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| Issue 103| Newsletter Archive | Friday 23th April 2010 | |
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COURT OF APPEAL SETTLES THE QUESTION OF ‘PRIVATE PARTS’ M. B. O v Republic [2010] eKLR (www.kenyalaw.org) The Court of Appeal has in a land mark case upheld a conviction on the charge of defilement by the High Court at Nakuru and stated that the days when females’ buttocks were not considered private parts were long gone. The Court made its decision in an appeal case brought by M. B. O (the appellant), a 63 yr old man accused of defiling 3 minors J, L and W in Nakuru aged 6, 9 and 11 years (parties’ identity concealed because it a case involving minors). The appellant had been charged with three counts of offence of defilement in the Magistrate’s Court in Nakuru contrary to section 145 (1) of the Penal Code. In the alternative, the appellant was charged with the offence of indecent assault contrary to section 144 (1) of the Penal Code. During the hearing of case, the trial magistrate was satisfied that the offence of defilement had been proved beyond reasonable doubt, convicted the appellant and sentenced him to 20 years imprisonment on each count of to run consecutively. Being aggrieved by that decision, the appellant moved to the High Court on appeal on the ground that the three main counts relied on were incurably defective since they omitted to describe the acts of carnal knowledge as ‘unlawful’. Further, the appellant contended that the evidence adduced was inadequate to convict him and that the sentence imposed was harsh, excessive and illegal. The High Court examined the provisions of section 145 (1) of the Penal Code and held the main counts were incurably defective. It therefore quashed the conviction and set aside the sentences imposed by the trial magistrate. It however analyzed the evidence on record and was satisfied that the evidence supported the alternative count of indecent assault. The High Court then proceeded to sentence the appellant to 10 years imprisonment for each of the three counts to run concurrently. The appellant further aggrieved by that decision appealed to the Court of Appeal. He contended that if the main counts were dismissed, the alternative counts were also not sustainable. Further, that the particulars stated in the alternative counts did not amount to any offence under section 144 of the Penal Code. The appellant argued that once the main charge had been found defective, the evidence adduced to support it dissipates and therefore could not sustain an alternative charge. The appellant further contended that particulars of private parts referred to in the alternative count were buttocks and in his view, buttocks were not private parts and therefore the particulars did not constitute an offence. The state opposed the appeal and maintained that the alternative counts were sustainable and that buttocks were private parts of a human being. The evidence adduced before the trial court was that the appellant was a neighbour to three minors and that on more than one occasion between the months of August and September 2005, he lured the minors to his house molested them and offered them sweets in exchange for their silence. When he was found out he was almost lynched by irate neighbours but he was rescued by the police and consequently charged. In analyzing the evidence on record, the Court of Appeal pointed out that the trial magistrate had found that the omission of the word ‘unlawful’ from the charge did not occasion any failure of justice to the accused person and therefore the charge was not defective. The High Court reversed the findings of the trial magistrate on the basis that section 145 under which the appellant was charged gave defenses that would render the acts committed by the appellant lawful; if the accused had a reasonable cause to believe and did believe, that the girl was of or above the age of 14 years or was his wife. That court held that due to the tender ages of the complainants, the two defenses were not available to the accused. However, the High Court still declared the charge was defective. The Court of Appeal stated that the acquittal of the appellant on the main counts was irreversible. The appellate court opined that in similar situations that had arisen in the past, the Courts fell back to section 382 of the Criminal Procedure Code that provided that a finding, sentence or order passed by a court of competent jurisdiction should be reversed or altered on appeal on account of an error, omission or irregularity in the charge unless the error, omission or irregularity had occasioned a failure of justice. It noted that the section had not been brought to the attention of the High Court. The Court of Appeal further stated that if evidence of a main count did not support the element of the offence, the evidence did not evaporate into thin air. It was examined to find out if it supported a minor and cognate offence and if it did prove such an offence, conviction should then follow and that the law allowed for this procedure under section 179 of the Criminal procedure Code The Court of Appeal concluded that the appellant’s contention that if the main charge was defective the alternative charge could not be sustained was faulty and proceeded to dismiss it. On the issue that the buttocks