribed in the provisions of the rules-validity of application-Civil
Procedure Rules (cap 21 Sub Leg) order 44 rules 1, 2, 3, 4
Civil practice and procedure-service process-substituted service-where the process server effected substituted service with
due diligence without holding a valid license-whether the process server who lacked capacity to serve could be held to have
satisfed the requirement of due diligence-National Assembly and Presidential Elections Act (cap 7) section 20
Election law-election petition-service of election petition-striking out-application for striking out petition for want of service-
whether court could strike out a petition without any express provisions of the law-whether a petition could survive without
the frst respondent as a party to the same-validity of application-Civil Procedure Act (cap 21) sections 3, 3A and 80; National
Assembly and Presidential Elections Act (cap 7) section 20
This was an application by the frst respondent (applicant in this case) seeking for review of the ruling delivered on 27
th

May, 2008 in which the High Court ruled that the frst and third respondents were suffciently served with the petition dated
31
st
March 2008, and dismissed an application to strike out the said petition for non-service. The main ground supporting
the application for review was that the applicant (frst respondent) had discovered new and important evidence which was
not within his knowledge at the time that application was heard. The applicant had written a letter addressed to the Chief
Magistrate, Nairobi to request for confrmation whether the process server at the time had a valid process serving licence as
at 1
st
January 2008. Upon receipt of the reply to the letter by the applicant on 13
th
October 2009, and after the application
had been heard, it was established that the said process server did not hold a valid license at the time he effected service
upon the applicant through the alternative mode of service. Following this revelation the applicant invoked the provisions of
Order 44 rules 1-4 of the Civil Procedure Rules, which provide for review in such circumstances. The applicant contended
that the availability of the new evidence at the hearing of the application would have changed the outcome of the ruling. The
respondent opposed this application contending that it was incompetent and an abuse of the due process of the court, and
that court in its ruling, which is subject to this application, found the alternative mode of service valid. He further contended
that the licensing of the process server should not affect service in the petition and that the applicant had allegedly brought
the said application a bit late in the day.
The main issue before court was whether a process server who lacked capacity to serve would be held to have satisfed the
requirement of due diligence as required by law.
Held:
1. The alternative mode of service must stand on the ground of due diligence. The alternative service was based on the due
diligence of the unauthorized process server and therefore the efforts made for that purpose were useless and a nullity for
want of authority.
2. According to the correspondence from he Secretary to the Process Server Committee, there was no doubt that new and
important evidence, as required by Order 44 rule 1 of the Civil Procedure Rules, had been discovered, and therefore had the
evidence been presented before the court at the time the application was heard, the same would have infuenced the outcome
of the decision.
3. Under the provisions of Order 44, time should run from the date of discovery of the new evidence, and that the applicant
must show that he exercised due diligence in trying to obtain the evidence and that it was not available at the time the frst
application was heard. The frst letter dated 10
th
April, 2008 and the reminder dated 14
th
September, 2009 were suffcient for
purposes of exercise of due diligence by the applicant.
4. High Court has powers to strike out pleadings even where the law does not have any express provisions. The National
Assembly and Presidential Elections Act (Cap 7) does not provide the procedure for striking out an election petition. Therefore,
in the absence of an express power to strike out a pleading, the court can invoke its inherent powers prescribed under section
60 (1) of the Constitution.
5. Although the service on the second and third respondents was not challenged, if the court ruled that the petition proceeds,
any orders made were likely to affect the frst respondent without being heard, because he would no longer be a party to the
petition. Consequently, such a move would contravene the rules of natural justice that no person should be condemned unheard.
The fate of the petition was sealed by the act of the non-service or improper service of the frst respondent.
(Obiter: Per Muchemi, J.) To the advocates representing parties to petitions, it is important to ensure that only qualifed
process servers are engaged to serve court process. This will serve as a damage-control measure in matters affecting the
clients.
Application allowed, petition struck out for want of service, orders set aside.
____________________________________
Election Petition: Nationality of Petitioner/Dual Citizenship
Mahamud Muhumed Sirat v Ali Hassan Abdirahman & 2 Others [2010] eKLR
Election Petition 15 of 2008
L Kimaru, J.
High Court at Nairobi (Milimani Commercial Courts)
January 22, 2010
Constitutional Law-citizenship-domicile-ability to run for public offce as a foreign
citizen-claims of the petitioner having acquired Australian citizenship-issues of dual
citizenship-whether the respondent owed allegiance to the government of Australia-
previous judicial review proceedings having failed to resolve the issue of the petitioners
citizenship-procedure to be followed where a member of the National Assembly ceased to
be a citizen of Kenya-no objection having been lodged to the nomination of the petitioner
as a candidate of the Wajir South Constituency parliamentary seat -whether a person who
acquires Kenyan citizenship by birth loses that citizenship upon acquiring the citizenship
of a different country-Constitution of Kenya section 39(1)(a); section 97(1), (3) and (7)
Election Petition-dismissal-application to dismiss election petition-petitioner having Australian
citizenship-eligibility to present himself for nomination or election as a member of the Kenyan
parliament-petitioners constitutional capacity to institute or proceed with the election petition-
court jurisdiction to hear the facts of the petition-person who may challenge the election of a member of the National Assembly-
procedure-qualifcation of a person wishing to be elected as member of the national assembly-whether the petitioner had locus
standi to institute the election petition-Constitution of Kenya section 4A; National Assembly and Presidential Elections Act (Cap.
..?) sections 35(1), 43(1), 44(1); Civil Procedure Act (Cap. 21) Section 3A
This was an application seeking to have an election petition dismissed essentially on the grounds that the petitioner was not a
Kenyan citizen. The application was brought under the provisions of Sections 35(1), 43(1), 44(1) of the Constitution of Kenya,
Section 4A of the National Assembly and Presidential Elections Act and Section 3A of the Civil Procedure Act. It was the frst
respondents case that the petitioner had voluntarily acquired the citizenship of Australia and therefore owed allegiance to the
government of Australia. His contention was that the petitioner was prohibited by the Constitution from registering as a voter in
Kenya or offering himself for nomination and election as a member of parliament in Kenya or seeking any other elective post.
He further claimed that the petitioner, having renounced his Kenyan citizenship, and having acquired Australian nationality
lacked locus standi to fle and present an election petition. He was of the view that the court lacked the jurisdiction to hear
the election petition as the petitioner was not a Kenyan national. He therefore urged the court to dismiss the petition.
