Level of proof required to establish the commission of the offence of desertion in the Kenya Defence Forces
Jeffery Okuri Pepela & 25 others v Republic
Criminal Appeal Nos 153, 175, 174, 173, 171, 168, 181, 176, 169 & 172 of 2014, 17, 8, 9, 10, 2, 3, 4, 5, 6, 7, 13, 18, 19, 21 & 22 of 2015 (Consolidated)
High Court of Kenya at Mombasa
Muya, J
August 21, 2015
Reported by Beryl A Ikamari and Robai Nasike Sivikhe
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Brief facts:
The appellants were servicemen in the Kenya Navy as provided under the Armed Forces Act which was repealed and replaced by the Kenya Defense Forces Act. They decided to terminate their services by way of resignation between the years 2007 and 2008. They embarked on a clearing process and left the forces after submitting the requisite documentation.
In January and March 2014, they were summoned by the Defense Forces Council to report to their respective former bases for documentation and payment of their terminal dues. On reporting, they were placed under closed arrest until 5th April 2015 and they were charged with the offence of desertion contrary to section 74 (1) of the Kenya Defense Forces Act. Consequently, they were convicted and sentenced to life imprisonment. The appellants appealed against that judgment at the High Court.

Issues:
  1. Whether the appellants were on active service when they left the defence forces.
  2. Whether the charge sheet sufficiently disclosed the particulars of the offence of desertion preferred against the appellants.
  3. Whether the court martial was impartial given that investigations and prosecution were carried out by military personnel and the court martial was comprised of military officers.
  4. Whether the principles of sentencing and mitigating factors were considered and observed by the court martial in issuing life sentences.
Criminal Practice & Procedure- charges- charge sheet- particulars of a charge- whether particulars of the offence of desertion were disclosed- whether the appellants were provided with sufficient detail to enable them answer to the charges- Constitution of Kenya, 2010 article 50 (2) (b); Kenya Defense Forces Act No. 25 of 2012, sections 2, 74, 75, 247 and 257.
Criminal Practice & Procedure- mitigation and sentencing- whether a blanket life sentence was appropriate after considering the applicable circumstances & mitigating factors-whether the life sentence was excessive.

Constitution of Kenya, 2010
Article 50 (2) (b)

50 (2) every person has the right to a fair trial, which includes the right-
(b) to be informed of the charge with sufficient detail to answer it;


Kenya Defense Forces Act, No. 25 of 2012
Section 2

“enemy” means—
(a) any person or country committing external aggression against Kenya;
(b) any person belonging to a country committing such aggression;
(c) such other country as may be declared by the Cabinet Secretary, to be assisting the country committing such aggression;
(d) any person belonging to the country referred to under paragraph (iii);

“on active service”—
(a) when used in relation to a person, means that the person is serving in or with a unit of the Defence Forces engaged in operations against an enemy;
(b) when used in relation to a unit of the Defence Forces, means that the unit is engaged in operations against an enemy;

Section 74
74. Desertion

(1) A person who is subject to this Act commits an offence if that person—
(a) deserts; or
(b) persuades or procures any person subject to this Act to desert.
(2) A person deserts if that person—
(a) with the intention, either at the time or formed later, of remaining permanently absent from duty—
(i) leaves the Defence Forces; or
(ii) fails to join or rejoin the Defence Forces when it is the person's duty to join or rejoin them;
(b) being an officer, enlists in or enters the Defence Forces without having resigned the person's commission;
(c) being a service member, enlists in or enters the Defence Forces without having been discharged from any previous enlistment;
(d) is absent without leave, with intent to avoid serving in any place outside Kenya, or to avoid service or any particular service when before an enemy; or

(e) is absent without leave for a continuous period of more than ninety days.

Section 75
75. Absence without leave

(1) A person who is subject to this Act commits an offence if that person—
(a) is absent without leave; or
(b) persuades or procures any person subject to this Act to be absent without leave
(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act.

Section 247
247. Termination of service of members of regular force
The service of a member of the regular force is terminated upon—

(a) retirement;
(b) resignation;
(c) termination of commission;
(d) dismissal from service; or
(e) discharge from service.

Section 257
257. Mode of discharge

(1) Subject to this Part, every service member becoming entitled or liable to be discharged shall be discharged immediately but shall, until discharged, remain subject to this Act.
(2) When a service member who is entitled or liable to be discharged is serving outside Kenya, the member shall be returned to Kenya free of cost and shall be discharged on arrival or, if the member consents to the discharge being delayed, within six months after arrival in Kenya.
(3) A service member shall not be discharged unless the discharge has been authorised by order of the Service Commander or an officer authorised in that behalf.
(4) Every service member shall be given, on discharge, a certificate of discharge containing the prescribed particulars.
(5) A service member who is discharged in Kenya shall be entitled to be conveyed free of cost from the place where the member is discharged to the place stated in the member's attestation paper to be the place of attestation, or to any place in Kenya at which the member intends to reside and to which the member can be conveyed at no greater cost.

