Recusal of a Supreme Court Judge who is a member of the Judicial Service Commission in a case where the Judicial Service Commission is a party
Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR
Petition No. 34 of 2014
Supreme Court of Kenya
D K Maraga, CJ; P M Mwilu, DCJ; M K Ibrahim, J B Ojwang, & N Njoki, SCJJ
July 3, 2018
Reported by Kakai Toili
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Judicial Officer - judge – recusal of a judge of the Supreme Court – application for the recusal of a judge of the Supreme Court – grounds for recusal – membership to the Judicial Service Commission – where the Judicial Service Commission was a party to a case - whether a judge of the Supreme Court who was a member of the Judicial Service Commission had to recuse himself or herself from a case in which the Judicial Service Commission was a party – Constitution of Kenya, 2010, article 163 & 171(2): Public Officers Ethics Act, section 10 (1)

Judicial Officer - judge – doctrine of the duty of a judge to sit - what was the scope of the doctrine of the duty of a judge to sit

Judicial Officer - judge – recusal of a judge – application for recusal of a judge – what was the purpose of an application for the recusal of a judge and whether an application for recusal of a Supreme Court Judge could be determined in a similar manner as that of a judge of other superior courts

Constitutional Law superior courts – Supreme Court – quorum of the Supreme Court – effect of lack of quorum - what was the effect of failure of the Supreme Court to determine a matter due to lack of quorum

Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to fair hearing - when balancing the rights of different claimants before a court over the same right - what parties were to be given priority in the enforcement of the right to fair hearing when balancing the rights of different claimants before a court over the same right - Constitution of Kenya, 2010, article 19 (3) (a) & 21 (1)

Judicial Officer judges – removal of judges from office - what was the procedure of removal of a judge from office - Constitution of Kenya, 2010, article 168

Brief Facts:

The Petitioner’s case had been referred to the Employment and Labour Relations Court, which upheld her claim that the 1st Respondent (JSC) had violated her fundamental rights and freedoms in removing her from office without a basis in law. The Court of Appeal reversed the decision of the Employment and Labour Relations Court leading to an appeal pending before the Court. The Petitioner prayed for judgment setting aside the Court of Appeal’s decision.
The JSC filed the instant Application seeking orders that the time-span for filing the Application be extended beyond the limit earlier prescribed, that most of the Court’s Judges, in the full seven-Judge bench of that Court recuse themselves from the hearing of the Petitioner’s Appeal and that the costs of the application be provided for.
The JSC proffered the following justifications for seeking the recusal of the Court’s Judges:

(a) Chief Justice as Chairperson of JSC and the Deputy Chief Justice as the Court’s representative in JSC, had been involved in JSC’s deliberations which JSC took the decision to file the instant Application
(b) Lady Justice Njoki had active pending litigation against the JSC
(c) Justice J.B. Ojwang had 3 pending disciplinary proceedings with the JSC.
(d) Justice Lenaola recused himself from hearing the appeal, having been a member of the JSC at the material time that the Petitioner’s case was before the JSC.

Issues:

  1. Whether a judge of the Supreme Court who was a member of the Judicial Service Commission had to recuse himself or herself from a case in which the Judicial Service Commission was a party
  2. What was the scope of the doctrine of the duty of a judge to sit?
  3. What was the purpose of an application for the recusal of a judge?
  4. What was the effect of failure of the Supreme Court to determine a matter due to lack of quorum?
  5. What parties were to be given priority in the enforcement of the right to fair hearing when balancing the rights of different claimants before a court over the same right?
  6. Whether an application for recusal of a Supreme Court Judge could be determined in a similar manner as that of a judge of other superior courts.
  7. What was the procedure of removal of a judge from office?

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 22

1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Held:

  1. The Court had a special constitutional mandate which could not be delegated to any other forum in the entire governance set-up. The Court was guided by certain precious values, which provided the context within which it took ultimate responsibility for matters of dispute settlement in accordance with the law. The instant matter was not one calling for the recusal of any Judge of the Court. Committed to the judges’ oaths of office, the Court would pronounce itself unbiased and ready and willing to own up to Kenya’s constitutional mandate of dispensing justice in matters falling within its jurisdiction.
  2. The concept of fundamental rights is a subject of constitutional safeguard and a core pillar upon which the Court’s mandate is founded. The rights in question were inherently and expressly attributed to citizens as the legatees of good governance and democratic process. On that account, all rational and tenable perception of the question of access to the judicial dispute-resolution process, had to be placed on balancing scale ensuring the entitlement of the citizen to justice, fair trial and constitutional safeguard. The cause of the individual who came knocking on the doors of the Judiciary was the very first consideration in determining whether or not a hearing fell due.
    Per M K Ibrahim, SCJ:
  3. The doctrine of necessity was more pronounced in the instant matter and it was amplified by the Constitution. The preamble to the Constitution was unequivocal that it was the People of Kenya who gave unto themselves the Constitution. They gave unto themselves the Constitution in its entirety. At article 163 of the Constitution, the people of Kenya established the Court, consisting of 7 justices (the Chief Justice, the Deputy Chief Justice, and five other Judges). The Constitution also established the Judicial Service Commission (JSC), with its membership composition clearly stipulated under article 171 (2) of the Constitution. A scrutiny of that membership clearly showed that at any given time 2 members of the Court had to be JSC Commissioners.
  4. Among the Court’s Judges, the Court would or could have former JSC Commissioners. It could not therefore be stated in general terms that any Judge of the Court who sat in the JSC would, as a matter of cause, not adjudicate in a matter where the JSC was a party. Such a pronouncement would be a total mockery of the sovereign will of the people of Kenya who established the two institutions in the Constitution and willed that they carried out their various functions simultaneously.
  5. The doctrine of the duty of a judge to sit, though not profound in Kenya’s jurisdiction, every judge has a duty to sit in a matter which he duly should sit. Recusal should not be used to cripple a judge from sitting to hear a matter. That duty to sit was buttressed by the fact that every judge took an oath of office: to serve impartially and to protect, administer and defend the Constitution. The doctrine recognized that having taken the oath of office, a judge was capable of rising above any prejudices, save for those rare cases when he had to recuse himself. The doctrine also safeguarded the parties’ right to have their cases heard and determined before a court.
  6. There was a criticism of the doctrine of the duty of a judge to sit for being subject of abuse by judges, so as to sit in matters when it was blatantly clear that they were biased and ought not to have sat. However, where judiciously invoked, the doctrine was a key component of constitutionalism. All judges of the Court, members of the JSC or former members, had a duty to sit in the matter so as to affirm constitutionalism.
  7. Judges too, as individual persons, enjoyed all the rights in the Bill of Rights. They too enjoyed the protection provided by article 22 of the Constitution to approach the High Court where they felt their Rights had been violated. A person did not waive the protection of article 22(1) when he/she became a judge. Consequently, a judge who pursued his/her constitutional rights protected by the Bill of Rights could not have that used against him/her as a ground for recusal. Membership in the JSC by a judge in the Court or any other Court was a constitutional imperative and as such it could not be used without very good and valid reasons to exclude such a member of JSC from sitting in a matter where the JSC was involved.
  8. An application for recusal should not seek to affirm the decision of the court/tribunal whose decision was subject of appeal. An application for recusal was a shield to protect the applicant’s interest so that his/her matter was heard by an impartial court. It was not a sword to be wielded by an applicant to steal a match and deny a chance to the other party. Hence by praying that the effect of the Application will be the affirmation of the Court of Appeal decision, the Applicant sought to go beyond the genuine province of a recusal motion.
  9. The fact that 3 judges recused themselves from hearing the matter in Kalpana H. Rawal, Philip Tunoi and David A. Onyancha v Judicial Service Commission and the Judiciary, (2016) eKLR did not by itself affirm the decision of the Court of Appeal on the retirement age of judges appointed before the promulgation of the Constitution. That was clear and certain from the final orders of the Court in that matter. As the matter before the Court was an interlocutory application, the recusal and inability of the five-Bench to determine the applications meant that, de facto, the Court of Appeal judgment remained in force. The Applications in the Court were not spent or determined but remained in abeyance until another Bench was empaneled.

    Per Njoki Ndungu:

  10. Pursuant to article 25 (c) of the Constitution, the right to a fair trial was non-derogable. All persons who came to the Court were entitled to a fair hearing whether the matter instituted was criminal or civil in nature. The right to a fair trial set out in article 50 (1) and (2) of the Constitution were the same and were both non-derogable by the provisions of article 25 of the Constitution. As such, when an individual citizen petitioner rightly approached the Court, seeking to assert their constitutional rights, the Court would be hard-pressed to turn them away on the basis of claims of bias by a respondent State organ.
  11. There was a positive duty by the State to ensure that every Kenyan had the right to fair hearing which involved the right of appeal where conferred by the law or the Constitution. That obligation included the Judiciary’s own participation as a State organ. The obligation equally applied to the JSC that stemmed from article 21(1) of the Constitution. Article 19 (3) (a) of the Constitution was categorical that the rights and fundamental freedoms in the Bill of Rights belonged to each individual.
  12. In the course of enforcement of the right to fair hearing, when balancing the rights of different claimants before the Court over the same right and because of the personal nature of rights, priority had to be given to:
    1. The parties that were directly affected by the violation of that right
    2. Other parties to the suit that were indirectly affected, such as interested parties.
    3. The general public.
    4. The interests of the State.
    In the instant matter the Court ought to have regard to the right to fair hearing of the Petitioner first.
  13. JSC was a state organ which was defined in article 260 of the Constitution as a commission, office, agency or other body established under the Constitution. JSC was established under article 171 of the Constitution. It was also listed in Chapter 15 of the Constitution which pertained to commissions and independent offices. Under that chapter, pursuant to article 249 of the Constitution, JSC was supposed to protect the sovereignty of the people, secure the observance by all State organs of democratic values and principles and promote constitutionalism. It was unclear what prejudice JSC would suffer if the Court heard the instant matter. The Petitioner herself had not raised the issue of an impartial bench, bias or any prejudice that would arise if the bench as constituted sat on her matter. It therefore baffled the mind how JSC could claim bias in the face of an individual’s right to a fair hearing.
  14. JSC could not claim prejudice or bias when an individual citizen was seeking to exercise her constitutional right to be heard. That flew in the face of securing democratic values and principles and promoting constitutionalism. In addition, JSC had not sufficiently demonstrated the nexus between the interest and the resulting apprehension of bias. There was no nexus established between the facts of the relevant matter between the Court and the JSC and the instant matter. To find that membership of a judge in the JSC, automatically disqualified him or her on the basis of perceived bias from hearing and determining any matter relating to the JSC would be to stretch the perception of bias too far. That would inevitably mean that matters involving the JSC would, more often than not, be determined by the Court of Appeal as the final Court; an absurdity and outright contravention of the Constitution.
  15. A party was entitled to be heard by a Court before which he or she appeared even though it was perceived to be conflicted, if there was no other Court to which he or she could go. The doctrine of necessity and the duty to sit would have to apply.
  16. There was a presumption of impartiality of a judge. They would be able to disabuse themselves of any irrelevant personal beliefs or predispositions when hearing and determining matters. The role of a judge was to ensure that cases were determined in accordance with the Constitution and the law. An application for recusal of a Supreme Court Judge could not be determined in a similar manner as that of a judge of the other superior courts due to the special consideration that had to be given to its quorum. The Court was the final bastion in the architectural design of Kenya’s Constitution that protected and defended the rights of every citizen and enforced the obligations of the State towards them. Its intervention, when rightly invoked, as in the instant case ought to be available to the citizens of Kenya.
  17. The Court had previously dealt with matters in which the JSC had been a party and no issue of conflict of interest had arisen. The fact that the JSC did so in the instant case raised an eyebrow and might even be construed as cherry–picking an adjudication fora or forum shopping which the law frowned upon. Article 168 of the Constitution concerned removal of a judge from office. That removal could be initiated by the JSC on its own motion or upon petition by any person to the JSC. If satisfied that the petition was merited, the JSC sends the petition to the President. Within 14 days after receiving the Petition, the President had to suspend the judge from office acting in accordance with the recommendation of the JSC and appoint a tribunal.
  18. Article 168(8) of the Constitution allowed a judge who was aggrieved by a decision of the tribunal appointed by the President, to appeal against the tribunal’s decision to the Court within 10 days after the tribunal made its recommendations. The Court would not have to down its tools merely because the JSC could be a party to such cause. If the Court downed its tools in an article 168 (8) petition, merely because the JSC was a party to that suit, that would be tantamount to the Court abdicating its constitutional duty. It would be equivalent to violating both the Judicial Code of Conduct which revered the oath of office taken by judges and section 10(1) of the Public Officers Ethics Act which required judges of the superior courts as public officers to carry out their duties in accordance with the law.

Application dismissed

  1. Petitioner’s Appeal to be fixed for hearing on priority basis.
  2. Costs of the Application to abide the determination of the main cause.


Kenya Law
Case Updates Issue 036/2018
Case Summaries

CRIMINAL PROCEDURE Legal requirements relating to settlement, withdrawal or termination of a criminal case through an agreement between an Accused person and a Complainant.

Kelly Kases Bunjika v Director of Public Prosecutions & another
Criminal Miscellaneous Application No 79 of 2017
High Court at Kabarnet
Edward M Muriithi, J
July 26, 2018
Reported by Beryl A Ikamari

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Criminal Procedure-settlement, withdrawal or termination of a criminal case-withdrawal of a criminal case through an agreement between the Complainant and an Accused person-considerations of the Court in deciding on whether to approve such a withdrawal-whether it was necessary for the Director of Public Prosecutions to concur with an agreement between parties to withdraw a criminal case-Constitution of Kenya 2010, article 157(11); Criminal Procedure Code (Cap 75) section 204.
Constitutional Law-interpretation of constitutional provisions-Director of Public Prosecutions-role of the Director of Public Prosecutions in the settlement, withdrawal or termination of a criminal case-whether the DPP had concur with a proposed withdrawal of a criminal case-Constitution of Kenya 2010, article 157(11).

Brief facts:
The Applicant was on trial for the offence of robbery with violence in Eldama Ravine Principal Magistrate’s Court Criminal Case No. 53 of 2016. The Court found that the Applicant had a case to answer and the trial was at the defence stage. The Complainant made a request for the criminal case to be withdrawn but the Court declined to grant the request. The Applicant made an application for the Court to review the decision declining to grant the request for withdrawal. The Applicant wanted the decision reviewed and orders granting the request for the withdrawal of the decision to be issued.