The application was opposed by the petitioner on the grounds that it was frivolous, vexatious, incompetent and an abuse of
the court process and was meant to frustrate him from prosecuting the present election petition.
Held:
1. If the court had reached a determination that the petitioner was not a Kenyan citizen, then, it would have had no option
but to dismiss the petition. Section 44 (1) of the Constitution granted the court jurisdiction to hear and determine any question
on whether a person had been validly elected as a member of the National Assembly. Section 44(2) provided that a challenge
to the election of a member of the National Assembly could be made by any person who was entitled to vote in the election
to which the petition relates, while section 35(1) provided that no person was to be qualifed to be elected a member of the
National Assembly, inter alia, if at the time of his nomination by virtue of his own act, he was under an acknowledgement of
allegiance, obedience or adherence to a foreign state.
2. Even assuming that the petitioner had indeed acquired Australian citizenship, there was nothing in the Constitution that
specifcally prohibited the petitioner from acquiring such citizenship while at the same time retaining his Kenyan citizenship
provided that Australian law allowed for its citizens to acquire and have dual nationality. There was only one exception; this
was where the petitioner specifcally renounced his citizenship of Kenya and acquired citizenship of another country that did
not allow dual citizenship.
81
3. The respondent failed to present any application before the court challenging the citizenship of the petitioner at the earliest
possible opportunity because he wanted to use the information regarding the alleged Australian citizenship of the petitioner
to secure the deportation of the petitioner without reference to this court. It is evident that the application had been presented
in abuse of the due process of this court. On the evidence adduced it had been established that the petitioner was a Kenyan
citizen.
____________________________________
Format of Applications of Judicial Review Remedies
Republic v Secretary, Public Service Commission & 2 others Ex-parte Peter Gitahi Kamaitha [2010] eKLR
Miscellaneous Civil Application 22 of 2009
January 25, 2010
M.S.A. Makhandia, J.
High Court at Nyeri
Judicial Review procedure-substantive application-Notice of Motion-intitulement of the application -application to be made
in the name of the Republic-failure by the applicant to make the application in the name of the Republic- applicant alleging
that the use of the wrong format in the title of the application did not prejudice the respondents-whether the application could
be amended-whether the Civil Procedure Rules provided for such amendments- whether the failure to name the Republic as
the applicant rendered the application incurably defective- Civil Procedure Rules Order 53
Judicial Review-nature of judicial review- judicial review proceedings a special jurisdiction that is neither criminal nor
civil- whether the Civil Procedure Act (Cap. 21) and the Civil Procedure Rules were applicable-whether issues of substantial
justice and prejudice were applicable in Judicial Review proceedings
Judicial Review pleadings -statutory statement- contents-statutory statement required to contain only the name and
description of the applicant, the relief sought and the grounds upon which the relief is sought-where the statement did not
contain the relief sought and the grounds thereof- whether the application was defective-supporting affdavit to the notice of
motion- supporting affdavit having been sworn before leave to commence judicial review proceedings was granted-whether
that rendered it incompetent -Civil Procedure Rules Order 53 Rule 1
Judicial Review-Jurisdiction-jurisdiction of the court to grant judicial review orders- source of the jurisdiction - applicant
citing all other enabling provisions of lawin support of his application - failure by the applicant to specifcally cite the
statute and sections relied on -whether that failure rendered the motion incompetent and fatally defective whether the court
had jurisdiction to entertain the application - Law Reform Act (Cap. 26) Section 8 (1) and (2)
Statute-interpretation of the statutes- interpretation of section 1A and 1B of the Civil Procedure Act- the court required to
take into consideration the overriding objective of the Act in interpreting the Civil Procedure Act or exercising any power
in the said Act- where judicial review proceedings were strictly governed by order 53 of the Civil Procedure Rules- whether
the overriding objectives were applicable to judicial review proceedings- Civil Procedure Act (Cap 21) section 1A and 1B
and Civil Procedure Rules Order 53
The applicant brought a Judicial Review application by way of Notice of Motion seeking orders against three respondents.
He sought an order of certiorari to quash the decision of the frst respondent ratifying the dismissal of the applicant
from his employment by the second respondent. He further sought for an order of mandamus against the second
respondent compelling him to reinstate the applicant in his employment as directed by the Permanent Secretary,
Ministry of Local Government or in the alternative an order of mandamus compelling the 2
nd
respondent to pay
the applicant all his salary arrears from the date of dismissal.
It was the applicants claim that he had been dismissed from employment contrary to the rules of natural justice as he
had not been given an opportunity to defend himself before the commission before the decision was arrived at. The applicant
acknowledged that the substantive application was intituled in his name rather than in the name of the Republic but however
averred that wrong procedure could not invalidate the proceedings if it did not go to jurisdiction and if no prejudice had
been caused to the applicant. Accordingly to the applicant, the alleged wrong format had not prejudiced the respondents. The
applicant further submitted that under Order 53 Rule 4(2) of the Civil Procedure Rules, there was a provision for amendment
of statement of facts and that he had notifed the parties his intention to do so. It was hence not a fatal defect.
The application was opposed on the grounds that the application was misconceived, frivolous, a blatant abuse of the court
process and that it was fatally and incurably defective. It was contended that the procedure adopted in fling the application
was wrong and did not comply with the mandatory provisions of the law and that the statement of facts and the supporting
affdavit to the notice of motion were fatally defective. The statement by the applicant contained the name and description
of the applicant and failed to contain the relief sought and the grounds thereof. The supporting affdavit was also shown as
having been sworn before leave to commence judicial review proceedings was granted and that rendered it defective.
Held:
1. The substantive Notice of Motion had been wrongly intituled as part of the intitulement suggested that the application
had been brought in the name of the applicant. At that stage, the substantive Notice of Motion unlike at the leave stage ought
to have been made in the name of the Republic. Judicial Review proceedings were totally different from any other ordinary
proceedings. It was only the Republic and not an individual who could seek orders of judicial review. The applicant having
brought the application in his name rather than the Republic rendered the application incurably defective and had to be struck
out.
2. The applicant had not sought from the court leave to amend the intitulement. The court could not therefore grant what it
had not been asked for. In any event, being a judicial review application, it was doubtful whether there were any provisions
in Order 53 of the Civil Procedure Rules that provided for such amendments. The only document amenable to amendment in
judicial review application was the statement of facts.
