Supreme Court has inherent Jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal
Republic v Ahmad Abolfathi Mohammed and another [2018] eKLR
Supreme Court of Kenya
Criminal Application No 2 of 2018
D K Maraga, CJ & President; M K Ibrahim; J B Ojwang; S C Wanjala; & S N Ndungu, SCJJ
September 28, 2018
Reported by Ian Kiptoo
Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-Inherent jurisdiction of the Supreme Court-jurisdiction to stay an order of acquittal of an accused person-where no provision in statute or Constitution provided for such jurisdiction-principles applicable in exercising discretion to stay acquittal of an accused person-whether the Supreme Court had inherent jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal-what were the applicable principles/guidelines a court should use in exercising its discretion to stay an acquittal of an accused person-Constitution of Kenya, 2010, articles 20 (3), 50 (1), 163 (4) (b), and 259; Criminal Procedure Code, section 348A; Supreme Court Rules, 2012, rule 24
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-freedom from discrimination and right to fair trial-where an aggrieved party was denied certification that a matter was of general public importance-whether denying an aggrieved party on appeal, certification that a matter was of general public interest, was a violation of a party’s right to fair hearing and freedom from discrimination-Constitution of Kenya, 2010, articles 27, 50, 163(4) (b), 163(5), and 259 (1)
Constitutional Law-fundamental rights and freedoms-right to fair hearing-where an appeal sought to stay the acquittal of an accused person-whether an appeal to a higher court of appeal, against the acquittal of an accused, violated an accused person’s right not to be tried for an offence he/she had previously been acquitted or convicted-Constitution of Kenya, 2010, articles 50 (2) (o)


Brief facts:
The Respondents, Iranian nationals, were charged with and convicted for the offences of being in possession of explosives contrary to section 29 of the Explosives Act; committing an act intended to cause grievous bodily harm contrary to section 231 of the Penal Code; and preparing to commit a felony contrary to section 308(1) of the Penal Code. They were each sentenced to life imprisonment on count 1, 10 years’ imprisonment on count 2 and 15 years’ imprisonment on count 3. The sentences were ordered to run concurrently.
The Respondents’ appeal to the High Court against conviction was dismissed. The one against sentence was, however, partially allowed with the result that the sentences imposed upon them by the Trial Court were set aside and in lieu thereof they were each sentenced to a consolidated term of 15 years’ imprisonment. Their second appeal to the Court of Appeal was allowed; their convictions were quashed and the sentences imposed on them were set aside and the Court of Appeal ordered their immediate repatriation.
Its application for certification having been dismissed by the Appellate Court, the State applied to the Court to review and set aside the said decision and in its stead to find that the State’s intended appeal raised matters of general public importance and grant it leave to appeal to the Court. The State wished to appeal to the Instant Court based on 5 main grounds that:

  1. The Applicant had an arguable appeal with high chances of success;
  2. The intended appeal involved a matter of general public importance as it touched on national security;
  3. The net effect of the judgment of the Court of Appeal would affect the investigations of all criminal cases and transcended the particular case;
  4. The intended appeal had a significant bearing on the public interest with respect to criminal matters which the Court of Appeal in its ruling of February 16, 2018 failed to consider; and
  5. That the intended appeal would be rendered nugatory if stay was not granted and the Respondents left the jurisdiction of the Court.
Issues :
  1. Whether denying an aggrieved party on appeal, certification that a matter was of general public interest, was a violation of a party’s right to fair hearing and freedom from discrimination.
  2. Whether the Supreme Court had inherent jurisdiction to stay an order of acquittal of an accused person from the Court of Appeal.
  3. Whether an appeal to a higher court of appeal, against the acquittal of an accused, violated an accused person’s right not to be tried for an offence he/she had previously been acquitted or convicted.
  4. What were the applicable principles/guidelines a court should use in exercising it discretion to stay an acquittal of an accused person?


Relevant Provisions of the Law
Criminal Procedure Code
Section 348A

(1)When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.
(2)If the appeal under subsection (1) is successful, the High Court or the Court of Appeal, as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.


Supreme Court Rules, 2012
Rule 24(2)

“[W]here the Court of Appeal has certified or has declined to certify a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days

Indian Code of Criminal Procedure, 1973
Section 390

When an appeal is presented under s. 411A subsection (2) or section 417, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the court before which he is brought may commit him to prison pending the disposal of the appeal, or admit him to bail.”