Held

  1. The Court Martial convicted and sentenced the appellants to life imprisonment for the offence of desertion. That decision ought to have been made by the court after being satisfied that the appellants were still on active service when they left the defense forces.
  2. Evidence by the appellants and respondents at trial raised the question on whether it was communicated to the appellants that their units were engaged in operations against an enemy and whether the time the operations commenced was also communicated. There was scant communication made to the appellants about the operations. Furthermore, there was minimal evidence to show that they were on active service when they left the defense forces.
  3. Determinations on whether the appellants intended to shirk important service was subjective, and the determination on whether the service was important was objective. It was the duty of the prosecution to prove beyond reasonable doubt that the appellants formed an intention to remain permanently out of duty, and whether it was an offence per se to leave the defense forces.
  4. The conduct of appellants in following the right channels to obtain the requisite authority to leave active service was consistent with a desire to follow the laws governing termination of their service. Their superiors received their correspondence and acted on it. However, the appellants made a grave mistake when they did not wait for a discharge from the Service Commander as per sections 245 and 257 of the Kenya Defense Forces Act.
  5. According to the Kenya Defense Forces Act, a person deserted if that person was absent from duty without leave for a continuous period of more than 90 days. Therefore, the offence of desertion crystallized after the expiry of 90 days and could not be said to be continuous.
  6. Active service was defined as a unit engaged in operations against an enemy. Furthermore, an enemy was defined as any person or enemy committing external aggression against Kenya. In the charge sheet, there was no reference to an operation titled ‘Operation Linda Mpaka’ and the identity of the targeted enemy in 2007 was never disclosed. The charge sheet failed to disclose the particulars of desertion. Hence, the charges facing the appellants did not contain sufficient details to enable them to answer to the charges.
  7. The Kenya Defense Forces undertook actions to advance the appellants process of being discharged from the defense forces. The actions that were undertaken were not a reflection of the fact that the force was facing aggression from an enemy. Therefore, the respondents failed to prove beyond reasonable doubt that the appellants were on active service when they left the defense forces.
  8. The existence of the Court Martial was crucial for discipline and efficiency in defence forces. The role of judge advocates was stated clearly in the Kenya Defense Forces Act and it was not peripheral. They advised the court in matters of law and after submissions by all parties, they summed up the case. The summing up brought out issues in controversy and law for determination by court, whose determination was by voting. That procedure was in line with ensuring expeditious disposal of cases.
  9. From the blanket sentence given, it was clear that mitigating factors were not considered and principles of sentencing were not adhered to. The wisdom of ensuring that discipline was enforced and would be deserters were deterred was well understood. However, a blanket life sentence was uncalled for bearing in mind circumstances surrounding the desertion.
  10. The offence of desertion while on active service was not proven beyond reasonable doubt. However, the offence of absence without leave under section 75 of the Kenya Defense Forces Act was proved. That offence carried a sentence of two years in prison.
  11. The period the appellants were in custody both for purposes of remand and the life sentence was approximately one and a half years. That period was enough punishment. The appellants had served their term.
Appeal allowed. Appellants set at liberty.

Kenya Law
Case Updates Issue 030/2015
Case Summaries

CIVIL PRACTICE AND PROCEDURE The right to be heard before being condemned as a perpetrator of sexual harassment under the Employment Act

J. M. K -vs- M. W. M & M. F. S
Court of Appeal at Mombasa
Civil Appeal No. 15 of 2015
Makhandia, Ouko & M'inoti, JJ. A
July 17, 2015
Reported by Njeri Githang’a & Elizabeth Apondi.

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Brief Facts:
The appellant was aggrieved by the ruling and order of the Industrial Court at Mombasa in which the judge declined to review and set aside his judgment dated May 30, 2014 so as to afford the appellant an opportunity to be heard. By that judgment, the judge held that the appellant, who was not a party to Industrial Court Cause in which the judgment was entered, had sexually harassed the 1st respondent. Accordingly he awarded her, as against her employer at the material time, the 2nd respondent, Kshs. 500,000 as general damages. The appellant however was not made a party to the suit because the first respondent claimed that the sexual harassment, which he was accused of under section 6 of the Employment Act, was a strict liability offence against the employer and further that the 1st respondent was seeking damages against the employer rather than the appellant and lastly that it was the expectation of the 1st respondent and any reasonable person, that the appellant would be called by the 2nd respondent as a witness. The appellant was however never called as a witness and he contended that he never became aware of the allegations of sexual harassment made against him by the 1st respondent until6th June 2014 when the Daily Nation Newspaper prominently covered the judgment of the Industrial Court.

The appellant then filed an application in the Industrial Court seeking to be joined as a co-respondent in the claim, review and setting aside of the judgment of 30th May 2014 and an order for a fresh hearing of the suit, upon the appellant filing a response to the 1st respondent’s allegations of sexual harassment against him. The judge concluded that it was not necessary to join the appellant as a co-defendant in the suit because no orders were sought or made against him and that the decree passed by the court was capable of enforcement without his involvement hence the appeal.