3. It was trite law that judicial review proceedings were a special jurisdiction that was neither criminal nor civil. Accordingly
the Civil Procedure Act and the Rules made thereunder were inapplicable and issues of substantial justice and or prejudice
were also irrelevant considerations.
4. The statutory statement under Order 53 Rule 1 of the Civil Procedure Rules was required to contain only the name and
description of the applicant, the relief sought and the grounds upon which the relief was sought. The facts were required to
be in the verifying affdavit and not the statement. That being the case again, the applicant had failed to comply with the
mandatory provisions of the law and as such the statement of fact was liable to be struck out.
5. The applicants submission on the intention to amend the statement of facts under order 53 Rule 4(2) was irrelevant as
he never made good his intention.
6. The fact that the supporting affdavit was shown as having been sworn before leave to commence judicial review proceedings
was granted rendered it incompetent.
7. The applicants failure to cite section 8 (1) and (2) of the Law Reform Act which donated to the High Court jurisdiction
to grant judicial review orders rendered the motion incompetent and fatally defective as it indicated that the court had no
jurisdiction to entertain the application. It was imperative for the said section of the law be cited in an application for judicial
review.
8. The applicant could not hide behind the rubric all other enabling provisions of law This rubric could not possibly
refer to judicial review proceedings or sections 8 and 9 of the Law Reform Act. It would only come to the aid of the applicant
if he was not sure under what law he was moving the court.
9.In determing the dispute overly on technical grounds, the court took note of the amendments to the provisions of section
1A and 1B of the Civil Procedure Act. The courts in interpreting the Civil Procedure Act or exercising any power was required
to take into consideration the overriding objective as defned in the said Act. However, these were judicial review proceedings
strictly governed by order 53 of the Civil Procedure Rules. Save for this particular order, other provisions of the Civil Procedure
Act and the rules made thereunder were inapplicable. Judicial review was a special jurisdiction that was neither civil nor
criminal. That being the case the overriding objectives were inapplicable in the circumstances of the case.
Application struck out.
____________________________________
Balancing Accused Persons Entitlement to bail with National Security Considerations
Republic v Muneer Harron Ismail & 4 others [2010] eKLR
Criminal Revision 51 of 2009
January 28, 2010
M. Warsame, J.
Criminal Practice and Procedure-bail-application for bail pending trial-revision-application to reinstate cash bail granted
to the applicants by the trial court- applicants accused of being in possession of Government stores and ammunition-bail
granted by trial court revised by the High Court on the ground that the applicants were likely to compromise national security
if released on bail whether bail could be reinstated- Penal Code (Cap 63) section 324(3)
Criminal Practice and procedure-bail-bail pending trial- rationale of bail-bail meant to secure the attendance of an accused
person to answer the charges brought against him - factors to be consider before granting bail-whether the release of the
individual will endanger public security, safety and the overall interest of the wider public - whether by merely claiming
that the respondents were security threats because they were allegedly found in possession of the weapons mentioned in the
charge sheet was a factor that could lead to the refusal of bail- Constitution of Kenya section 60(1) and Criminal Procedure
Act (Cap. 75) section 123(3), 125(1) and (2).
83
National security-meaning of national security-assessment of national security-duty of the prosecution to state the extent of
the past, present and future threat posed by respondents to national security to justify denial of bail-need for cogent, strong
and specifc evidence showing the existence of potential damage to national security posed by the respondents- mere suspicion
that an individual is likely to compromise national security not a basis to indict - evidence required to support existence of
the said suspicion- whether the issue of national security could be used as a blanket to violate the rights and the liberty of
an accused person
Criminal Practice and Procedure order - court orders-extraction of court orders-interpretation of the orders - orders
obtained ex-parte in contravention of the principles of natural justice- orders extracted in a manner which contravened
the ruling- substitution of the word revise with reverse whether there was an attempt to abuse the judicial process in
extraction of the order
The frst, second, fourth and ffth applicants had been charged with being in possession of Government stores contrary
to section 324(3) of the Penal Code (Cap 63) while the frst, second, and third applicants had been charged with being in
possession of ammunitions contrary to section 4(2) (a) of the Firearms Act (Cap 114) Laws of Kenya. After they were taken
to court, the prosecution made an application for them not to be released on bail on the grounds that they were dangerous
and believed to be operating within criminal gangs. However, on December 22, 2009 the matter appeared before the Chief
Magistrate and the trial court granted the respondents their plea for bail on the grounds that the prosecution had ample time
to complete investigations.
The State on the same day applied to the High Court seeking a revision of the decision given by the trial court. It was the
case of the State that the decision to release the applicants had been founded on wrong principles of law and that the trial court
had failed to take cognizance of the fact that the case touched on national security. The State demanded for the applicants to
be remanded in custody pending the hearing and determination of their respective cases. It was contended that they were
likely to prejudice the investigations which involved a huge cache of ammunitions. After considering the arguments of the
State counsel, the High Court allowed the Attorney Generals exparte application to revise the order of the Chief Magistrate
It suspended the cash bail paid and directed the accused persons to be detained in remand for a further 14 days to allow for
completion of investigations.
ers concerning national security, the prosecution had to be possessed of information which was defnit
In making allegations on matters concerning national security, the prosecution had to be possessed of information
which was defnite and which clearly showed that there was a foreseeable risk to the interest of the public or that
a cognizable offence was likely to be committed if the accused person was released on bail
The applicants consequently fled a Notice of Motion expressed under section 60(1) of the Constitution of Kenya and section
123(3), section 125(1) and (2) of Criminal Procedure Act (Cap. 75) seeking the reinstatement of the cash bail previously
granted to them by the trial court. It was submitted that the state had erred when extracting the order from the High Court as
the judge had not reversed the order but rather, she had revised it and had suspended the bail. They argued that the application
to the High court was for the revision and not the reversal of the lower courts orders. It was the argument of the advocates
appearing for the respondents that the orders that were issued by the lower court were still valid and had the full force of law
after the lapse of 14 days. The whole order made by the High Court was a collective order and the Judge had been clear in
her decision that the accused persons be retained for a period of 14 days. He also submitted that the suspension of the cash
bail related to the period of 14 days and that it was not a general suspension, it was not a perpetual suspension. He stated that
the factual position was that the cash bail had already been paid and having paid the cash bail, the respondents were entitled
to bail after 14 days.