Held:

  1. In interpreting the review jurisdiction in article 163(5) of the Constitution of Kenya, 2010(Constitution), regard should be had to the dictum of harmonization under article 259(1) of the Constitution and giving the term certifies or certification in article 163(4) (b) of the Constitution a broad interpretation. In that regard therefore, and on the facts of the case, the principles of non-discrimination under article 27 and fair hearing under article 50 should never be lost sight of. Therefore, to deny a party aggrieved by a refusal to grant certification that a matter was one of general public importance was discriminatory and contrary to article 27 and a denial of the right to a fair hearing under article 50(1) of the Constitution.
  2. Article 163(5) of the Constitution vested the Supreme Court with jurisdiction to review the Court of Appeal’s decision to grant or decline certification that a matter was one of general public importance therefore affirming the words of rule 24(2) of the Supreme Court Rules, 2012 that where the Court of Appeal had certified or had declined to certify a matter to be of general public importance, an aggrieved party may apply to the Court for review within fourteen days.
  3. The State’s wishes to challenge the Appellate Court’s decision allowing the Respondents’ appeal and acquitting them of all the charges they faced thus setting them free could only be availed that opportunity if, as required by article 163(4)(b) of the Constitution, it was granted leave to appeal after it had demonstrated that the issue to be canvassed on appeal was a matter of general public importance the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest.
  4. It was a matter of common notoriety that Kenya had, in the past suffered several horrendous terrorist attacks and as a result lost hundreds of innocent Kenyans and thousands were left maimed and seriously injured with personal disabilities and permanent scars. Due to the nature of the terrorist attacks, the Kenyan public had for a time lived in fear and felt insecurity in their own motherland. The crime of terrorism undermined the national security as well as the peace and tranquility of the people of Kenya and all others who lived within its borders. Consequently, and on the principles the Court set out in various cases, as well as rule 24(2) of the Supreme Court Rule 2012, the Applicant had made out a case for review of the Appellate Court’s orders denying the Applicant leave to appeal to the Court.
  5. The Court of Appeal erred in its observation that it was not aware of any law that granted it jurisdiction to stay an acquittal of an accused person so that he continued to be held in custody as a suspect awaiting a possible finding of guilt by the Supreme Court. In addition, the Appellate Court erred when it held that the inherent jurisdiction of the Court could not be the basis for granting the orders of stay that had no constitutional or statutory basis but instead negated the constitutional presumption of innocence until the contrary was proved.
  6. Unlike in the Indian cases of Express of India v Mangu & Others, (1880) ILR 2 ALL 342 and The State of UP v Poosu & Another, 1976 3 SCC 1 as well as the Malaysian case of Prosecutor v Bird Dominic Jude, Criminal Appeal No. W-05-216-09/2012, where there were express statutory provisions granting the Court discretionary authority to arrest and detain a respondent pending the hearing and determination of the State’s appeal against his acquittal, there was no express statutory provision in Kenyan statutes granting the Court jurisdiction to stay an acquittal. That did not mean the Kenyan appellate courts were helpless in such matters.
  7. It was not in dispute that section 348A of the Criminal Procedure Code, introduced by the Security Law (Amendment) Act No. 19 of 2014 granted the Director of Public Prosecutions (DPP) the right of appeal on both facts and law against the acquittal of an accused person. Although there was no mention of the Supreme Court in section 348A of the Criminal Procedure Code, it was not in dispute that article 163(3)(b) of the Constitution granted the Supreme Court jurisdiction to hear and determine appeals from [inter alia] the Court of Appeal which met the criteria of matters involving the interpretation or application of the Constitution and those certified by either the Court of Appeal or Supreme Court to be of general public importance as stated in clause (4) of article 163. Therefore in the instant matter, the State’s intended appeal was properly grounded on the Constitution.
  8. In exercise of its jurisdiction, article 259 of the Constitution required the Supreme Court, like other courts and tribunals, to interpret the Constitution in a manner that—promoted its purposes, values and principles; advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance. In the development of the law, article 20(3) of the Constitution required that in applying a provision of the Bill of Rights, a court shall-develop the law to the extent that it did not give effect to a right or fundamental freedom; and adopted the interpretation that most favoured the enforcement of a right or fundamental freedom.
  9. What Clause (a) of article 20(3) required the Court to do, in what appeared to be in mandatory terms, was, under its inherent jurisdiction, to develop the law where there was a lacuna especially in applying the provisions of the Bill of Rights to ensure that such provisions were not rendered ineffectual. One of the rights and fundamental freedoms in the Bill of Rights was the right to a fair trial under article 50(1) of the Constitution.
  10. Justice cut both ways. In both civil and criminal cases, the Court had to be fair to all the parties before it. It followed that in the instant criminal matter, the right to a fair trial under article 50(1) of the Constitution demanded of the Court even-handed treatment of both the Applicant and the Respondents. The Applicant had been allowed to come before the Court under article 163(4) (b) as read with section 348A of the Criminal Procedure Code. The Court could not turn away the Respondents’ contention that there was no provision in law bestowing the Court with jurisdiction to grant stay of an acquittal order and hold the acquitted person(s) in custody pending the hearing of the appeal against their acquittal. To do that would with respect, be a dereliction of the Court’s constitutional obligation under articles 20, 50(1), 163(3) (b) and 259 of the Constitution.
  11. As a matter of public policy, the Court, and indeed any other court, could not and should not exercise its jurisdiction or act in vain. To enable it stamp its authority and deliver on its constitutional mandate in any matter properly before it and to uphold both parties’ right to a fair trial under article 50(1) as well as ensure that its processes were not abused, scuttled or negated by any mischievous or nefarious conduct, the Court had inherent jurisdiction, not expressly conferred by the Constitution or any statute, but accruing to it by its existential nature as a court of law duly constituted to administer justice, to issue any orders to ensure that the ends of justice in any particular case were met. In the circumstances, the Court had inherent jurisdiction to grant the orders of stay sought in the Application if merited.