Issues:

  1. Under what circumstances would the Court allow an Accused person and a Complainant to withdraw or discontinue criminal proceedings?
  2. What was the role of the DPP in a situation where an Accused person and a Complainant agreed to withdraw or discontinue criminal proceedings?Read More..

Held:

  1. A criminal case would be terminated by operation of the law where an Accused person died and there was no person to be tried, convicted and sentenced and where a Complainant failed to attend under section 202 of the Criminal Procedure Code. There were other ways through which a criminal charge could be terminated by an act of the parties and they included:-
    1. By reconciliation under section 176 of the Criminal Procedure Code;
    2. Withdrawal or discontinuance of the charge by the Complainant under section 204 of the Criminal Procedure Code;
    3. By the prosecutor under article 157(6)(c) of the Constitution and section 87 of the Criminal Procedure Code;
    4. Alternative dispute resolution agreement pursuant to article 159 (2) (c) of the Constitution.
  2. Section 176 of the Criminal Procedure Code allowed the Court to promote reconciliation, encourage and facilitate amicable dispute settlement on terms of payment of compensation or terms approved by the Court, in cases of common assault or offences of a personal or private nature not amounting to a felony and not aggravated in degree.
  3. Section 204 of the Criminal Procedure Code provided for withdrawal of the complaint by the Complainant. The Complainant could withdraw the complaint before the Court made its final orders in the matter and the Court had discretion to allow or reject the withdrawal when satisfied of the existence or otherwise of sufficient grounds permitting the withdrawal.
  4. Each case depended on its own circumstances and in withdrawal or termination of criminal cases, in terms of article 157(11) of the Constitution, the DPP was obliged to consider public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. The Accused or the Prosecutor who sought the withdrawal or termination of a criminal case had to demonstrate that the discontinuance (settlement, withdrawal or termination of the criminal case) was justifiable under the parameters of the considerations of public interest, interests of justice and the need to prevent abuse of the legal process.
  5. The case of Republic v PKM [2017] eKLR was distinguishable as a case which involved a matter of a personal nature arising from a matrimonial context. In that case, the court found that since there was a marriage and the offence was not so grave, the best that the court could do and that social justice demanded was to promote reconciliation for the sake of the unity of the family.
  6. Although the Court had power to allow alternative dispute resolution mechanisms, the concurrence of the DPP in addition to any agreement between the Complainant and the Accused was necessary. It was the DPP's responsibility under article 157 of the Constitution to consider public interest in making such a decision.
  7. The DPP was the constitutional custodian, enforcer and defender of public interest in criminal justice. That entailed the due administration of justice so that the offender would get punished or otherwise dealt with, as appropriate, for deterrence and rehabilitation, the victim would be assuaged and compensated as appropriate, and the society would benefit from prevention of crime. In addition, the DPP ensured that the criminal justice system was not abused, in that, it was not used to persecute the innocent, achieve collateral civil purpose or avoid due punishment for crime.
  8. The Accused and the Complainant agreed to withdraw the charge but the DPP did not agree to that withdrawal. It was demonstrated that the Complainant was not the owner of the motor vehicle which was the subject of the robbery with violence charge and that there were other entities that could also be complainants. It was not shown that the DPP did not comply with article 157(11) of the Constitution in refusing to agree to the withdrawal of the charge.
  9. The Court did not approve the proposed withdrawal of the robbery with violence charge for the following reasons:-
    1. The offence of robbery with violence using firearms was of a serious nature and was prevalent in the area. It required a full trial and an appropriate punishment for deterrence if there was evidence to sustain the charge.
    2. Alternative dispute resolution mechanisms provided for in article 159 (2) (c) had to be supportive and not destructive of the ability of the DPP to conduct his primary role as the executor of the State’s powers of prosecution under article 157 (6) of the Constitution.
    3. The approval of the DPP who had the constitutional mandate and duty to consider under article 157 (11), the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process had not been obtained.
    4. It was a public interest consideration within the meaning of article 157 (11) of the Constitution that offenders in serious crimes should be suitably prosecuted and punished if found guilty.
    5. Improper termination of serious criminal charges would demoralize police and prosecutorial agencies to the detriment of the country’s ability to combat and deter such crimes.
    6. The Complainant as the driver, and not the owner, of the motor vehicle-the property subject of the robbery was not in a fitting position to compromise a criminal charge relating to the said property. The interests of justice would require concurrence of the victim and the true owner of the property subject of the robbery charge.

Application dismissed.

CRIMINAL LAW Availability of self-defence as a defence to murder where an Accused person mistakenly believed that he faced imminent danger

Ismail Hussein Ibrahim v Republic
Criminal Case No 4 of 2016
High Court at Kajiado
R Nyakundi, J
July 30, 2018
Reported by Beryl A Ikamari

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Criminal Law-murder-malice aforethought-proof of malice aforethought-whether the requisite criminal intent for the offence of murder was proved where an Accused person raised the defence of self-defence-Penal Code (Cap 63), sections 203 & 206.
Criminal Law-murder-defences to the offence of murder-self-defence-elements of self-defence-honest and reasonable belief that the Accused person faced imminent danger of bodiliy injury-where the belief that there was imminent danger was actually a mistaken belief-whether the defence of self-defence was available to the Accused under the circumstances-Penal Code (Cap 63), section 17 & 203.