In making allegations on matt
Held:
1. Bail was a vital aspect of every criminal justice system. Any person who was held in custody pending trial suffered the
same dent on his liberty as one serving a sentence of imprisonment after conviction. The law was that a person who was arrested
or detained upon reasonable suspicion of having committed or being about to commit a criminal offence and there being nil
chances of having his case determined within reasonable period, was entitled to be set free on reasonable bail conditions.
2. Justice required an impartial mind to consider whether the suspicion of the detaining authority carried a high degree
of reliability such that pre-trial detention should be ordered. Pre-trial detention was an assault to the liberty of an accused
person and should be discouraged in circumstances where the evidence available required one to be released on bail pending
the hearing and determination of his case. It was important to note that the liberty of a citizen was a cherished right, it was
inalienable, it was indefeasible, it was incorrigible, and it should not be curtailed ordinarily except on consideration of public
interest.
3. In deciding whether or not to grant bail, the basic factor was to secure the attendance of the accused person to answer the
charges brought against him. The court had to take into consideration various factors and circumstances and one paramount
consideration was whether the release of the individual would endanger public security, safety and the overall interest of the
wider public.
4. The issue of national security and interest was a fundamental issue which required extreme caution and dedication. Its
magnitude, seriousness, its gravity and implication had to be brought to the attention of the court in order to make an informed
and fair decision. In making allegations on matters concerning national security, the prosecution had to be possessed of
information which was defnite and which clearly showed that there was a foreseeable risk to the interest of the public or that a
cognizable offence was likely to be committed if the accused person was released on bail. There had to be legitimate information
to support the allegations that the accused persons were likely to prejudice or jeopardize the interest of the public.
5. Reasonable suspicion had to be founded on reasonable grounds; mere suspicion could not be a basis to indict an individual
that he was likely to compromise national security. Specifc events and facts had to be disclosed to court to enable it to judge
the genuineness and reasonableness of the allegations.
6. The State had failed to bring to the attention of the trial court and to the High Court specifc facts or circumstances
regarding the contention of national security, public order and tranquility. In determining or assessing what amounted to a
security risk, it was incumbent upon the prosecution to place evidence to demonstrate that the release of the accused persons
would endanger the security of the country. It was important to appreciate that absolute security was impossible.
7. Fear or expression of fear could not be a basis to determine or to assess the risk posed by the respondents. Where the fear
was a reason for modifying or suspending a civil right, it had to be accompanied by a well formed belief that modifcation,
suspension and/or refusal of a right would actually make a difference to the prospect that fear.
8. Whilst security considerations make the granting of bail most unattractive, unlikely and unfavourable, nevertheless the
courts must be allowed to fulfll their traditional function of balancing the interest of State and those of individual. Traditionally
the courts will not allow any individual to be deprived the right to his freedom and liberty, unless every form and every step
in the process was followed with extreme care and precision.
9. It was the intention of the High Court to suspend the situation obtaining before the Chief Magistrates court for a period
of 14 days. That is why the Judge made an order that the respondents be detained in remand for a further 14 days in order to
allow completion of investigations. If it was the intention of the Judge to set aside the orders of the Chief magistrate, she had
the ability, capacity and the knowledge to express herself. It was therefore wrong for the State counsel to say that the orders
by the Judge were permanent until the hearing and determination of the lower court matter
10. It was wrong for the State counsel to extract an order which was a complete departure of the orders given by the Judge. By
doing so, the State transgressed on an area which was dangerous and which was likely to attract civil and penal consequences.
It was wrong to include the word reverse in the place of the word revise as used by the judge. That created the impression
that the Judge radically and materially altered the situation.
11. The court was a component and was the foundation that upheld national security. It was a pillar that held a society
together by ensuring fairness and justice in all transactions between individuals and between individuals and State. The courts
were guided by evidence and they had to always observe that duty which was fdelity to the law. The court was charged with
the duty to be independent, impartial and to give a fair hearing within reasonable time for all matters and to all parties who
brought their complaints, cause of action and grievances before court. It could not afford to abdicate and/or abrogate that
responsibility simply because there was an allegation that a party was likely to endanger national security. The party seeking
to beneft from the power of the court was encumbered and/or obliged to supply documentary information and evidence to
sustain the allegations.
12. The applicants were entitled to be released on bail so that their liberty could be restored in absence of any evidential
proof that they were likely to endanger national security. Incarceration before conviction violently destroyed the prisoners
private. Judicial determination of bail therefore mitigated against arbitrary arrest and detention on framed up charges and
protected the rights of the accused by ensuring an independent assessment of the question of his release on favourable bail
terms pending the hearing and determination of the charges against him.
Application allowed; the 1
st
applicant in addition to the cash bail deposited to be released on two sureties of Kshs.3 million
each, the 2
nd
applicant to be released the cash bail paid. The 3
rd
applicant in addition to the cash bail to be released on
two sureties of Kshs.500,000/=. The 4
th
applicant and the 5
th
in addition to the cash bail paid released on two sureties of
Kshs.200,000/=.
____________________________________
85
Interlocutory Injunction Against Alleged Copyright Infringement
Oxford University Press (E.A) Limited v Longhorn Publishers (K) Limited & 4 others [2010] eKLR
Civil Suit No. 729 of 2009
January 29, 2010
M.K. Koome, J.
Civil Practice and Procedure-Injunction - interlocutory injunction- application seeking orders
of interlocutory injunction- principles to be considered in determining whether or not to grant
interlocutory injunction -claim of infringement of copyright by plagiarizing the plaintiff s
works -whether the plaintiff had established a prima facie case with a probability of success-
what constituted a prima facie case - whether the plaintiff was entitled to an interim order of
injunction.
Intellectual Property - copyright suit for alleged copyright infringement alleged infringement
of the copyright to a Swahili dictionary- dictionary making a unique craft requiring the words to
appear alphabetically and the defnitions of words to have similarities-where there were similarities
between the applicants dictionary and the allegedly infringing copies of the defendants in the
defnitions, design and artistry of presentation as well as the illustration- where some errors in the
plaintiff works were also repeated in the defendants publication-whether on the face of the record
the defendants publication had infringed the plaintiff s copyright by copying or plagiarizing the
plaintiff s works - Copyright Act (Cap 130), section 35(4)
The plaintiff/applicant, a publishing company, was the co-author and publisher of the books entitled Kamusi ya Kiswahili
Sanifu and Kamusi ya Shule za Msingi and hence was the owner of the copyright in respect of those books. The applicant
averred that in the development of KSM, it commissioned the second defendant/respondent as a co-author and entered into
an agreement with the second respondent who was not, during the continuation of the agreement, to publish or cause to be
published any work that was likely to confict with the sale of KSM. It was further agreed that the second respondent would
not during the continuation of the agreement prepare or edit for any other publishers work on the same subject matter without
the written consent of the applicant.