  12. Invoking a court’s inherent jurisdiction was not a novel proposition the Court was plucking out of the air. By its very nature, the inherent jurisdiction of the Court was neither conferred by statute, nor by any external authority or process. Rather, it emanated from the Court’s broader and primary power to administer justice. In the major jurisdictions across the world, in cases of lacunae in the law, inherent powers of the Court had been recognized and invoked in contexts where it was deemed necessary to serve the ends of justice.
  13. In India, section 390 of the Indian Code of Criminal Procedure, 1973 granted the High Court jurisdiction to stay an acquittal. However, the Indian Supreme Court, which had no such express statutory jurisdiction held in the case of The State of UP v Poosu & Another, 1976 3 SCC 1 that it had inherent jurisdiction drawn directly from the Constitution to stay an acquittal and even remand in custody the person whose acquittal was being challenged.
  14. The Court’s inherent power was not unlimited. Where there was a clear and explicit rule in statute, no such power could be invoked against a clear expression in the law or statute. The Indian Supreme Court in the 1968 case of Padem Sen v State of UP AIR 1961, SC 218 recognized that principle. Referring to a provision in section 151 of the Indian Penal Code, the Court noted that, it was well recognized that the inherent power was not to be exercised in a manner which would be contrary to or different from the procedure expressly provided in the Code.
  15. Even without a specific statutory provision like section 390 of the Indian Code of Criminal Procedure, 1993 or section 56A the Malaysian Courts of Judicature Act, 1964. On the provisions of section 24 of the Supreme Court Act, the Court had inherent jurisdiction to grant interlocutory orders not only to preserve the subject matter of an appeal but also to ensure that an appeal or intended appeal was not rendered nugatory thus defeating the course of justice.
  16. An appeal to a higher court against acquittal of an accused person did not constitute a new or different and distinct trial of the accused person for the offence in respect of which he was acquitted and therefore did not violate article 50(2) (o) of the Constitution. A conviction or acquittal did not mark the end of one trial and an appeal against conviction or acquittal the beginning of another trial. An appeal was a continuation of the same trial in a higher court; a different stage of the same trial for the purposes of correction of errors, if any, and ensuring that there was no miscarriage of justice.
  17. It would throw out of the window the objective of a fair trial under article 50(1) of the Constitution if the Court were to concur with the Appellate Court that courts in the country had no jurisdiction to stay an order of acquittal and remand in custody a respondent whose acquittal was being challenged on appeal. However, an application for stay of an acquittal and remand of an acquitted person, whose innocence had been declared by a court of competent jurisdiction, was a very serious matter as it sought to restrict such acquitted person’s constitutional right to freedom of movement. It was therefore a matter that required to be considered with great circumspection. Orders of stay and remand of an accused-respondent should sparingly be granted. The prosecution had to demonstrate to the Court the risk of flight likely to render the appeal or intended appeal an academic exercise if the Respondent was not remanded.
  18. An appellate court was not totally handicapped. It may where satisfied grant an order staying an acquittal pending the hearing and determination of the appeal by the State. That power may be statutory provided for, like the case of Malaysia, or drawn from the Constitution, like the case of India. Kenya had no legal provision either in the Constitution or statute that directly spoke to the power of an appellate Court, be it the High Court, Court of Appeal or Supreme Court, to grant orders of committal to prison of an acquitted person pending the hearing of the appeal. However, the Supreme Court was not handicapped as to be totally curtailed from granting such an order.
  19. Time was ripe for the legislative arm of the government, Parliament, to consider such legislation. Parliament, the Attorney General, Director of Public Prosecution and other stakeholders in the justice system, including the Law Reform Commission and the Law Society of Kenya were called upon to consider such a legislative framework.
  20. Before the legislative framework was enacted, the Supreme Court in exercise of its inherent jurisdiction and unfettered jurisdiction as pronounced by rule 3 of the Supreme Court Rules, 2012 had the power to grant an order staying an acquittal pending the hearing of an appeal filed by the State, through the office of the Director of Public Prosecution. That jurisdiction was discretionary and had to be exercised judiciously and not whimsically. That called for setting of guidelines/principles on how the Court(s) exercised that jurisdiction.
  21. Drawing from the comparative jurisprudence, the following principles were delimited for consideration in an application for stay of acquittal pending the hearing and determination of an appeal:
    1. The discretion to grant stay of acquittal should be exercised sparingly;
    2. The discretion shall be exercised judiciously and not whimsically;
    3. The accused person had been found not guilty and acquitted, hence there was a presumption of innocence in favour of the accused;
    4. It was in the interest of the Public, the State and the Court before which the appeal had been filed to preserve the integrity of the appeal;
    5. It was not automatic that upon the State’s filing of an appeal stay would be granted. The onus was on the State (Director of Public Prosecution) to lay a basis to the satisfaction of the Court as to the existence of special circumstances that militated against the release of the acquitted person;
    6. In considering what amounted to special circumstances, the Court shall consider the following:
      1. The nature and seriousness of the offence;
      2. Whether the absence or non-attendance of the accused person at the hearing of the appeal would render it nugatory;
      3. The probability of accused absconding court if released, was he/she a flight risk;
    7. A balance had to be struck between the right to individual liberty of the Accused and the interest of the public;
    8. The length of time which was likely to take for the appeal to be heard.
    9. The Court shall expedite the hearing and determination of the appeal.
  22. In the instant case, the Respondents were foreigners. They were Iranians. Kenya had no extradition treaty with Iran. Therefore, if repatriated, it would be difficult to secure the Respondents’ presence in Kenya to complete their imprisonment term if the State’s appeal was allowed.