are not private parts, the Court of Appeal reiterated its own definition of indecent assault on females in the 1983 case of Gitau v Republic [1983] KLR 223 where it was stated that an assault accompanied by utterances that were suggestive of sexual intercourse amounted to indecent assault. It provided that the touching, for example, of breasts or private parts of a female without being accompanied by utterances suggestive of sexual intercourse was also indecent assault. The test was usually whether the assault was intentional and whether it was indecent. The Court of Appeal observed that in the present case, the alternative count referred to private parts and mentioned buttocks in parenthesis. It found that there was ample evidence that the private parts of the children were touched by the appellant with his male organ and that the appellant had removed the children’s underwear thus exposing their buttocks. It was the court’s view that the buttocks of a woman were private enough to attract a charge of indecent assault if they were intentionally exposed. It therefore dismissed the appellants second ground of appeal. The Court of Appeal noted that the sentence imposed by the High Court omitted to include hard labour as part of the sentence as provided by section 144 (1) of the Penal Code. It dismissed the appeal, upheld the conviction and sentence of the appellant and ordered that the appellant serve the sentence imposed by the High Court together with hard labour. |
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Gazette & Legal Notice Vol CXII – No 40 Dated April 23,2010 GAZETTE NOTICE NO. 4079 THE STATE CORPORATIONS ACT THE CATERING AND TOURISM DEVELOPMENT LEVY APPOINTMENT IN EXERCISE of the powers conferred by section conferred by section 6 (1) (a) of the State Corporations Act, I, Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya appoint- ANANIA M. MWABOZA To be non-executive Chairman of Catering and Tourism Development Levy Trustees, for a period of three (3) years. Dated the 9th April, 2010. MWAI KIBAKI, ![]() GAZETTE NOTICE NO. 4080 THE KENYA KERIO VALLEY DVELOPMENT AUTHORITY ACT APPOINTMENT IN EXERCISE of the powers conferred by section 4 (1) of the Kerio Valley Development Authority Act, the Minister for Regional Development Authorities appoints- AMB. BULLUT SIMON BARMASI ARAP To be a member of the Kerio Valley Development Authority, for a period of three (3) years, with effect from 19th April, 2010. Dated the 13th April, 2010. F.O. Gumo, ![]() GAZETTE NOTICE NO. 4081 THE EWASO NGIRO SOUTH DEVELOPMENT APPOINTMENT IN EXERCISE of the powers conferred by section 4 (1) (l) of the Ewaso Ngiro South River Basin Development Authority Act, the Minister for Regional Development Authorities appoints- Chacha Mwita, To be members of the Ewaso Ngiro South Development Authority, for a period of three (3) years, with effect from 13th April, 2010. F.O. GUMO, ![]() GAZETE NOTICE NO. 4083 THE KENYA INFORMATION AND COMMUNICATIONS (No. 2. of 1998) APPOINTMENT IN EXERCISE of the powers conferred by section 465 of the Kenya Information and Communications Act, 1998, the Minister for Information and Communications appoints- Samuel Lumwe (Pr.), To be members of the Broadcasting Content Advisory Council for a period of three years, with effect from 20th March, 2010. Dated the 20th April, 2010. SAMUEL POGHSIO, ![]() GAZETTE NOTICE NO. 4084 THE SCIENCE AND TECHNOLOGY ACT THE NATIONAL COUNCIL FOR SCIENCE AND APPOINTMENT IN EXERCISE of the powers conferred by section 3 (2) (b) of the Science and Technology Act, the Minister for Higher Education, Science and Technology appoints- David Some (Prof.) – (Chairman), To be member of the Council of National Council for Science and Technology, for a period of three (3) years, with effect from 19th April, 2010. Dated the 19th April, 2010. S.J. KOSGEI, ![]() GAZETTE NOTICE NO. 4085 THE BIOSAFETY ACT THE NATIONAL BIOSAFETY AUTHORITY APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) of the Biosafety Act, 2009, the Minister for Higher Education, Science and Technology appoints- Miriam Kinyua (Prof.) – (Chairperson), To be members of the National Biosafety Authority, for a period of three (3) years, with effect from 19th April, 2010. Dated the 19th April, 2010. S. KOSGEI, ![]() GAZETEE NOTICE NO. 4086 THE CONSTITUTION OF KENYA APPOINTMENT IN EXERCISE of the powers conferred by section 69 of the Constitution of Kenya, the Judicial Service Commission appoints- John Walter Onchuru, To be Resident Magistrates/Deputy Registrars, with effect from 12th March, 2010. Dated the 13th April, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 4087 THE CONSTITUTION OF KENYA JUDICIAL SERVICE COMMISSION APPOINTMENT IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act, 2001, the Chief Justice appoints- PAUL K. ROTICH To be Senior Resident Magistrate/Deputy Registrar, with effect from 2nd July, 2007. Dated the 13th April, 2010. J.E. GICHERU ![]() GAZETTE NOTICE NO. 4088 THE CHILDREN ACT APPOINTMENT IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children At, 2001, the Chief Justice appoints- PETER M. MULWA Senior Resident Magistrate at Naivasha, to preside over cases involving children in respect of Central and Rift Valley Provinces, with effect from 1st April, 2010. Dated the 23rd March, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 4089 THE CHILDREN ACT APPOINTMENT IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act, 2001, the Chief Justice appoints- ROSE MAKUNGU Senior Resident Magistrate at Maua, to preside over cases involving children in respect of Eastern Province, with effect from 1st May, 2010. Dated the 23rd March, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 4090 THE MAGISTRATES’ COURTS ACT INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of- ALFRED G. KIBIRU Principal Magistrate to Kenya shillings one million (KSh. 1,000,000), with effect from 1st April, 2010. Dated the 19th March, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 4091 THE MAGISTRATES’ COURTS ACT INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of- JOHN W. ONCHURU Resident Magistrate to Kenya shillings one million (Ksh. 500,000), with effect from 1st May, 2010. Dated the 8th April 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 4092 THE MAGISTRATES’ COURTS ACT INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of- MUTUNGWA MAUNDU Principal Magistrate to Kenya shillings five hundred thousand (Ksh. 500,000), with effect from 1st April, 2010. Dated the 19th March, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 4093 THE KENYA POLICE ACT APPOINTMENT IN EXERCISE of the powers conferred by section 2 of the Police Act, the Commissioner of Police appoints- MAKUTANO POLICE POST In Mbeere District, (Map Reference No. CK 679143), within Eastern Province, to be a Police Station, with effect from 15th April, 2010. Dated the 15th April, 2010. M.K. ITEERE, ![]() GAZETTE NOTICE NO. 4046 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed housing development.: The proposed project intends to complete work on the River Park Estate by putting up some 318 four bedroomed maissonettes in addition to the 51 three bedroomed bungalows currently under construction in the Estate (River Park Estate), Mavoko. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4047 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed Jatropha cultivation.: The proponent of the proposed project intends to lease 50,000 Ha of land from the County Council of Malindi to support the cultivation of Jatropha for an initial period of 33 years. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4048 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the IMPLEMENTATION OF THE University of Air Travel and Related Studies. The proposed project entails construction of the following:
The project is located about 3 km. off Dagoreti road through Rhino Park road on LR. Nos. 11916/18, 11916/19 and 12252/24, Karen/Nairobi. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4049 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed Lessos-Kabarnet-Nyahururu-Nanyuki 132kV transmission line. The proposed development will involve construction of a new single circuit 132kV transmission line between Lessos-Kabarnet-Nyahururu-Nanyuki covering 235km. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4050 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed silicate plant. The proposed project will include construction of a godown, installation equipment including furnace to produce sodium silicate through the thermal process with a solid (cullet) product that is easy to handle and transport. The proposed project site is within a fast growing industrial area located approximately 7 km from Mombasa city centre along Mombasa-Nairobi Highway on LR No. 548/V/MN, Miritini, Mombasa. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4393 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed construction of residential apartments and associated amenities. The proposed project entails construction of 569 luxurious 3 bedroomed apartments with associated parking spaces, common Masjid with Madrasa, recreational area and drilling of a borehole The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4394 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed renovations, extensions and installation of salt refining plant . The proposed project entails renovation one of the Godowns in Gongoni, put up three additional godowns, also construct an office block. In one of the godowns they intend to install a salt refining plant. The proposed project is to be carried out in an already established plot no. 10755 opposite Gongoni shopping centre off Malindi – Lamu road about 22 kilometers from Malindi town. It has an area of 1026 hectares. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 4395 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed silicate plant. The proposed project will include construction of a godown, installation equipment including furnace to produce sodium silicate through the thermal process with a solid (cullet) product that is easy to handle and transport. The proposed project site is within a fast growing industrial area located approximately 7 km from Mombasa city centre along Mombasa-Nairobi Highway on LR No. 548/V/MN, Miritini, Mombasa. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4396 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed housing development The proposed housing development will be comprised of 96 three bed roomed units with servant quarters. The site is 2.023 hectares on L.R. No. 7149/28 Mlolongo Weigh Bridge along the Mombasa road. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4397 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed Karen country club bulk water supply project The Karen Country Club, (the proponent), is proposing a Bulk Water Supply for the Karen Country Club Facility in Karen, Nairobi. The proposed project scheme involves the abstraction and storage of flood water from the Mbagathi River, The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