The dispute arose when the plaintiff/applicant noticed the sale of the said books published by the frst defendant and co-
authored by the second, third, fourth and ffth defendants/respondents. The said publication contained words, defnitions,
notes, summaries and illustrations which were an imitation and were directly copied from the plaintiffs books KKS and KSM.
It was alleged that the defendant copied the applicants work by infringing on the applicants works without the applicants
consent or acknowledgment.
The applicant hence fled a suit and made an application seeking injunctive orders against the respondents to be restrained
from publishing, advertising and offering their publication for sale.
The application was opposed; the respondents made a preliminary objection on points of law. They contended that the
applicant lacked the locus standi to fle the suit under the Copyright Act (Cap 130), because that the applicant had assigned
the copyright to a third party and therefore had no locus standi to sue. According to the respondents, there was no assignment
of copyright as provided for under section 35(4) of the Copy Right Act
On the merits of the application, it was submitted that the plaintiffs application did not meet the threshold of granting an
interim order of injunction. It was stated that any injunction issued would be in vain as the respondents had already distributed
copies of their publication which would be sold outside their control. Secondly, it was argued that the plaintiff had not been
able to demonstrate that its case had a high probability of success. It was submitted by the defendants that dictionary making
process necessitated certain similarities for instance all entries in the dictionary must be in alphabetical order, common words
have common defnitions and it was hence inevitable to have similarities in dictionary making.
It was denied that, although the defendants work compared to the plaintiffs works and looked similar, the works were not
identical as the defendants illustrations were created by an artist and not copied from the plaintiffs works. The defendant
was in fair trade and the plaintiff merely feared fair competition. Finally, it was submitted that the plaintiffs claim could
adequately be compensated by damages if any could be proved because the frst respondent was a large and stable company
which could afford to pay damages.
The Hon. Lady Justice
M. K. Koome
Held:
1. It was not disputed that there were several defnitions, illustrations, headwords which were lifted directly from the plaintiffs
works. The respondents publication had indeed infringed the plaintiffs copyright by copying or plagiarizing the plaintiffs
works in the defendants publications.
2. There were sound arguments by the defendants that dictionary making was a unique craft requiring the words to appear
alphabetically and the defnitions of words to have similarities. There was also no ownership over the language as the words
emanated from the language and there was no originality that could be said to be the monopoly of the plaintiff in the language.
However, there were so many similarities not only in the defnitions but in the design and artistry of presentation as well as
the illustration. Even in some pages where the plaintiff made errors in their works, the same were repeated in the defendants
publication. More fundamentally, there was no reference to or acknowledgement of the works by the plaintiff.
3. The plaintiff had established a prima facie case with a probability of success going by the evidence on record especially
the admission by the second defendant that there were substantial similarities that appeared in the defendants work. The
applicant would suffer substantial loss unless the defendant was restrained from further publishing and selling their works
which imitated the plaintiffs works.
Application allowed on condition that the plaintiff would issue an appropriate undertaking to compensate the defendant for
damages.
____________________________________
Forfeiture of Property Seized Pursuant to an Offence Under The Forests Act
Peterson Njue Njeru v Maralal Senior Resident Magistrate & another [2010] eKLR
Judicial Review 64 of 2009
January 29, 2010
W. Ouko, J.
High Court at Nakuru
Judicial Review certiorari-application for orders of certiorari to quash the decision
of the Senior Resident Magistrate ordering the forfeiture of a motor vehicle applicant
claiming failure by magistrate to give the applicants a hearing-application objected
to on the ground that it was incompetent and it did not fall within the provisions for
granting certiorari and that the forfeiture order was reasonable-whether it was
automatic upon conviction of possession of sandal wood for the magistrate to order
forfeiture of the lorry-whether the magistrate was in violation of the rules of natural
justice- Criminal Procedure Code (Cap 75) Forests Act(Cap 385)section 131 and 389
A(1), Forests Act No. 7 of 2005), 2005 section 55(1) .
Statutes-interpretation of statutes-use of the word shall and may whether the
use of word may gives the court the discretion whether or not to impose the penalty
of forfeiture of a motor vehicle- section 55(1) of the Forests Act No. 7 of 2005, section
55(1) of the Forests Act (Cap 385) (repealed).
The applicants were the owners of a motor vehicle which had allegedly been used in
the illegal transportation of lumber obtained from a protected tree species. The frst
applicant and the driver of the vehicle had both been tried in a subordinate court with
the offence of being in possession of sandal wood contrary to section 34(1) and (2) as
read with section 55(1) (c) of the Forest Act (Cap 385). While the frst applicant was acquitted, the driver was convicted and
sentenced and the court ordered that the motor vehicle was to be forfeited to the government.
The applicants then fled a judicial review application challenging the subordinates court order of forfeiture. They sought an
order of certiorari to quash the order arguing that before an order of forfeiture could be made, any party who could be affected
by it had to be heard. The applicant relied on the provisions of section 131 and 389 A(1) of the Criminal Procedure Code. It
further argued for the applicants that section 55(1) of the Forests Act, No. 7 of 2005 did not impose a mandatory duty on the
trial court to order the forfeiture of the lorry and that although there was no provision in that Act for the applicants to be heard
before the forfeiture, the court was duty bound to hear them.
The application was opposed on the ground that it was bad in law, inapt, misconceived and incompetent. It was argued that the
application did not fall within the provisions for granting certiorari. It was submitted that the application had no suffcient
grounds and the forfeiture order was reasonable. It was the respondents argument, that section 55(1) Forests Act did not
W. Ouko
87
require the trial court to hear any party before a forfeiture order was made. The respondent relied on an authority where the
decision had been based on the repealed Forests Act.
Held:
1. It was necessary to compare the two provisions of the repealed legislation section 55(1) of the Forests Act) (repealed)
and those of the present Act section 55(1) of the Forests Act No. 7 of 2005 with regard to the penalty of forfeiture. In the
repealed Act, the word shall was used while in the Act No. 7 of 2005, the word used was may. The use of the word
may gave discretion to a court on whether or not to impose separate fnes which was to be contrasted with the
use of the word shall which provided for a mandatory sentence. It was hence not automatic upon conviction for the
trial court to order forfeiture of the lorry.