Application allowed.

Orders
  1. The Application for stay of execution of the Respondents’ acquittal and repatriation was allowed. Article 163(5) of the Constitution vested the Court with jurisdiction to review the Appellate Court’s denial to grant certification under article 163(4)(b) and the Applicant had made out a case for certification.
  2. The Court reviewed and set aside the Appellate Court’s decision of February 16, 2018 declining to grant certification that the matter was of general public importance and denying the Applicant leave to appeal to the Court against the Court of Appeal’s decision of January 26, 2018 which allowed the Respondents’ appeal, quashed their conviction and ordered their repatriation.
  3. Substitution of the denial of certification with an order granting the Applicant leave to appeal.
  4. That the principle of harmonization under article 259 of the Constitution and the spirit of the right to a fair trial under article 50(1) of the Constitution read with section 348A of the Criminal Procedure Code bestowed upon the Court inherent jurisdiction to stay the acquittal of a respondent pending the determination of the appeal challenging that acquittal.
  5. Pending the filing, hearing and final determination of the Applicant’s intended appeal, the Respondents’ acquittal by the Appellate Court was stayed and the Respondents would be held in police custody.
  6. The Applicant would file and serve its appeal within thirty days. Once filed the Appeal would be heard on priority basis.
  7. It was directed that copies of the instant Judgment delivered be transmitted to the said stakeholders for their noting and necessary action.


Kenya Law
Case Updates Issue 040/2018
Case Summaries

CIVIL PRACTICE AND PROCEDURE Supreme Court grants stay of execution of the judgment nullifying the Kilgoris Member of National Assembly elections pending hearing and determination of an appeal challenging the said judgment

Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR
Civil Application No. 26 of 2018
Supreme Court of Kenya
M K Ibrahim,J B Ojwang,S C Wanjala, N S Ndungu & I Lenaola, SCJJ
September 7, 2018.
Reported by Kakai Toili

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Civil Practice and Procedure–affidavits-essentials of a valid affidavit- dating, signing and commissioning of an affidavit-failure to date, sign and commission an affidavit- what was the effect of failing to date, sign and commission an affidavit-Oaths and Statutory Declarations Act, sections 5 & 8
Civil Practice and Procedure-applications-unopposed applications- effect of-what was the duty of a court in determining an unopposed application and whether a court could automatically grant orders sought where an application was unopposed

Brief facts:
Following the General Elections of August 8, 2017, the Applicant was declared duly elected Member of the National Assembly for Kilgoris Constituency. Aggrieved by the declaration, the 1st Respondent filed an Election Petition at the High Court challenging it. Upon consideration of the Petition, the High Court, dismissed it in its entirety and condemned the 3rd Respondent to pay costs for both the Petitioner and 1st Respondent.
The 1st Respondent aggrieved by the High Court decision preferred an Appeal to the Court of Appeal while the 2nd and 3rd Respondents filed a Cross-Appeal against the High Court’s decision condemning the 3rd Respondent, IEBC, to pay costs. The Court of Appeal allowed the Appeal and dismissed the Cross-appeal. Aggrieved by the Court of Appeal’s decision the Applicant filed an appeal challenging the decision and the instant Application seeking orders that the Court of Appeal’s orders be stayed pending the determination of the Appeal.

Issues:

  1. What was the effect of failing to date, sign and commission an affidavit?
  2. What was the duty of a court in determining an unopposed application and whether a court could automatically grant orders sought where an application was unopposed. Read More..

Relevant Provisions of the Law
Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya.
Section 5
Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.

Section 8
A magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule.