The appellant contended that he had been condemned as a sexual harasser without an opportunity to be heard and further that his reputation and standing before his peers and the public had been destroyed. He further contended that the Industrial Court Act and the Industrial Court (Procedure) Rules, 2010 the court had broad and unrestricted power to review its rulings or judgments where injustice had been occasioned and that a court is never functus officio until it has pronounced itself on an application for review or stay of proceedings.

Issues:

  1. Whether the appellant ought to have been afforded an opportunity to be heard before he was condemned as a perpetrator of sexual harassment.
  2. Whether a person not a party to a suit who allegations has been made against ought to be enjoined as a party to a suit for a fair hearing to take place
  3. Whether the court had jurisdiction to enjoin the appellant as a party to the suit after judgment had been delivered.
  4. Whether the appellant who was not a party to the original suit could apply to court for an order for setting aside the judgment and review.

Civil Practice and Procedureparties to a suit- joinder of parties – whether a person can be enjoined as a party to a suit after judgment has been delivered

Civil Practice and Procedure -remedies-review and setting aside of judgment-who can apply-can a person not a party to the original suit apply for review and setting aside of a judgment-under what circumstances can such an application be allowed

Constitutional Law–right to fair hearing-right to be heard-principles of natural justice-whether a person not a party to a suit who allegations has been made against ought to be enjoined as a party to a suit for a fair hearing to take place- Constitution of Kenya 2010, article 50(1) Read More...

Constitution of Kenya, 2010
Article 50(1)
Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

Civil Procedure Rules, 2010
Order 1 Rule 10 (2)
The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.

Industrial Court Act, 2011
Section 16
The Court shall have power to review its judgments, awards, orders or decrees in accordance with the Rules.

Industrial Court (Procedure) Rules, 2010
Rule 32 (1)
1) A person who is aggrieved by a decree or an order of the Court may apply for a review of the award, judgment or ruling—

(a) if there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; or
(b) on account of some mistake or error apparent on the face of the record; or
(c) on account of the award, judgment or ruling being in breach of any written law; or
(d) if the award, the judgment or ruling requires clarification; or
(e) for any other sufficient reasons.

Held:

  1. Order 1 Rule 10 (2) of the Civil Procedure Rules empowered the court, at any stage of the proceedings, upon application by either party or suomotu, to order the name of a person who ought to have been joined or whose presence before the court was necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party. The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.
  2. The guiding principle in amendment of pleadings and joinder of parties was that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, would not result in prejudice or injustice to the other party which could not properly be compensated for in costs.
  3. Order 1 Rule (10)(2) Civil Procedure Rules contemplated an application for amendment or joinder of parties where proceedings were still pending before the Court.The joinder could be done either before, during the trial or after judgment where damages were yet to be assessed; it was only when a suit or proceeding had been finally disposed of and there was nothing more to be done that the rule became inapplicable; and that a party could even be added at the appellate stage.
  4. There were no pending proceedings when the appellant applied to be enjoined as a party to the suit. The appellant was therefore effectively applying for review and setting aside of the judgment of the Industrial Court and an order for de novo hearing of the suit, which would afford him an opportunity to be heard.
  5. The Court had jurisdiction to review and set aside its judgment under section 16 of the Industrial Court Act, 2011 and rule 32(1) of the Industrial Court (Procedure) Rules. Under section 16 as read with rule 32, the Industrial Court was empowered to exercise its review jurisdiction on far much broader grounds that the High Court was allowed under Order 45 of the Civil Procedure Rules. Under rule 36 (6), if the court allowed an application for review, it was empowered to review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again.
  6. Under Industrial Court (Procedure) Rules a person who was directly affected by an appeal or claim to which the Court had taken cognizance was deemed to be a party. Such a person could also be an aggrieved party for purposes of applying for review of a decree or order of the court.
  7. The appellant was entitled to contend, as he did, that the judgment of the Industrial Court which directly affected him, was in breach, not only of the law, but also of the Constitution in so far as it condemned him without an opportunity to be heard and in breach of the right to a fair hearing guaranteed by article 50(1). That in itself constituted sufficient reason for review of the judgment.
  8. The principle of natural justice applied where ordinary people reasonably expected those making decisions which would affect others to act fairly.A decision in breach of the rules of natural justice was not cured by holding that the decision would otherwise have been right. If the principle of natural justice was violated, it mattered not that the same decision would have been arrived at.
  9. The right to be heard was a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.
  10. While the record indicated that the 2nd respondent had applied for adjournment of the hearing to call its witness, there was nothing on record to suggest that the intended witness was the appellant. In view of the seriousness of the allegations that were made against the appellant, the appellant deserved an opportunity to be heard of his own right, not merely as a witness of any other party.
  11. The contention that the appellant must have known of the sexual harassment allegations made against him, was based on conjecture rather than evidence. The letter from chairman of the 2nd respondents Board of Directors accepting the appellant’s resignation was clear that the appellant would not be required to attend meetings of the Board, where presumably he may have had the opportunity to know the 1st respondent’s allegations against him.
  12. If a party must be heard before he was condemned to pay half a million shillings, such party was equally entitled to be heard before his reputation was sullied.
  13. Democracy had always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It was that good repute which enhanced an individual’s sense of worth and value. False allegations could so very quickly and completely destroy a good reputation. A reputation tarnished by libel could seldom regain its former lustre. A democratic society, therefore, had an interest in ensuring that its members can enjoy and protect their good reputation so long as it was merited.
  14. Reputation was an integral and important part of the dignity of the individual. It also formed the basis of many decisions in a democratic society, which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation could be damaged forever, especially if there was no opportunity to vindicate one’s reputation.
  15. The appellant ought to have been afforded an opportunity to be heard before he was condemned as a perpetrator of sexual harassment and the industrial court ought to have reviewed and set aside its judgment dated 30th May 2014 to afford the appellant an opportunity to be heard.