Brief Facts:
On the night of August 20 & 21, 2015 various persons, including the Accused person, a police driver, were at Destiny Bar, located at Elpase Ngong in Kajiado North Sub-County. A disturbance involving a lady called Ann, PW2 and PW4, arose and the management resolved to have Ann leave the bar. As Ann was escorted out, PW1 noted the presence of a person wearing rasta whom she found suspicious and she informed the customers that such a person was at the bar's entrance. When the door was opened for customers to leave, a person with a firearm was heard asking customers to lie down and the Accused shot at the direction of the bar's entrance.
It turned out that the person who was shot was a police officer. On that night, police officers approached Destiny Bar as they heard some kind of disturbance at the bar.

Issues:

  1. Whether malice aforethought was proved where the defence of self-defence was raised by an Accused person against murder charges.
  2. What was the scope of the defence of self-defence under section 17 of the Penal Code.Read More...

Held:

  1. Article 50 (2) (a) of the Constitution provided for the presumption of innocence. Unless the contrary was proved beyond reasonable doubt an Accused person had the right to be presumed to be innocent. The standard of proof was not one of certainty or even proof beyond a shadow of doubt. Evidence which was otherwise forceful but left a remote possibility in favour of an Accused person, would be sufficient to sustain a conviction as the standard of proof was proof beyond reasonable doubt.
  2. The prosecution had the duty to prove all the ingredients of the offence beyond reasonable doubt but the Accused person had no burden to prove his innocence. There were a few statutory exceptions wherein an Accused person could be asked to give an explanation in rebuttal.
  3. Section 203 of the Penal Code which defined murder as the unlawful killing of a person or persons with malice aforethought. There were three ingredients of the offence of murder which were to be proved by the prosecution beyond reasonable doubt, namely;
    1. The death of the deceased and the cause of the death;
    2. That the Accused person committed the unlawful act which caused the death of the deceased; and,
    3. That the Accused had malice aforethought.
  4. Proof of the cause of death was by way of medical and circumstantial evidence. The post mortem report stated that the deceased's death was caused by a single gunshot injury to the head. The weapon used to fire the gunshot was identified as a ceska pistol serial No. 9919. The evidence of other police officers PW11, PW13, PW18 and PW19 was that they were in the company of the deceased on patrol duties when he was shot and he died instantly.
  5. Not all killings were unlawful. Causation of death was excusable in law in circumstances of reasonable defence to self, property, as a result of accident or misadventure or in protection of life or property of a third party.
  6. Malice aforethought entailed the mens rea or the mental element required for a conviction for the offence of murder. It imported the notion of culpability or moral blameworthiness on the part of the offender. Under section 206 of the Penal Code, malice aforethought would be established if the any of the following was shown;
    1. an intention to cause death of or to do grievous harm to any person whether that person was the person actually netted or not.
    2. Knowledge that the act or omission causing death would probably cause the death of or grievous harm to some person, whether that person was the person actually netted or not, although such knowledge was accompanied by indifference whether death or grievous bodily harm was caused or not, or by a wish that it would possibly not be caused.
    3. An intent to commit a felony.
    4. An intention by an act or omission to facilitate the fight or escape from custody of any person who had committed or attempted to commit a felony.
  7. The duty of the prosecution under section 206 of the Penal Code was to prove one or a combination of the circumstances required to prove malice aforethought. Courts inferred the existence of malice aforethought from the nature and type of weapon used and the real multiple severe bodily injuries suffered by the victim.
  8. The Accused fired the gun while exercising his legal right as a police officer to prevent the commission of a felony at Destiny Bar and he used the weapon which he had in his possession at the time. At best, he could be guilty of the offence of manslaughter contrary to section 202 of the Penal Code.
  9. Section 17 of the Penal Code provided for self-defence and defence of property. The test for self-defence was both objective and subjective. Section 17 of the Penal Code would provide a defence even to an Accused person who mistakenly thought that someone who approached him was armed with a dangerous weapon while in fact that person was not armed. However, the mistake would have to be a reasonable one. The force used in self-defence ought to be proportional to the imminent danger faced and the harm it could cause. The elements of self-defence included:-
    1. That the Accused had to have had reasonable ground to believe that there was apparent imminent or immediate danger of death or serious bodily harm from his attacker,
    2. The Accused had to have in fact a reasonable belief that his life was in danger or a third person or his property or other person’s property,
    3. He had to not be the person who triggered the conflict or the assault,
    4. The use of force had to have been reasonable and not excessive.
  10. The evidence established that there was an opinion that there were suspicious persons outside the bar and there was no sufficient caution or warning that those persons were police officers. The Accused's belief as to what the circumstances were and what the danger was were important. If the beliefs were mistaken, the mistake would have to be a reasonable one.
  11. In negating the defence of self-defence, the prosecution would had to show that in using force, the Accused did not honestly and reasonably believe that he was under physical threat from his attackers or that the Accused had an opportunity to retreat, or that the use of force was disproportionate to the threat faced or that force was not used in self-defence or in defence of some other person. The Prosecution did not tender evidence to negate self-defence as a defence to the murder charges.
  12. The facts indicated that any person in the Accused's position would reasonably have perceived danger to himself and a possibility of a commission of a felony and probability of bodily injury to PW1, PW2, PW3, PW4, PW5 and PW10. The conduct of the Accused person was a reasonable response to the circumstances as he perceived them.