Held :

  1. The making of affidavits was governed by the Oaths and Statutory Declarations Act. An Affidavit had to clearly state the place and date where it was made and it had to be made before a Magistrate or a Commissioner for oaths. The Replying Affidavit filed by the 1st Respondent was fatally defective as the same contravened all the legal requirements for the making of an affidavit, hence it had no legal value in the instant matter. All the eight copies of the Replying Affidavit as filed in the Court Registry were not signed, commissioned and dated. Consequently, as the same was defective, it was deemed that there was no Replying Affidavit on record filed by the 1st Respondent.
  2. A Replying Affidavit was the principal document wherein a Respondent’s reply was set and the basis of any submissions and/or List of Authorities that could be subsequently filed. In the absence of the Replying Affidavit, the Written Submissions filed by the 1st Respondent on August 17, 2018 were of no effect. Curiously, even the said Written Submissions were not dated, though that possibly could not have been fatal had the foundational document, the Replying Affidavit, been in order. From a perusal of the Written Submissions, it was clear that they were substantially based and relied on the undated and unsworn Replying Affidavit.
  3. There were no Grounds of Objection raising any specific points of law of any preliminary or jurisdictional nature. As the 2nd and 3rd Respondents had categorically stated that they did not oppose the Application, the Court would be excused for therefore deeming the Application as being unopposed entirely.
  4. The Court had a duty in principle to look at what the Application was about and what it sought. It was not automatic that for any unopposed application, the Court would as a matter of cause grant the sought orders. It behooved the Court to be satisfied that prima facie, with no objection, the application was meritorious and the prayers could be granted. The Court was under a duty to look at the Application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which could render the Application a non-starter. There was no such jurisdictional issue in the instant Application. Hence the Court proceeded to consider the facts as against the jurisprudence for grant of stay orders set by the Court.
  5. The Applicant demonstrated that he had an arguable case, particularly whether his election could be nullified on a singular ground that there was a violation of article 86(a) of the Constitution by virtue of criminal diversion of ballot boxes from one polling station, when those votes were not factored in in the final declaration of results.
  6. If the orders sought were not granted the Appeal would be rendered nugatory. The workload of the Court was not a legal basis for grant of any conservatory orders. The instant Application met the threshold for grant of stay orders.

Application allowed

  1. Notice of motion application dated August 8, 2018 allowed.
  2. Execution of the judgment of the Court of Appeal delivered on July 31, 2018 in Election Petition Appeal No. 11 of 2018 at Nairobi and the Order derived therefrom stayed pending the hearing and determination of the Appeal.
  3. A conservatory order issued restraining the 3rd Respondent, Independent Electoral and Boundaries Commission, from announcing, gazetting or conducting fresh elections in Kilgoris Constituency for a Member of the National Assembly pending the hearing and determination of the Appeal.
  4. A conservatory order issued restraining the Speaker of the National Assembly from giving notice to the 3rd Respondent, Independent Electoral and Boundaries Commission, of the occurrence of the vacancy in Kilgoris Constituency for Member of the National Assembly pending the hearing and determination of the Appeal.
  5. Costs of the Application to abide the Appeal.
STATUTES Kissing and indecently touching another person against his/her will is not an offence under section 2 of the Sexual Offences Act

John Kimani Njoroge v Republic
Criminal Appeal Number 183 of 2014
High Court at Nairobi
G W Ngenye-Macharia, J
July 18, 2018
Reported by Ian Kiptoo

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Statutes-interpretation of statutes-interpretation of section 2(1) of the Sexual Offences Act-definition of an offence that amounted to an indecent act-where an accused was convicted for kissing and holding a minor-claim that the evidence adduced did not disclose an offence-whether an accused person could be convicted of an indecent act that was not defined in the Sexual Offences Act-Sexual Offences Act, sections 2(1) and 11

Brief Facts:
The Appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act. He was charged with intentionally and unlawfully kissing on the mouth and holding the waist of M M, a child aged 13 years, with his hands. He was found guilty, convicted and sentenced to 10 years imprisonment.
The Appellant’s grounds for appeal was that; the Trial Court erred by introducing a new definition of what constituted an indecent act; that the definition was not founded in law; that the Trial Court erred in failing to appreciate and find that the particulars of the charge did not support the offence in question.

Issue:

  1. Whether an accused person could be convicted of an indecent act that was not defined in the Sexual Offences Act. Read More...

Relevant Provisions of the Law
Sexual Offences Act
Section 2(1)
Indecent act” means any unlawful intentional act which causes:

a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;
b) Exposure or display of any pornographic material to any person against his or her will.”

Section 11(1)
“Any person who commits an indecent act with a child is liable upon conviction to imprisonment for a term of not less than ten years.”

Held:

  1. What was in issue before the Court was whether the evidence that was adduced disclosed the offence charged. The Hilda Atieno v Republic [2016] eKLR and Zachariah Otieno Charles v Republic [2011] eKLR casescould be distinguished from the instant appeal in that both cases the Appellants had been charged under section 27(1)(b)(4) of the Alcoholic Drinks Control Act, 2010 and section 8(2) of the Sexual Offences Act respectively which provisions, as was argued, provided for penalties as opposed to defining the offences.
  2. What constituted the offence of an indecent act was found at section 2(1) of the Sexual Offences Act. In the instant case, the evidence adduced in court according to PW2 was that the Appellant held her by her waist, pulled her towards him and kissed her on the lips. Under the provision, an offence was constituted if the contact was between any part of the body with the genital organs, breasts and buttocks of another person or (unwilling) exposure or display of any pornographic material.
  3. The Complainant was categorical that the Appellant only kissed her. There entirely lacked evidence that he touched her genital organ or buttocks or breasts with any of his body parts. No doubt the evidence did not disclose the offence charged. It was a case that ought not to have been filed.
  4. It was unfortunate that the Act did not provide for offences occasioned by when a person indecently touched another person against his/her will or other parts of the body other than those provided under section 2. Probably it was the ripe time that such offences were provided as they offended the decency of a woman or a man.
  5. The duty of the Court was to do justice to the law. In as much as the complainant was offended by the acts of the Appellant, the law as it was handed a total blow to the evidence adduced. Thus, the case was not proved beyond a reasonable doubt.