2. An order of certiorari would be issued by the High Court to quash a decision made by a public body if the decision was
made without or in excess of jurisdiction or where the rules of natural justice were not complied with.
3. Concept of fair adjudication had two cardinal principles namely
a. that no man could be a judge on his own cause and that
b. no man could be condemned unheard;
These two principles of natural justice had to be observed by the courts save where their application was expressly
excluded.
4. Having been acquitted under section 210 of the Criminal Procedure Code, the frst applicant did not have the opportunity
to explain his circumstances to the court. It followed that, without hearing the persons having an interest in the lorry, the trial
magistrate was in violation of the rules of natural justice.
Application allowed, order of certiorari issued.
____________________________________
Defamation: Assessment of General Damages
Francis Xavier Ole Kaparo v Standard Limited & 3 others [2010] eKLR
Civil Case 1230 of 2004
February 1, 2010
D. A. Onyancha, J.
Tort -defamation - libel damages- compensatory and aggravated damages for
defamation- imputations of corruption, dishonesty and interference with the course of
justice made against the plaintiff in his capacity as Speaker of the National Assembly
publication published in the East African Standard and Sunday Standard -liability
entered by consent - assessment of damages - matters which a court should take into
account in assessing damages plaintiff, the Speaker of the National Assembly of
Kenya at the material time factors to be considered by the court- manner and extent
of circulation- conduct of both the plaintiff and the defendant- repetition of the libel,
failure to contradict it, insistence on a defence of justifcation; and a non-apologetic
cross-examination whether the plaintiff was entitled to both compensatory damages
and exemplary damages
Tort - defamation-assessment of damages-factors to be considered-conduct of the
defendant-publishing of an apology-nature of an apology suffciency of apology
balancing the nature and prominence of the defamatory publication-defendant publishing
an apology too small, innocuous and hidden in some corner of the paper -the defendant
further publishing words defamatory to the plaintiff-whether that kind of an apology
would mitigate the amount of damages to be awarded
Tort - defamation-aggravated damages-aggravation of damages in defamation conduct of the defendant- nature of the
defendants conduct that would aggravate damages subjecting the plaintiff to the court process only to later retract the
defence and concede liability whether this was aggravating conduct
Damages- general and special damages - assessment of damages damages for defamation - rationale of awarding damages-
damages awarded not intended to enrich the plaintiff and hence should not be excessive-need for justifcation-whether the
court was barred from making a reasonably high award in proper cases
D. A. Onyancha
The plaintiff fled a suit in the High Court claiming damages for defamation against the defendants who were the owner and
editors of a daily newspaper having a nationwide circulation in Kenya. The plaintiff averred that the defendants had falsely
and maliciously published words to the effect that while he was serving as a Speaker of the National Assembly,
1. He was a corrupt and dishonest person who was not ft for the offce of the Speaker of the National Assembly.
2. He had intended to and had obstructed, derailed and frustrated the course of justice in the Committee of Inquiry into the
death of the Late Dr. Robert Ouko.
3. He had intended to and coached, interfered with and tampered with, the witnesses giving evidence before the said
Committee.
4. He had conspired to, concealed information and evidence before the said Committee, as well as failed to facilitate the work
of the said Committee.
He averred that the publication had exposed him in his personal and professional standing and character, to public scandal,
ridicule, contempt and embarrassment and continued to cause him to suffer enormous loss and damage, anxiety and
disrepute.
Though the defendants had fled a defence opposing the plaintiffs claim and pleading fair comment, later the parties entered
into a consent agreement in which the defendants admitted liability and they were granted liberty to negotiate on the quantum
of damages. When the parties failed to agree on the quantum of damages, it fell upon the court to consider and determine the
issue. It was agued by the respondents that the fact that they had published an apology should have mitigated the damages
to be awarded.
Held:
1. An action for defamation is essentially an action to compensate a person for the harm done to his reputation. In all actions
for libel and in some actions for slander the law presumes that the plaintiff has suffered harm.
2. Damages in defamation cases varies from person to person and the court has to take into account the extent to which pain
and suffering was aggravated or reduced by the defendants subsequent conduct. The sum the court awards must therefore
compensate the plaintiff for the damage to his reputation; vindicate his good name; take account of the distress, hurt and
humiliation which the defamatory publication has caused
3. The plaintiff had to be awarded a sum to which he could refer to convince those who knew of his defamation that he
was wrongfully accused. The award of damages had to cover the injured feelings, the anxiety and uncertainty undergone
in the litigation, in the absence of apology or reaffrmation of the truth of the matters complained of or the malice of the
defendant.
4. In assessing damages, the whole conduct of the plaintiff and the defendant from the time of publication until the time of
judgment will affect the level of general damages downwards or upwards and hence must be looked at.
5. The aggravated damages were meant to compensate the plaintiff for the additional injury going beyond that which would
have fowed from the defamatory words or statements caused by the presence of the aggravating factors.
6. Malicious and/or insulting conduct on the part of the defendant would aggravate the damages to be awarded. Damages
would also be aggravated by the defendants improper motive i.e. where it was actuated by malice. Repetition of the libel;
failure to contradict it; insistence on a fimsy defence of justifcation; and a non-apologetic cross-examination were matters
that would also aggravate damages.
7. The apology published was a sign that the defendants realized their folly. However, the fact that the apology was too
small, innocuous and hidden in some corner of the paper suggested that they did so either to cover themselves against future
litigation or merely to cover their malicious intention. The defendants meant little in publishing the apology as they on a later
date went ahead to publish another scathing, false and malicious article against and concerning the plaintiff.
8. The conduct of the defendants with regard to the trial invited the court to award exemplary and/or punitive damages.
They encouraged the plaintiff to proceed to hearing of the suit and subjected him to the rigorous process of the court in such
a complicated suit. They had the plaintiff testify only to concede to all the evidence placed on record against them without
placing themselves in the dock. That conduct would aggravate the damages to be awarded.
9. The plaintiff had sought a publication of a prominent and appropriate apology from the beginning and had tried to minimize
damage on his name. His conduct throughout had been very reasonable despite the embarrassment of being falsely called a
thief and/or a corrupt person unft to be Speaker of the National Assembly of Kenya.
10. Damages awarded in defamation cases were not intended to enrich the plaintiff and hence they should not be excessive.