Accused acquitted.

ELECTOTAL LAW A person would only qualify for nomination as a Member of a County Assembly in the County in which that person is a registered voter.

Victoria Cheruto Limo & another v Independent Electoral and Boundaries Commission & another
Election Petition Appeal No 5 of 2018 and No 7 of 2018 (Consolidated)
High Court at Garissa
George Dulu, J
August 30, 2018
Reported by Beryl A Ikamari

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Electoral Law-County Assembly elections-nomination as a Member of the County Assembly under the category of special seats (gender top-up)-qualifications applicable to the nomination-whether persons that were not registered voters in a given County were eligible for the nomination-whether a person who was a registered voter in Uasin Gishu County could be nominated as a Member of the County Assembly of Garissa under the category of special seats (gender top-up)-Constitution of Kenya 2010, article 177; Elections Act, No 24 of 2011, sections 34, 35, 36 & 37.
Civil Practice and Procedure-parties to a suit-joinder of parties-misjoinder-whether the joinder of an Interested Party in a High Court election petition appeal was valid where it seemed to favour a certain party to the proceedings.
Civil Practice and Procedure-orders of the Court-validity of orders of the Court-validity of an order which was not sought by parties to the proceedings and validity of an order made against a party which was not a party in the proceedings.
Electoral Law-Memorandum of Appeal-form and content of a Memorandum of Appeal in a High Court election petition appeal-effect of having a Memorandum of Appeal signed by the Appellant's advocate instead of the Appellant and failure to comply with the requirement that a Memorandum of Appeal should be concise, under distinct heads and without argument- Constitution of Kenya 2010, article 159(2); Elections (Parliamentary and County Elections) Petition Rules 2017, rule 8(4) & 34 (2).
Electoral Law-Memorandum of Appeal-form and content of a Memorandum of Appeal in a High Court election petition appeal-effect of having a Memorandum of Appeal make reference to questions of law while describing them as questions of fact and law-Elections Act, No 24 of 2011, section 75.

Brief facts:
Two appeals were lodged at the High Court against the decision of the Magistrates’ Court at Garissa to nullify the nomination of the 1st Appellant as Member of the County Assembly of Garissa under the category of special seats (gender top-up). The two appeals were consolidated and heard together.
The 1st Appellant's appeal entailed assertions that the 1st Appellant was validly nominated in a process that was in accordance with the applicable law. The 2nd Appellant contended that as a person from Uasin Gishu County, the 1st Appellant was not qualified to be nominated to the Garissa County Assembly. She stated that in nominations cultural, religious and ethnic considerations should not be departed from.
In her appeal, the 2nd Appellant stated that after the Magistrates’ Court made the finding that the 1st Appellant was not validly elected, it should have directed the IEBC to gazette the 2nd Appellant as the nominee, for the gender top up position in Garissa County Assembly. She contended that the order for fresh nominations was not supported by law as section 34 (10) of the Elections Act provided that the list supplied to the IEBC was a closed list which meant that upon the death, resignation or disqualification of a nominee, the second person named on the list would take the vacant spot.
The 2nd Appellant made an application for the striking out of the 1st Appellant's Memorandum of Appeal on grounds that it was incurably defective as it failed to comply with rule 34 (1) and (2) of Elections (Parliamentary and County Elections) Petition Rules 2017 (Election Petition Rules 2017) in that the Memorandum of Appeal was not signed by the Appellant, and did not set out under distinct heads the grounds of appeal.

Issues:

  1. Whether a person who not a registered voter in a given County could qualify for nomination in the County Assembly for that County, where that person was a registered voter in a different County.
  2. Whether there was a misjoinder where the joinder of an Interested Party seemed to favour a certain party.
  3. What was the effect of orders being granted against a party that was not party to the proceedings and no orders were sought against that party by the parties to the proceedings?
  4. What was the effect of having a Memorandum of Appeal in a High Court election petition appeal signed by the Appellant's advocate instead of the Appellant?
  5. What was the effect of having questions of law in a High Court election petition appeal referred to as questions of fact and law in the drafting of a Memorandum of Appeal? Read More..