Conviction quashed, sentence set aside and the Appellant to be set free unless lawfully held.

CONSTITUTIONAL LAW Section 15(2) of the Judicial Service Act is not unconstitutional for failing to provide that nominations and appointment of members to the JSC would have to be done in an open, competitive and transparent process.

Katiba Institute v Attorney General & 9 others
Petition No 84 of 2018
High Court at Nairobi
E C Mwita, J
July 6, 2018
Reported by Beryl A Ikamari

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Constitutional Law-interpretation of constitutional provisions-principles applicable to constitutional interpretation-the proper approach to constitutional interpretation-Constitution of Kenya 2010, article 259(1).
Constitutional Law-constitutional commission-Judicial Service Commission (JSC)-nomination and appointment of members to serve in the JSC-nomination of a person to represent the Public Service Commission in the JSC by the Public Service Commission and nomination of a woman and a man by the President to represent the public in the JSC-whether the process of undertaking such nominations and appointments would have to be competitive, open and transparent-Constitution of Kenya 2010, articles 171(2)(g), 171(2)(h), 250 & 248(1).
Statutes-constitutionality of statutory provisions-constitutionality of section 15(2)(a) of the Judicial Service Act-whether section 15(2)(a) of the Judicial Service Act was unconstitutional on grounds of not providing for the manner in which nominations and appointment of members to the JSC should be done and not providing that the nominations and appointments should be done in a competitive, open and transparent manner-Constitution of Kenya 2010, article 171(2); Judicial Service Act, No 1 of 2011, section 15(2)(a).

Brief facts:
On February 13, 2018, the President nominated three persons as Commissioners to the Judicial Service Commission (JSC) and their names were forwarded to the National Assembly for approval. The 2nd Interested Party was nominated as a representative of the Public Service Commission pursuant to article 171(2)(g) of the Constitution. The 3rd and 4th Interested Parties were nominated to represent the public under article 171(2)(h) of the Constitution.
The Petitioner contended that the identification and nomination of the 2nd, 3rd and 4th Interested Parties was bereft of fair competition or merit contrary to article 232(1)(g) of the Constitution and was done without public participation. The Petitioner also stated that it was the role of the Public Service Commission and not the President to nominate the 2nd Interested Party.
The Petitioner challenged the constitutional validity section 15(2) of the Judicial Service Act, 2011, for failing to provide for the manner of identification and qualifications for appointment of the persons contemplated under article 171(2)(g) and 171(2)(h) of the Constitution. It argued that the impugned appointments negatively impacted on judicial independence and the proper functioning of the Judicial Service Commission.

Issues:

  1. What were the principles applicable to constitutional interpretation?
  2. Whether the 2nd, 3rd and 4th Interested Parties were appointed and approved in accordance with the Constitution and the law.
  3. Whether section 15(2) of the Judicial Service Act, which dealt with the nomination of members to the JSC, was unconstitutional for failing to provide for the nominations to be done in an open, transparent and competitive process. Read More..

Held:

  1. Article 259(1) of the Constitution provided that the Constitution shall be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance. The Constitution should not be given a narrow or simplistic interpretation.
  2. The Constitution, as a living instrument should not be given a rigged or artificial interpretation to avoid distorting the spirit, ideals and aspirations of the people. A Constitution should also be interpreted in a broad and flexible manner in order to achieve its purposes and principles.
  3. Although the Constitution had several provisions, it was one indivisible document that had to be given a holistic interpretation, reading one provision of the Constitution alongside others so that provisions would be read as supporting and not destroying one another.
  4. Article 171(2)(g) required the Public Service Commission to nominate a representative to JSC. Although there were allegations that the 2nd Interested Party was nominated by the President and not the Public Service Commission, evidence from the Public Service Commission (PSC) showed that he was nominated through internal meetings and a resolution. They then forwarded the 2nd Interested Party's name to the President and thereafter the National Assembly for approval. Therefore, the 2nd Interested Party was nominated by the Public Service Commission.
  5. Article 171(2)(g) of the Constitution did not require competition as suggested by the Petitioner. The article was self- executing and had to be understood as such.
  6. After the Public Service Commission nominated him, the 2nd Interested Party's name was forwarded to the office of the President as required under section 15(2)(a) of the Judicial Service Act. Under article 171(2) of the Constitution, there was no requirement for the nominee of the Public Service Commission to the JSC to be approved by the National Assembly. However the approval of the National Assembly was required for the one man and one woman, not being lawyers, appointed by the President to represent the public.
  7. Article 250(1) of the Constitution provided that each commission shall consist of at least three but not more than nine members, the Chairperson, members of the Commission and holders of independent offices shall be identified and recommended for appointment as prescribed by national legislation, approved by the National Assembly and appointed by the President. To be appointed, one had to have the qualifications specified in the Constitution and national legislation.
  8. Article 250 of the Constitution was a general provision dealing with Commissions and independent offices generally. It was applicable unless the Constitution provided otherwise. A reading of article 248(1) of the Constitution indicated that article 171 of the Constitution was an exception to article 250 and, therefore, the stated article 171 applied exclusively to the appointment of the 2nd Interested Party.
  9. Article 171(2)(h) of the Constitution gave the President discretion to nominate a woman and a man who were not lawyers, to represent the public subject to the approval of the National Assembly. The provision did not place conditions on how the appointment was to be done.
  10. The people, and by extension the framers of the Constitution, expected the President to act in good faith and in the best interest of the public when making appointments; to consider merit and national values and principles including integrity, national diversity and above all suitability to serve in JSC. Open and competitive nomination was not a requirement under article 171(2)(h) of the Constitution.
  11. The National Assembly had a constitutional obligation to ensure that there was public participation in the case of the appointment of the woman and the man who were to represent the public. The relevant Committee of the National Assembly invited public views on the two Presidential nominees. The National Assembly not only facilitated but also conducted public participation during the approval process of the 3rd and 4th Interested Parties.
  12. The integrity issue raised against the 4th Interested Party was that he was a politician who should not serve as a member of the JSC. There was evidence that the 4th Interested Party served as a Cabinet Secretary but there was no evidence that he was a politician. Without evidence, it was difficult for the Court to conclude that the 4th Interested Party was a politician who should not serve in the JSC.
  13. Against the appointment of the 3rd Interested Party three memoranda were received. Only one was accepted as the other two were rejected for failure to comply with procedural requirements. The accepted memorandum made allegations against the 3rd Interested Party relating to nepotism, tribalism, mismanagement of resources and the fact that there were a number of suits in court.
  14. In relation to her work and actions while working as Vice Chancellor of Kenyatta University, the 3rd Interested Party was investigated by the EACC and absolved from blame. It was not for the Court to consider the issue of the 3rd Interested Party's integrity; the National Assembly considered it and cleared her. The mandate of the Court was to check and be satisfied that the National Assembly acted in accordance with the Constitution and the law, but not to substitute the decision of the National Assembly with its own. The National Assembly did not fail to comply with the Constitution when approving the 3rd Interested Party.
  15. Where a statute or statutory provision was challenged on grounds of being inconsistent with the Constitution, the statute or the statutory provision concerned would be laid alongside the article of the Constitution said to be violated and thereafter the Court would determine whether indeed there was inconsistency. The Court would also consider whether the purpose of enacting the statute or the effect of implementing the statute was unconstitutional. That could lead to a declaration of constitutional invalidity.
  16. Section 15(2) of the Judicial Service Act had its constitutionality challenged on grounds that it failed to provide for open, transparent, and merit based nomination of members to the Judicial Service Commission. Article 171(2) (g) of the Constitution required the Public Service Commission to nominate its representative to JSC but it did not provide for how that should be done. Similarly, the Judicial Service Act was silent on the procedure for identifying the nominee. The nominating body was free to use its internal mechanism or process to arrive at its nominee.
  17. Article 10 of the Constitution provided for transparency and accountability in public affairs as well as public participation in public appointments. However, not in every public appointment required open recruitment. In the case of the person contemplated under article 171(2)(g) of the Constitution, the Constitution gave the mandate to the Public Service Commission to nominate or designate a person to represent it in JSC. The Constitution left the discretion to the Public Service Commission to decide on whom to nominate. A reading of article 171(2)(g) and section 15(2) of the Judicial Service Act, did not show any inconsistency in so far as nomination of its representative to JSC was concerned.
  18. Nominations by the President under article 171(2)(h) were discretionary and the Court could only interfere where the discretion was not exercised properly. There was no constitutional inconsistency based on the fact that section 15(2) of the Judicial Service Act failed to provide for an open and transparent manner of appointing members to represent the public in the JSC.