Appeal allowed , ruling and order of the Industrial Court dismissing appellants application set aside and substituted with an order allowing the appellants application. Each party to bear its own costs

EMPLOYMENT LAW Injunction granted to protect the legitimate expectation of employees under contract terms to be hired under permanent and pensionable terms.

Kenya National Union of Nurses v County Government of Mombasa & 2 others
ELRC Cause No 244 of 2015
Employment & Labour Relations Court of Kenya
O N Makau, J
July 31, 2015
Reported by Beryl A Ikamari

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Brief facts:
The Claimant was a trade union which was representing some of its members (grievants) who were employed by the County Government of Mombasa. They had been hired under a 3 year employment contract under the Economic Stimulus Program (ESP). With devolution, health services became a function of the County Government and were transferred to counties from the National Government.
The County Government of Mombasa had been advised to continue paying the ESP staff and to absorb them into their payroll. When the County Government of Mombasa and the Mombasa County Public Service Board, advertised vacancies for the recruitment of 50 nurses on permanent and pensionable terms, the ESP staff were aggrieved. They complained that they were to be given priority over any new recruits. In response, the County Government and its Public Service Board explained that the ESP members of staff were free to apply for the posts on a competitive basis.
The Claimant sought conservatory orders to restrain the Respondents from recruiting new nurses before absorbing all the grievants into the county payroll on permanent and pensionable basis.

Issue:

  1. Whether under the circumstances an injunction would be granted to protect the expectation of the ESP staff to be hired on permanent and pensionable terms.

Employment Law-unfair labour practices-legitimate expectation to be hired on permanent and pensionable terms- employees hired under a 3 year contract who had received assurances of employment on permanent and pensionable-whether an injunction would be granted to protect such an expectation.

Civil Practice and Procedure-injunctions-circumstances in which an injunction would be granted-whether failure to fulfil expectations would suffice.Read More...

Held:

  1. The prerequisites for the grant of an interlocutory injunction were that the Applicant would have to show that there was a prima facie case with a likelihood of success and that the Applicant would suffer irreparable harm if the injunction was not granted. However, if the Court was in doubt, the application for an injunction would be decided on a balance of probabilities.
  2. In an application for an injunction an Applicant would have to show that there was a genuine and arguable case and also that there was a legal right which had been infringed or was about to be infringed by the Respondent. The arguable case would constitute the prima facie case.
  3. The grievants were employed under the Economic Stimulus Program on 3 year employment contracts. Their contracts had been extended temporarily pending their absorption at the County Government of Mombasa on a permanent and pensionable basis. Hence, the grievants had a genuine and reasonable expectation of employment on such permanent terms.
  4. The Claimant had demonstrated that there was an arguable case in which the grievants' right to fair labour practice and good terms and conditions of service were about to be infringed by the intended recruitment of 50 new nurses on a permanent basis. The intended recruitment of new nurses could mean that the grievants employment contracts would be terminated or would not be renewed.
  5. The grievants contracts were about to expire or had expired and those contracts did not provide for separation gratuities. There was a risk that they would lose their expectation to serve under the Mombasa County Public Service Board. Therefore, the grievants were likely to suffer injury which would not be adequately compensated by damages if an injunction was not granted.
  6. If the grievants lost their jobs before the completion of the trial, the suit would be rendered moot and nugatory in the event that the grievants succeed. Hence, the balance of convenience favoured the grievants who were already employed under the Economic Stimulus Program.

Application allowed. (The 1st and 2nd Respondents were restrained and prohibited from hiring any other nurses on permanent and pensionable terms before first absorbing the grievants on such terms pending the hearing and determination of the suit.)