There had to be proper justifcation of awarding them. However, the court was not prevented from making a reasonably high
award in a proper case.
Judgment entered for the plaintiff in the sum of Kshs.7,000,000/- .
____________________________________
89
Judicial Review in Employment Contracts
Republic v Moi Teaching and Referal Hospital Board Ex-parte Joseph Ochenge Ogaro [2010] eKLR
Miscellaneous Civil Application 353 of 2008
February 10, 2010
J. L. A. Osiemo, J.
High Court at Eldoret
Judicial Review certiorari-remedy-application to quash a decision dismissing the ex-
parte applicant from employment- contract of employment- a contractual relationship
of master and servant-breach of contract-remedy available-master-servant relationship
within the province of private law and the alleged rights enforceable within the confnes
of private law - whether a contract of employment could be subject to Judicial Review
-whether judicial review was applicable where there was an alternative remedy- Law
Reform Act (Cap 26) Section 8 and 9, Civil Procedure Rules, Order 53 Rules 1, 2 and 3
Employment law master and servant relationship law governing claims arising from
the termination of such relationship whether such claims were subject to contract law
or judicial review
The ex-parte applicant made an application under Section 8 and 9 of the Law Reform Act
(Cap 26) and Order 53 rules 1, 2 and 3 of the Civil Procedure Rules seeking an order of
certiorari to remove and quash the decision arrived at by the respondents Hospital Staff
Disciplinary and Advisory Committee and the subsequent dismissal. The application was
made on the grounds that the respondent acted ultra vires in dismissing the applicant from
service. It was the applicants case that the respondents Committee had breached the basic
principles of natural justice particularly the rule of fair hearing as he had not been accorded an opportunity to be heard.
The application was opposed and it was argued that the allegations by the applicant were baseless and untrue as the procedure
for dismissal of the applicant pursuant to the respondents terms and conditions of service was duly followed. It was further
contended that the applicants application was incurably defective in law as the contract of employment for the applicant was
not subject to judicial review. It was submitted that the rules of natural justice did not apply to a contract of employment, and
that in any event the applicant had been afforded an opportunity to be heard. It was emphasized that the order of certiorari
could not be granted as it was trite law that the availability of alternative relief was a bar to judicial review and that the remedy
for breach of a contract of employment for personal services was damages only.
Held:
1. An employment contract conferred rights and obligations on both parties to the contract as each party agreed to be bound
by the terms and conditions contained therein. The applicant was employed by the respondent as an Accountant which created
a contractual relationship of master and servant, and hence the applicants remedy lay in a claim for damages for breach of
contract and not in judicial review.
2. The law was well settled that where an ordinary contractual relationship existed between master and servant and the master
terminated the contract, the servant could not obtain orders of certiorari. If the master rightfully ended the contract, there could
be no complaint but where the master wrongfully terminated the contract, the servant could pursue a claim for damages.
3. Judicial review was not applicable where there was an alternative remedy. A master-servant relationship fell within the
province of private law and the alleged rights thereto were enforceable within the confnes of private law. If there was a breach
of contract of employment, the applicant was entitled to a claim in a civil court. It was a case of contract for personal service
and the most effcacious remedy would have been a claim in a civil court.
____________________________________
J. A. Osiemo
90
ISSUES FOR LAW REFORM
LAW REFORM
Submissions by Monica Achode, Andrew Halonyere, Njeri Kamau & Nelson Tunoi. Report compiled by Michael Murungi.
The following cases were marked for the special attention of the Attorney General, the Kenya Law Reform Commission, the
Registrar of the High Court and the legal fraternity in general.
Whereas the law provides that an application for leave to institute judicial review proceedings is to be made ex parte,
must it also be heard ex parte or does the Court have a discretion to order an inter partes hearing?
Alpha Knits Limited & 2 Others v Ruiru Municipal Council [2009] eKLR
High Court at Nairobi (Nairobi Law Courts) (Justice G. Dulu)
May 7, 2009

Under Order LIII (53) paragraph 1(2) of the Civil Procedure Rules, an application for leave to apply for a judicial review
remedy shall be made ex parte to a judge in chambers The judge may, in granting leave, impose such terms as to costs
and as to giving security as he thinks ft (emphasis supplied).
The applicant brought an application in the High Court seeking leave to fle judicial review proceedings and praying that
the granting of leave should operate as a stay of the decision of a local authority which he was challenging. The High Court
ordered that the application should be served on the respondent and set it down for hearing inter partes. However, Mr. A.B.
Shah, counsel for the appellant, later reported that service was not effected on the respondent because, in counsels view, the
application was by law supposed to be heard ex parte and that the Court was wrong in ordering a hearing inter partes. In
support of his argument, counsel cited the Court of Appeal decisions in Republic v Commissioner of Co-operatives ex parte
Kirinyaga Tea Credit Society Ltd [1999] 1 EA 245, Oilcom Kenya Ltd v Permanent Secretary, Ministry of Roads and Public
Works Nairobi Civil Appeal No. 10 of 2007and Judicial Commission of Inquiry into the Goldenberg Affair & 3 others v
Kilach [2003] KLR 249
While appreciating these decisions of the Court of Appeal and admitting that indeed, he was bound by them, Dulu J however
noted that the decisions of the Court of Appeal on the subject have not been uniform. He referred to the decision in Shah
v Resident Magistrate, Nairobi [2001] 1 EA 208 in which the Court of Appeal had appreciated what was stated in Republic
-vs- Commissioner of Cooperatives and concurred in the view expressed by Keiwua JA that:

In my respectful view, it is within the discretion of a judge to adjourn the whole application for leave,
and leave to operate as a stay of proceedings, for hearing inter partes, but I do not think that that discretion
extends to enable such a judge to hear that application both ex parte and inter partes
In this face of conficting decisions of the Court of Appeal, Dulu J concluded, I have to make a choice. My view is that,
the discretion of a judge to decide to hear the application inter-partes is left open. Each case has to be considered on its own
merits, depending on the peculiar circumstances of the case, and the orders sought.
Dulu J then adopted the reasoning of the Court of Appeal in Shah v Resident Magistrate and ordered that in the particular
facts and circumstances of the case before him, the application should be heard inter-partes.
Can persons of Caucasian descent marry under the African Christian Marriage and Divorce Act (Cap. 152)?