Held:

  1. Section 75(4) of the Elections Act provided that the jurisdiction of the High Court in appeals arising from the Magistrates’ Election Court, would only relate to matters of law. The appeal had to be filed within 30 days of the decision of the Magistrates’ Court and heard and determined within 6 months from the date of filing.
  2. The fact that the joinder of the National Cohesion and Integration Commission as an Interested Party seemed to favour a certain party did not disqualify the Commission from being an Interested Party. The joinder of that party was valid.
  3. In the petition filed at the Magistrates’ Court, prayer (a), (c), (d), (f) and (g) mentioned the Kenya Patriots Party but only sought orders against the 1st Appellant. Since no orders were sought against the Kenya Patriots Party, which was not a party to the proceedings, the petition was not defective on grounds relating to the orders sought.
  4. The Memorandum of Appeal filed in the 1st Appellant's appeal was signed by the advocate on record and not the 1st Appellant. Rule 8(4) of the Elections Petition Rules 2017 provided that the petition could be signed by a person authorized by the Petitioner. However, there was no document filed to show that the advocate was authorized to sign the Memorandum of Appeal. That was an advocate's mistake which was curable under article 159(2) of the Constitution.
  5. Rule 34 (2) of the Election Petition Rules 2017 required the Memorandum of Appeal to be concise, under distinct heads and without argument. Though the Memorandum of Appeal was numbered with no headings, that was a minor omission and no prejudice was occasioned to any party.
  6. The section 75 of the Elections Act provided that the appeal would be grounded on matters of law only. Paragraphs 1, 2, 3, 4, 6, 7, 8 and 9 of the Memorandum of Appeal stated that the Magistrates’ Court erred in law and in fact. Despite the use of the word "fact" in those paragraphs, the contents of the paragraphs did not require the Court to re-evaluate the evidence and reach at its own conclusions. It was a case of erroneous drafting by advocates. The 1st Appellant's Memorandum of Appeal was not fatally defective, even though most of the grounds of appeal, in the first line, started with the words “law and fact.”
  7. The definition of gender top-up in a County Assembly was provided in article 177 of the Constitution. Sections 34, 35, 36 and 37 of the Elections Act were relevant to gender top ups in County Assemblies. It was noteworthy that in the case of County Assemblies unlike the case of the National Assembly and Senate, the party lists were not required to reflect the regional and ethnic diversity of the people of Kenya.
  8. Gender top-up positions applied to both males and females, and would arise where the composition of elected members of a County Assembly, did not meet the constitutional requirement of not having more than two thirds from one gender, under article 177 (1) (b) of the Constitution. To be nominated for the position, a person would have to be a registered voter and be a member of the nominating political party on the date of nomination as provided for under section 34(8) of the Elections Act.
  9. At the time of her nomination, the 1st Appellant was a member of the Kenya Patriots Party and also a registered voter in Uasin Gishu County. She was not a registered voter in Garissa County.
  10. In Kenya, voters were registered to vote in only one polling station. Under regulation 38 of the Elections (Registration of Voters) Regulations 2012, Kenyan citizens residing outside Kenya were only allowed to vote in presidential elections or referendum. Similarly, regulation 38E of the Elections (Registration of Voters) Regulations 2012, allowed prisoners to only vote in the presidential elections or referendum. It was only those who were registered to vote in Garissa County that qualified for nomination by the party to the County Assembly of Garissa. As a registered voter in Uasin Gishu County, the 1st Appellant was not qualified or validly nominated to fill the gender top-up position in the Garissa County Assembly.
  11. There was nothing to support the 2nd Appellant's contention that the Magistrates’ Court considered irrelevant issues and failed to consider relevant issues. The High Court would not analyse the evidence as that was beyond its jurisdiction.
  12. A trial court's power to issue a certificate under section 80 of the Elections Act was discretionary and would only apply to a recount. There was no recount applicable to the circumstances of the case.
  13. No criminal allegation was proved beyond reasonable doubt. Therefore the Magistrates’ Court could not be faulted for not making criminal findings.
  14. The Magistrates’ Court erred in making an order directed at the Kenya Patriots Party to conduct fresh nominations. Such an order could not be made as the Kenya Patriots Party was not a party to the proceedings and the Petitioner did not seek any orders against that political party.
  15. Section 34 (10) of the Elections Act provided that party lists submitted to the IEBC would not be amended during the term of Parliament. Therefore, it was appropriate to order the IEBC to re-allocate the gender top-up seat to the next female Garissa County registered voter in the list from which the Appellant was gazetted in accordance with the provisions of section 37 of the Elections Act.