CRIMINAL PRACTICE AND PROCEDURE

Determination of mandatory sentencing for anti-corruption and economic crimes

John Njenga Kinuthia v Republic
Criminal appeal No 343 of 2011
High court at Nairobi
G W Ngenye – Macharia, J
July 23, 2015
Reported by Teddy Musiga & Daniel Hadoto

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Brief facts:
The appellant was charged with and found guilty on three counts of soliciting for a benefit contrary to section 39(3) (a) as read with section 48(1) of Anti-Corruption and Economic Crimes Act (ACECA). He was convicted of all the three counts as charged. With respect to count 3, the appellant solicited for a benefit and subsequently received some money which was used as an entrapment to arrest him. For that he was sentenced to pay a fine of Ksh. 100,000/= and in default to serve twelve months imprisonment. In addition and pursuant to the provisions of section 48(1) (b) of ACECA, he was sentenced to the mandatory sentence of Ksh. 220,000/= and in default to serve twelve months imprisonment. He thus appealed both the conviction and the sentence.

Issue:

  1. What are the criteria for determining a mandatory sentence for anti-corruption and economic crimes?

Criminal Practice and Procedure – sentencing – principles of sentencing - mandatory sentencing – scope of the court in sentencing - criteria for determining mandatory sentencing – validity of the mandatory sentence imposed in an anti-corruption and economic crime - claim where public officer solicited for a benefit as an inducement to release the renewal of leasehold – claim where a public officer corruptly received a benefit as an inducement to release the renewal of leasehold Anti-Corruption & Economic Crimes Act, sections 39(1) (3) (a); section 48 (c)

Criminal Practice and Procedure – Anti Corruption & Economic Crimes – soliciting for a benefit – claim where public officer solicited for a benefit as an inducement to release the renewal of leasehold – claim where a public officer corruptly received a benefit as an inducement to release the renewal of leasehold – Anti Corruption & Economic Crimes Act, sections 39(1) (3) (a); section 48 (c) Read More...

Held:

  1. According to section 2 of the Anti-Corruption and Economic Crimes Act (now repealed), , a public officer was an employee or member of a public body, including one that was unpaid, part-time or temporary.
  2. A public body included the Government, the National Assembly or the Parliamentary Service, a local authority, any corporation, council, board, committee or other body which had power to act under and for the purposes of any written law relating to local government, public health or undertakings of public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law; or a corporation, the whole or a controlling majority of the shares of which are owned by a person or entity that is a public body.
  3. Section 39(3) (a) of the Anti-Corruption and Economic Crimes Act (ACECA) provided that a person committed an offence if the person corruptly received or solicited or corruptly agreed to receive or solicit a benefit to which that section applied. The said section 39 applied to the conduct of an agent in relation to the affairs or business of the agent’s principal. In the instant case, the Appellant had represented himself as capable of assisting the complainants in the renewal of lease, a service offered by the City Council of Nairobi. He corruptly solicited for a benefit on the promise of facilitating a service offered by the City Council of Nairobi.
  4. The prescribed penalty prescribed by section 48 of ACECA was a fine not exceeding one million shillings or imprisonment for a term not exceeding ten years, or to both; and an additional mandatory fine if, as a result of the conduct that constituted that offence, the person received a quantifiable benefit or any other person suffered quantifiable loss. The determination of the mandatory sentence was guided by the amount of benefit received and or loss suffered as a result of the guilty person.
  5. The appellant solicited for a benefit and subsequently received some money which was used as an entrapment to arrest him. Thereafter, that amount was recovered in full by the Commission officials. That amount of money that was used as an entrapment and eventually recovered did not amount to actual quantifiable benefit made or loss incurred.
  6. The appellant caused the complainants to pay Ksh. 150,000/= as the application fee while in fact the legally chargeable fee was Ksh. 15,000/=. The said money was deposited into his account. That showed that the appellant illegally benefited himself by making a misrepresentation to the complainants. However, that was not the subject of any of the charges against the accused and could not therefore be part of the conviction.
  7. The conduct of the Appellant met the elements of the offence as prescribed under Section 39. Even though the money had been recovered, the appellant, nevertheless, had corruptly received a benefit, in furtherance to his earlier soliciting for the money. Therefore, the conviction of the appellant on all counts as charged had to be upheld.
  8. The determination of the mandatory sentence was guided by the amount of benefit that had been received and/or loss that had been suffered as a result of the conduct of the guilty person.
  9. Sentencing was an exercise of judicial discretion and appellate courts would not interfere with a trial courts finding unless it was found that the court had acted on a wrong principle of the law or had considered irrelevant factors or the sentence that had been meted was excessive considering the circumstances of the case.
  10. The sentences ought to have been prescribed to run consecutively.

The mandatory additional sentence prescribed under count III under Section 48(1) was not appropriate in this case. Infact no money under that count was lost. It was money used for a trap and it was recovered.
The Appellant is entitled to claim a refund of Ksh. 220,000/= if any money had been paid.