d) District Environment Office, Nairobi West District. The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN GAZETTE NOTICE NO. 4398 REVISION OF GAZETTED FORESTS RATES IN EXERCISE of the powers conferred by section 5 of the Rating Act, the country Council of Kirinyaga has with approval of the Deputy Prime Minister and Minister for Local Government imposed KSh. 350 per acre on all Government Gazetted Forest land in Kirinyaga District, with immediate effect. Dated the 25th March, 2010. JUSTUS ARIITHI, GAZETTE NOTICE NO. 4399 RATES FOR 2008 NOTICE is given that pursuant to the provision of Section 15 (i) of the Rating Act, the Municipal Council of Migori has fixed and levied the undermentioned rates for the year 2008 and payable at the Municipal Council of Migori by 1st January, 2010. Rates are a debt to the Municipal Council of Migori and whilst every effort shall be made to deliver a demand note to every rateable owner, failure to receive the same will not be held to absolve the debtor from any liability and penalty from any rates remaining unpaid after 30th June, 2010. The unimproved Site value rates for 2008 are as follows: Industrial/Commercial user at 3% Residential user at 2% The above rates become due on the 1st January, 2010 and under section 16 (3) of the Rating Act, interest shall become payable at the rate of 2% per month or part thereof, on any rate remaining unpaid after 30th June, 2010 and part of a month shall be reckoned as one (1) month. Dated the 15th April, 2010. E.K. MUNG’AYA, Town Clerk ![]() GAZZETTE NOTICE NO. 4400 DRAFT VALUATION ROLL, 2008 PURSUANT to provisions of section 9 (3) of the Valuation for Rating Act and rule 9 (i) (ii) of the Valuation for Rating (Public Land) Rules, notice is given that the Draft Valuation Roll for 2008 was laid before the council at its ordinary monthly meeting held on 14th April 2010 and is now open for public inspection at the Treasurer’s Office, at Municipal Hall of Migori, during the ordinary working hours 8.30 a.m. to 4.00 p.m on Monday to Friday as required by section 9 (2) of this Act. In conformity with Valuation for Rating Act, section 10 (i) and Rule 9 (i) of Valuation for Rating, (Public Land) Rules, all persons or relevant authorities aggrieved either- (a) By inclusion of any rateable property in, or by the omission of any rateable property from the Draft Valuation Roll 2008; (b) By any value ascribed in the Draft Valuation Roll to any rateable property or by any other statement made or omitted to be made in the said Roll with respect to any rateable property; May on payment of a non-refundable fee of Ksh. 500.00 (Kenya Shillings Five Hundred) per entry, lodge an objection with the undersigned at Municipal Hall, Migori at any time within Twenty-eight (28) days from the date of this notice in respect of private land and six (6) months in case of public land, on prescribed forms provided for the purposes (copies of which may be obtained from the treasurer’s office on application) in respect of any entry in the aforesaid Draft Valuation Roll-2008, Municipal Council of Maori. Parties aggrieved are requested particularly to note that no person shall be entitled to urge any objection before the Valuation Court unless they shall have first lodged such notice as aforesaid. Dated the 15th April, 2010. E.K. MUNG’AYA ![]() GAZETTE NOTICE NO. 4401 DRAFT VALUATION ROLL, 2010 PURSUANT to the provisions of section 9 (3) of the Valuation for Rating Act, and section 10 (i) of the Valuation for Rating (Public Land) Rules, notice is given that the 2010 Municipal Council of Thika public and private land Valuation Roll was laid before the full Council meeting on the 9th April, 2010 as required by section (2) of the Act. The said Roll is now available in the Council offices for public inspection. Any person may inspect the said Roll between 9.00 a.m. to 1.00 a p.m. and 2.00 to 5.00 p.m from Monday to Thursday. On Friday between 9.00 a.m. to 1.00 p.m and 2.00 p.m. to 4.00 p.m Any person who feels aggrieved- (a) By the inclusion of any ratable property in or by omission of any ratable property from the draft Valuation Roll or; (b) By any value ascribed in the Draft Valuation Roll to any ratable property or by any other statement made or omitted to made in the same respect to any ratable property, may lodge an objection with the Municipal Clerk at any time before the expiration of twenty-eight (28) days from the date of this publication of this notice in respect of the private land and six (6) months in case of public land. Each objector is required to pay anon-refundable fee of Kshs. 500 on lodging any objection. No person shall be permitted to argue any objections before a Valuation Court unless he shall first lodge the notice of objection by paying the prescribed fee. Dated the 9th April, 2010. F.G. MBIUKI ![]() SUPPLEMENT NO. 23 LEGAL NOTICE NO. 46-67- The Income Tax Act – Exemptions
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Kenya Law Weekly Issue 103/2010
23 April 2010
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