Consolidated appeal partly dismissed.
Orders:-

  1. The nomination of Victoria Cheruto Limo as a Member of the County Assembly of Garissa under the category of special seats (Gender Top-up) was null and void.
  2. The Gazettement of Victoria Cheruto Limo as the nominated Member of County Assembly of Garissa under the category of special seats (Gender Top-up) vide Kenya Gazette Notice No. 8752 of September 6, 2017 was nullified.
  3. Since the party lists submitted to IEBC were required under section 34 (10) of the Elections Act not to be amended during the term of Parliament, the High Court certified and ordered the IEBC to re-allocate the gender top-up seat to the next female Garissa County registered voter in the list from which Victoria Cheruto Limo was gazetted in accordance with the provisions of section 37 of the Elections Act.
  4. Each party would bear their respective costs of appeal and the trial court proceedings.
CIVIL PRACTICE AND PROCEDURE Requirements to be met for joinder of Interested Parties to a Supreme Court petition.

Kensalt Limited v Water Resources Management Authority
Application No 8 of 2016
Supreme Court at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndung'u & I Lenaola, SCJJ
August 31, 2018
Reported by Beryl A Ikamari

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Civil Practice and Procedure-parties to a suit-joinder of parties-joinder of Interested Parties to a Supreme Court petition-legal requirements to be met in an application for joinder of intended Interested Parties to a Supreme Court petition-circumstances under which Applicants for such a joinder would be said to have demonstrated that they would suffer prejudice due to a non-joinder.

Brief facts:
Two parties made two different applications seeking to be joined as Interested Parties to the substantive appeal by the Petitioner. The applications for joinder were made by Krystalline Salt Limited (via an application dated June 22, 2016) and Malindi Salt Limited (via an application dated February 27, 2017.)
The matter originated from the Environment and Land Court wherein the Respondent claimed Kshs.270,295,759.90, as charges allegedly due for use of water in the course of salt manufacture from the Petitioner. An application for the striking out of the plaint was made at that court. In the application it was said that there was no basis for the levying of charges in respect of sea water and that Respondent did not have locus standi. The Petitioner stated that the Respondent was constitutionally debarred from levying tax, in the absence of express provisions under the Water Act or the Water Resources (Management) Rules, 2007. The application was allowed and the Respondent's suit was struck out.
The Respondent filed an appeal at the Court of Appeal and the Petitioner cross-appeal on one limited question. The Court of Appeal gave a judgment to the effect that the Respondent's case was to be subjected to a full hearing before a different judge. The Petitioner appealed against the Court of Appeal decision and contended that the Respondent had no lawful mandate over sea water, in view of the terms of the Constitution, the Water Act, or any other law and that the Environment and Land Court lacked jurisdiction to entertain the matter.
The Applicants stated that they had been charged for the use of sea water and they had claims against the Respondent which were similar to those of the Petitioner. They therefore made applications for joinder at the Supreme Court.

Issues:

  1. What were the principles applicable to joinder of intended Interested Parties to a Supreme Court petition?
  2. When would a party be said to have shown that he would suffer prejudice as a result of non-joinder in an application for joinder of an intended Interested Party to a Supreme Court petition? Read More..

Held:

  1. The principles related to joinder of new parties in on-going causes were settled. For one to be enjoined, the making of a formal application was necessary. Enjoinment was not as of right but was at the discretion of the Court and hence sufficient grounds had to be laid before the Court, on the basis of the following elements:-
    1. The party's personal interest or stake in the matter had to be set out in the application. The interest had to be clearly identifiable and proximate enough, to stand apart from anything that was merely peripheral.
    2. The intended Interested Party would have to demonstrate to the satisfaction of the Court, the prejudice that would be suffered in the case of non-joinder. The prejudice that would be suffered would have to be clearly outlined and not something remote.
    3. The party, in its application, would have to set out the case and/or submissions that it intended to make before the Court and demonstrate the relevance of those submissions. That party should also demonstrate that those submissions were not merely a replication of what other parties would be making before the Court.
  2. The prejudice that the Applicants submitted that they would suffer entailed a denial of their right of access to justice under article 48 of the Constitution and that if they waited to be heard in their own causes, interest would keep accruing on the amounts demanded as payment by the Respondent. The claim on denial of access to justice was not new and it was not raised at the Environment and Land Court, at the Court of Appeal, or within the texture of the petition before the Supreme Court.
  3. There was no order of stay of proceedings and no situation to prevent the Applicants from lodging their own suits for hearing and determination and filing appeals thereafter in the event of unfavourable outcomes. Therefore, there was no basis for the claim of denial of access to justice.
  4. It was relevant that joinder was not sought at the Court of Appeal and the Environment and Land Court. The Supreme Court was not convinced that there was prejudice which the Applicants would suffer at the Supreme Court but would not have suffered at the Court of Appeal.
  5. It was of relevance that the Applicants filed suits before the Trial Court and that Court had the duty to conduct the matters judicially and duly make prescriptive findings.
  6. The Applicants failed to demonstrate that they would suffer prejudice if they were not joined in the appeal before the Supreme Court.

Orders:-

  1. The Notice of Motion of June 22, 2016 by Krystalline Salt Limited was disallowed.
  2. The Notice of Motion of February 27, 2017 by Malindi Salt Limited was disallowed.
  3. The parties had to bear their own respective costs.