CRIMINAL PROCEDURE AND PRACTICE Rape is not a cognate offence to defilement

David Mwangi Njoroge v Republic
High Court of Kenya at Nairobi
Criminal Appeal No. 193 of 2013
G.W. Ngenye Macharia
July 21, 2015
Reported by Njeri Githang’a &Elizabeth Apondi

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Brief facts:
The appellant was in the main count charged with the defilement of a child contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No.3 of 2006. In the alternative he was charged with Indecent Act contrary to Section 6(a) of the Sexual Offences Act No.3 of 2006. The complainant in question was stated to be 17 years of age at the time the offence was committed. The trial court found the appellant guilty on the main count and convicted him accordingly observing that the appellant had been wrongly charged under section 8(2) as opposed to section 8(4) of the Sexual Offences Actsince the complainant was aged 17 years. Court invoked section 186 of the Criminal Procedure Code in order to apply section 8(4) of the Sexual Offences Act in sentencing. The appellant was accordingly sentenced to serve 15 years imprisonment.
The appellant appealed on grounds that the complainant was over 18 years at the time of the commission of the offence, that the charge sheet was incurably defective, that the prosecution’s evidence was contradictory in material facts and that the P3 form which was the Medical Examination Report and the basis on which the material evidence was given was invalid.

The respondent conceded to the error in the charge sheet but added that the error did not prejudice the appellant or negate the evidence on record that the appellant sexually assaulted the complainant. The respondent further submitted that the omission by the trial magistrate to observe that the complainant was not a minor was curable under section 382 of the Criminal Procedure Codeand urged the court to exercise its powers under section 354(a) (ii) and 186 of the Criminal Procedure Code and substitute the trial court’s finding and make an order that the appellant was guilty for the offence of rape as opposed to defilement and convict him accordingly. The respondent further submitted that the complainant was above 18 years but since she was mentally challenged, she was not capable of giving consent to having sexual intercourse with the appellant. Furthermore, the complainant properly identified the appellant as the assailant and her testimony was corroborated by that of PW2 and 3. In addition, the baby conceived as a result of the offence was proved to have been sired by the appellant by way of a D.N.A. test.

Issues:

  1. Whether a charge sheet stating the offence of defilement instead of rape was defective.
  2. Whether the appellant not having been charged with the proper offence negated the trial
  3. Whether rape was a cognate offence to that of defilement.
  4. Circumstances under which an accused person may be convicted of a minor offence although he was not charged with it

Criminal Practice and Procedure- cognate offences-sexual offences-rape and defilement-whether rape was a cognate offence to defilement- Criminal Procedure Code, sections 179 and 186
Criminal law-rape-elements of rape-where the complainant was allegedly mentally challenged-need for proof that the complainant did not consent to the commission of the act-Sexual Offences Act sections 43, 44 & 45
Criminal Practice and Procedure- charges-defective charge sheet- where the charge was defilement while the victim was above 18 years - whether a charge sheet stating the offence of defilement instead of rape was defective-whether such a defect could be cured under section 179 and 382 of the Criminal Procedure Code-Criminal Procedure Code sections179 and 382

Words and phrases-cognate offence-Definitions -a lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category- Black’s Law Dictionary 9th Edition page 1186- Read More...

Criminal Procedure Code
Section 179

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but he remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”

Section 186

When a person is charged with the defilement of a girl under the age of fourteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.

Section 191

The provisions of Sections 179 to 190, both inclusive, shall be construed as in addition to, and not in derogation of, the provisions of any other Act and the other provisions of this Code, and the provisions of Sections s180 to 190, both inclusive, shall be construed as being without prejudice to the generality of the provisions of Section 179.

Section 382

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

Sexual Offences Act No. 3 of 2006
Section 2

act which causes penetration means an act contemplated under this Act

Section 3

1) A person commits the offence termed rape if—
(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(b) the other person does not consent to the penetration; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.
(2) In this section the term “intentionally and unlawfully” has the meaning assigned to it in section 43 of this Act.
(3)
A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

Section 8

(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if—
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
(7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children’s Act (Cap. 141).
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.

Section 43(1) & (4)(e)

(1) An act is intentional and unlawful if it is committed—
(a) in any coercive circumstance;
(b) under false pretences or by fraudulent means; or
(c) in respect of a person who is incapable of appreciating the nature of an act which causes the offence.
(4) The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act—
(e) mentally impaired;

Section 44

(1) If in proceedings for an offence under this Act, it is proved

(a) That any of the circumstances specified in subsection (2) existed; and
(b) That the accused person knew that those circumstances existed.
The complainant is to be taken not to have consented to the act unless sufficient evidence is adduced to raise an issue as to whether he or she consented, and that the accused is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he or she reasonably believed it.

(2) The circumstances are that:-

(a) any person was, at the time of the offence or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) any person was, at the time of the offence or immediately before it began, causing the complaint to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the accused was not, unlawfully detained at the time of the commission of the act;
(d) the complainant was asleep or otherwise unconscious at the time of the commission of the act;
(e) because of the complainant’s disability, the complainant would not have been able at the time of the commission of the act to communicate to the accused whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the commission of the act.

(3) In subsection (2)(a) and (b), the reference to the time immediately before the act is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.

Section 45

(1) If in proceedings under this Act it is proved that the accused person committed any offence and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—

(a) that the complainant did not consent to the commission of that act; and
(b) that the accused person did not believe that the complainant consented to the act being complained of.