MJBM V VLMNG [2009]eKLR
High Court at Kisumu (Justice J.R. Karanja), July 24 2009
This was a petition for the dissolution of the marriage in which for purposes only of making clear the law reform issue arising
from it, it is important to note the parties were persons of Caucasian descent. Apparently unknown to the parties, their marriage,
which had been celebrated and registered in Kenya, had been registered under the African Christian Marriage and Divorce Act
(Cap 152). Under section 3(1) of the Act, which was passed in 1931, the Act was to apply only to the marriages of Africans
one or both of whom profess the Christian religion and to the dissolution of such marriages. As the High Court found, the
proper regime of law under which the parties marriage should have been registered was the Marriage Act (Cap. 150)
When the petitioner discovered the misnomer, he had asked the Court to nullify the entire proceedings on the main ground
that at the time of their marriage, neither the petitioner nor the respondent were Africans within the meaning of the African
Christian Marriage and Divorce Act.
91
The term African was not defned in the Act though the Concise Oxford English Dictionary (10
th
Edition) defned an African
as a person from Africa, especially a black person or a person of black African descent.
In declaring the marriage null and void ab initio, Justice J.R. Karanja observed:
The justice of this case prevails upon this court to adopt and develop the trend until such time that the
African Christian Marriage and Divorce Act is thrown into the legal dustbins. The justice of the case also
demands that this court makes a determination on the issues arising notwithstanding the non existence of
the grounds provided by section 14 of the Matrimonial Causes Act and the existence of the African Christian
Marriage and Divorce Act. The existence of the African Christian Marriage and Divorce Act in our statutes
must be deprecated by this court just like in the later decisions cited herein. It serves no useful purposes in
the Kenya of today. It is Unconstitutional and its very existence is nothing more than an enhancement and
maintenance of the colonial mentality and status quo of racial segregation.
Statutory ambiguity on the validity of legal documents executed by a person not qualifed to practice as an Advocate of
the High Court.
National Bank of Kenya Ltd v. Wilson Ndolo Ayah [2009] eKLR
Court of Appeal at Nairobi (P.K. Tunoi, S.E.O. Bosire & E.O. Okubasu JJ A)
December 4, 2009
This case concerned the validity of legal documents (a charge and a deed of guarantee) drawn by an advocate who at the time
of executing the documents did not hold a current practicing certifcate.
As the Court observed, the Advocates Act (Cap 16) section 34 seems to be concerned with prohibiting the offering of legal
services at a fee by a person who is not qualifed as an advocate, and hence the section, read together with section 9, does not
expressly address the question of the validity of legal documents drawn and executed by such a person. The Court compared
this with the Stamp Duty Act (Cap 480) which in section 19 expressly excludes from admission in evidence, except in certain
cases, any instrument chargeable with stamp duty which has not been duly stamped.
Though the Court of Appeal declared that the charge and instrument of guarantee in this case were invalid, it nevertheless
recommended the amendment of the Advocates Act to include a clause similar to the one in the Stamp Duty Act in order to
purge any doubt, at least in statute law, as to the validity of documents drawn by unqualifed advocates.
Commuting of sentences by Presidential decree in cases where appeals are pending.
Benson Kedisia v. Republic [2009] eKLR
Court of Appeal at Eldoret (R.S.C. Omolo, E.O. OKubasi & J.G. Nyamu, JJ A)
October 23, 2009
The appellant in this case had brought an appeal against his conviction by the High Court on a charge of murder and a sentence
of death. It appeared that while the appeal was pending, the appellant may have been the subject of a Presidential Decree
commuting his sentence of death to one of life imprisonment.
In allowing the appeal, substituting the conviction for murder with a conviction for manslaughter and pronouncing a sentence
of seven years imprisonment, the Court of Appeal stated:
We take this opportunity to respectfully suggest to those whose duty it is to advise His Excellency the
President to withhold any action or intervention by the President in respect of prisoners who have been
sentenced to death and whose appeals are still pending in the courts.
The accordingly ordered that its orders must supersede any other orders which may have been in force with regard to the
appellant.
Can the term jointly with respect to committing the offence of robbery with violence be applied in the same manner
with respect to a gang rape?
B.K.V & F. K. M v Republic [2009] eKLR
High Court at Malindi (Justice H.A. Omondi), May 29, 2009.
The two appellants brought an appeal against their conviction and sentence in the Senior Resident Magistrates court at Kilif
on, among other charges, jointly raping the complainant contrary to section 3(1)(a)(b) of the Sexual Offences Act 2006.
Among their grounds of appeal was the argument that the charge against them was defective in charging them jointly for
the offence of rape. They cited the Court of Appeal decision in Paul Mwangi Murunga v Republic Criminal Appeal [2008]
eKLR in which the Court stated:
92
We are unable to appreciate how two men can at the same time jointly enter or try to enter her genital
organs. The act is committed by each one of them alone, and if there be two or three of them, each must be
charged on a separate count of rape.
The legal issue was, whether in rape cases the term jointly when used in framing the particulars of a charge could have the
same legal sense/meaning like in other offences, for instance robbery with violence.
As Lady Justice Omondi observed:
My initial reaction when I read the Court of Appeal decision in Murungas case was How true, joint rape
does not make practical sense no matter how much circumspection the attackers exercise it would have to
be one individual committing the act followed by the other. Yet from a legal sense of the word jointly
and drawing from other instances where persons are charged jointly, for instance in armed robbery otherwise
referred to as Robbery with violence the individuals are deemed to be together in a gang, out of say a gang
of six, may be only two are armed yet the entire group who will be acting in concert with their colleagues
to achieve their intentions (although not sharing the frearm) will be deemed to be acting jointly (may be
one was driving the get away car, the other was keeping watch of intruders, another was simply barking
orders, and yet another may have been collecting the loot, while the two armed ones would be the ones either
fring or brandishing the weapons yet they will all be deemed to be acting in concert reason? They had a
joint mens-rea. Perhaps the Penal Code ought to have in its interpretation section, the meaning of the word
jointly, because when I extrapolate, then the situation I have [alluded] to could well be men taking turns at
raping a woman instead of taking the loot all acting in concert, and with a criminal intention.
However, the Judge further observed, since there was no such defnition, and being bound as she was to follow the decision
of the Court of Appeal, she found that the charge of rape was defective and prejudicial to the appellants. For this and other
reasons, the appeal was therefore allowed and the appellants were set at liberty.
The judicial opinions analysed in this Bulletin are available on www.kenyalaw.org

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