(2) The circumstances are that—

(a) the accused person intentionally deceived the complainant as to the nature or purpose of the act complained of;
(b) the accused person intentionally induced the complainant to consent to the act complained of by impersonating a person known personally to the complainant.

Held:

  1. The appellant ought to have been charged under section 8(4) of the Sexual Offences Act given that the charge sheet indicated that the complainant was aged 17 years. In an attempt to cure this defect, the trial magistrate applied section 186 of the Criminal Procedure Code in order to substitute section 8(2) with section 8(4) for purposes of sentencing. However, section 186 of the Criminal Procedure Code was applicable where the offence in question was defilement of a girl under the age of 14 years.
  2. The trial court having found that there was sufficient evidence to found a conviction for the main charge ought to have made an observation that the error or omission in the charge sheet was curable under section 382 of the Criminal Procedure Code and had the court found that the evidence adduced proved an offence other than that the appellant was charged with, would have applied Section 179 of the Criminal Procedure Code. That section provided that an accused person can be convicted for an offence other than the one he was charged with if the evidence proved that other offence.
  3. The offence was committed in the year 2012 and the complainant was born on 18th July, 1994, she was therefore 18 years at the time of the commission of the offence. The evidence disqualified the offence of defilement and instead the appellant ought to have been charged with the offence of rape under section 3 of the Sexual Offences Act.
  4. Section 191 properly applied meant that where the offence in question was not provided for in the specific provisions, nothing prohibited the court from invoking sections 179 being the general provision.
  5. Apart from recognizing that section 179 sets out the principle of law applicable in a trial with respect to conviction for offences other than those charged, and that the general principle shall apply as such notwithstanding that sections 180 to 190 dealt with special cases in a trial, section 179 of the Criminal Procedure Code could not be in derogation of the appellate powers of the High Court contained in section 354(3) (a) of the same code.
  6. The issue of substituting an offence with the one for which the evidence was established was not an obvious case. The offence substituted must be cognate and minor to the offence that an accused was initially charged with.
  7. All the provisions of the Criminal Procedure Code which were under the heading:-“Convictions for Offences Other than Those Charged” and beginning with Section 179 up to Section 190 dealt with situations in which a court was entitled to convict on a minor and cognate offence where a person was charged with a more serious offence. Thus it was permissible to convict a person charged with capital robbery under Section 296(2) of the Penal Code for the offence of simple robbery contrary to Section 296(1) of the Code.
  8. It was also permissible to convict a person charged with murder under Section 203 of the Penal Code with manslaughter under Section 202 as read with Section 205 of the Penal Code. That is because the offence of manslaughter, for instance, is minor and cognate to that of murder. But where there is no charge of murder at all, and the only charge available on the record is that of manslaughter, it would be courageous for a trial court to convert that charge in to murder simply because the evidence on record proves murder.
  9. The prosecution ought to have warned itself that the evidence on record did not support the charge sheet and ought to have substituted the same under Section 214 of the Criminal Procedure Code so as to reflect the proper offence. This was not done which meant that from the outset there was a defect in the trial. The defect could only have been cured by the application of section 179 of the Criminal Procedure Code which applied only when the evidence on record established a minor offence than the one the accused person was charged with. Section 191 outlines the directions for application of Section 179 to 190 of the Criminal Procedure Code.
  10. For the offence of defilement to be complete the element of penetration as defined by section 2 of the Sexual Offences Act must be complete and there must be proof of the age the complainant as under section 8. The penalties meted against an offender depended on the age of the complainant.
  11. Rape was defined under Section 3 of Sexual Offences Act and had the following elements:-
    1. The intentional and unlawful penetration of the genital organ of a person by another,
    2. absence of consent and
    3. where consent was obtained by force or by means of threat or by intimidation of any kind.
  12. Under section 42 of the Sexual Offences Act consent was obtained if the person agreed by choice and had the freedom and capacity to make that choice. Unlike under the offence of rape, consent was not a major element under the offence of defilement.
  13. Section 43 of the Sexual Offences Act read in isolation implied that a person who was mentally challenged could not consent to appreciate the nature of an act that causes an offence under the act but section 44 set out instances where court could make evidential presumptions about consent to reach a finding that the complainant did not consent to a sexual act.
  14. Under section 45 of the Sexual Offences Act, it must be determined whether there was evidence to rebut the presumption of consent. The fact of the complainant being mentally impaired was not conclusive proof of absence of consent, rather, it was a rebuttable presumption which could be dislodged by production of evidence.
  15. Even though the teacher and mother of the complainant testified as to her mental incapacity and produced a letter from the ministry of Education referring her to a particular school as a result of her being mentally incapacitated, the fact of the complainant being mentally impaired was not conclusively established as there was no medical record to confirm her actual mental inability and so her incapacity to consent to a sexual act. As such the absence of consent being a rebuttal presumption which could be dislodged by production of sufficient evidence in that respect was not demonstrated.
  16. The appellant ought to be given an opportunity to rebut the evidential presumption under Section 45. That opportunity did not arise throughout the trial as he was tried and convicted for the offence of defilement.
  17. 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 insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction was vitiated by a mistake of the trial court for which the prosecution was not to blame, it did not necessarily follow that a retrial should be ordered.
  18. Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice required it.
  19. The suggestion by the respondent to substitute the charge of defilement with that of rape, in light of the fact of the mental incapacity of the complainant, lacked legal basis and went against the duty of the court to uphold the right to a fair trial.
  20. Section 382 of the Criminal Procedure Code could not suffice to cure the defect in the charges in this case. The omission had the effect of occasioning a failure to justice and the defect in the mistrial was to be corrected by way of a retrial.

Conviction quashed. Order of the jail term of 15 years set aside and substituted with an order for retrial

LAND LAW The National Housing corporation is expected to run its affairs on the principles of modern business and thus has power to review and increase the rent of its tenants.

Constitutional petition No. 7 of 2015
High court at Mombasa
M J Anyara Emukule, J
July 17, 2015
Reported by Teddy Musiga & Daniel Hadoto

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Brief facts:
The petitioners leased houses in the changamwe residential estate from National Housing Corporation (NHC). Under the lease agreement (clause 22) the corporation reserved the right to review the rent payable every year or after such intervals as it deemed appropriate.
From 1988 until 12th September, 2005 NHC had been increasing the rent gradually. The Petitioners refused to pay the new rent and filed a suit to challenge the increment and distress for rent levied by the First Respondent at the time; arguing that, the distress for rent was unauthorized since no notice of intention to increase rent had been issued to them and that the increment was unlawful and against public policy. The suit was heard and determined in favour of the defendants.
The National Housing Corporation issued Rent Demand Notices to the tenants with arrears back-dated which had been earlier restrained by the court. Distress proclamation followed. Dissatisfied with that outcome, the plaintiffs filed two separate appeals. The first appeal was found to be time barred, and the second one was declared res judicata. Thereafter, the respondents evicted the petitioners from their houses endering them homeless and destitute. The petitioners thus filed the instant suit seeking to restrain the respondents from evicting them or interfering with their occupation of the premises.

Issues:

  1. What is the scope of the National Housing Corporation in the provision of affordable housing?
  2. Whether there exist circumstances in which distress for rent by a land lord can be deemed to be forcible eviction.
  3. Whether the National Housing Corporation had properly exercised its power to review and increase rent.
  4. Whether the national housing corporation had properly exercised it’s remedy of distress for rent.

Land Law - Land lord & tenant – tenancy relationship - distress for rent - difference between distressing for rent and forceful eviction – whether there exist circumstances in which distress for rent by a land lord can be deemed to be forcible eviction – whether the National Housing Corporation being a public body mandated to implement government policies with regard to housing can levy distress for rent – Housing Act, section 3(1) (4) Read More...

Held:

  1. Section 3(1) of the Housing Act established the National Housing Corporation as body corporate. Section 3(4) thereof gave the Corporation power to enter into contracts, to hold and dispose of property both movable and immovable, and to sue and be sued in its corporate name.
  2. The Corporation though State owned, was expected to run its affairs on the principles of modern business, to make investments and generate returns. The First Respondent's rental houses were designed to generate revenue for the construction of more houses.
  3. There was nothing in the Act that required the National housing corporation to provide social/ charitable public facilities. To have had them step out into the role of providing free housing would have been without basis and ultra vires their statutory mandate. They had adopted a policy of providing affordable housing and in light of that policy, the rent charged for their houses was lower than the market rate.
  4. The relationship between the parties was purely contractual. The Petitioners had not pleaded or proved that there had been any fraud, coercion or undue influence in the course of the contract.
  5. The First Respondent although a State Corporation, was not under obligation to consult with its tenants before reviewing its rent. That was not what was envisaged by article 10 of the Constitution as the review of rent did not fit in the description of functions under article 10 of the Constitution of Kenya, 2010.
  6. The Petitioners' failure to pay rent translated in reduced revenue available for the First Respondent to construct more houses for the benefit of the greater public who were in need of affordable housing.
  7. The landlord had effected a rent increase, notified the tenants and had given notice of demand before engaging the auctioneer to distress for rent. The Petitioners had had opportunity to get the process of rent increment and distress for rent examined by the court in previous civil proceedings.
  8. The instant case was distinguished from the Satrose Ayuma case. This is a case of a landlord distressing for rent, whereas in the Satrose Ayuma case, the landlord was forcefully evicting its tenants without notice and was withholding essential social amenities such as water and sanitation as a means of forcing compliance, in violation of the tenants' human rights. The eviction carried out by the First Respondent in the circumstances did not fall into the category of forceful eviction cases.
  9. The Petitioners had failed to demonstrate that there existed a constitutional issue over and above the contractual issue herein.

Petition dismissed
Respondent only to bear costs