Orders:-

  1. A declaration was issued to the effect that there was no requirement for approval of the 2nd Interested Party, the nominee of Public Service Commission under article 171(2)(g) of the Constitution; and the approval by the National Assembly made in that regard was of no legal effect.
  2. The rest of the petition was, however, dismissed with no order as to costs.
SUCCESSION LAW Children born within 280 days after the separation of a husband and wife are legitimate children and are beneficiaries to the estate of their deceased parents

Ngengi Muigai and another v Peter Nyoike Muigai and 4 others
Civil Appeal No. 13 & 56 of 2007 consolidated with
Court of Appeal at Nairobi
P N Waki, P O Kiage, K M'inoti, JJA
June 8, 2018
Reported by Felix Okiri

Download the Decision

Succession Law-validity of a will-attestation of a will-attestation by witnesses-claim that a will ought to be attested by two or more witnesses at the same time-whether a will made by a testator was invalid if a testator’s signature was not acknowledged in the presence of two or more witnesses at the same time-Law of Succession Act, section 11; Halsbury’s Laws of England Vol. 50, paragraph 261
Succession Law-validity of a will-testamentary freedom-where a will was drawn in the 1st born son’s house-claim that the will was as a result of undue influence- whether a will made in the home of a testator relative was invalid as it may have been made through undue influence-Law of succession Act
Evidence Law-presumption of legitimacy -proof of legitimacy-where children were born after a man and wife separated-whether the 1st Appellant and 1st Respondent were children of the deceased, as they were born after the deceased and his first wife had separated -Evidence Act, section 118; Law of succession Act, section 3(2), 26 and 29(a)

Brief facts:
The Trial Court held that the deceased had the mental and physical capacity to make a valid Will. The Trial Court also found that the 2nd Respondent who was a former wife, was a proper beneficiary; that the 5th Respondent was born within two hundred and eighty days after separation of the mother and father in circumstances covered by section 118 of the Evidence Act and would therefore be a dependant. The trial court proceeded to make reasonable provisions for the dependants left out in the will.
Those findings of the Trial Court precipitated the instant appeal where Appellants impugned the Trial Court decision for disregarding evidence and erroneously finding that the 2nd Respondent and 5th Respondent were dependants of the deceased and were therefore entitled to the deceased's estate.

Issues:

  1. Whether a will made by a testator was invalid if a testator’s signature was not acknowledged in the presence of two or more witnesses at the same time.
  2. Whether a will made in the home of a testators relative was invalid as it may have been made through undue influence.
  3. Whether children born within 280 days after the separation of a husband and wife were legitimate children and were beneficiaries to the estate of their deceased parents.Read More..

Relevant Provisions of the Law
Law of Succession Act
Section 5(1)
"...Any person may dispose of all or any of his property in a manner he deems fit and a testator may change his mind at any time before his death as to how he intends that his property should be disposed of."

Section 11
No written will shall be valid unless -
(a) the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;
(b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
(c) the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

section 29
"(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
(b) such of the deceased's parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
(c)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

Evidence Act
Section 118
“The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”.

Halsbury’s Laws of England Vol. 50
Paragraph 261
'The testator’s signature must be made or acknowledged by him in the presence of two or more witnesses present at the same time. In the testators presence, each witness must attest and sign the will.’

Held:

  1. The formal requirements of a valid will were provided for in section 11 of the Law of Succession Act (LSA). The Trial Court had examined the evidence of the two witnesses on attestation and was satisfied that although the two may not have been present at the same time with the deceased as he signed the will, the provisions of section 11(c) allowed the witnessing of a will by the two witnesses at different times provided each signed in the presence of the testator when the testator acknowledged his signature. In view of the statutory provision, the doctrine propounded in Halsbury's Laws that the testator’s signature had to be made or acknowledged by him in the presence of two or more witnesses present at the same time was found to be of doubtful application in Kenya.
  2. An examination of the impugned will which was produced in evidence proved that the will was in compliance with section 11 of the LSA.
  3. Testamentary freedom under section 5(1) of LSA was not absolute since, the will might be declared void if the making of it was caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake. However, there was nothing unusual for an African 1st born son to take into residence and care for his aging father. It was not only good manners but also accorded with custom. There was also no evidence that other members of the deceased's family sought to, but were prevented from visiting the deceased in the Appellant’s house as often as they chose to.
  4. The Deceased and his first wife parted company in June, 1942 and she went to live with her parents. The 1st Appellant was born on February 10, 1943. There was no evidence that the Deceased’s first wife remarried after leaving the Deceased. The 5th Respondent was born within 8 months or about 240 days after the departure of the deceased’s first wife. The 5th Respondent, having been born within 280 days of the separation of his parents, was the child of the Deceased.
  5. The testamentary freedom under section 5(1) of LSA was checked by section 26 of LSA which ensured that some beneficiaries of the estate referred to as dependants who were not adequately provided for by will or intestacy were catered for. The meaning of such persons was in section 29 of the LSA Act.
  6. A child as defined under section 3(2) of LSA, was, a biological child as well as any child whom a man had expressly recognized or accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility was to be an automatic dependant under section 29(a). The 1st Appellant, whom was found to have been a biological son, although the Deceased had not expressly recognized him as such, was entitled to automatic reasonable provision. The 1st Respondent, on the other hand, would also have been entitled to reasonable dependency provision if he could prove that the Deceased had taken him into the family as his own child and was maintaining him immediately prior to his death. However, there was no evidence that the 1st Respondent was financially or otherwise supported by the Deceased immediately before his death to warrant a positive finding on dependency.

Appeal No. 13 of 2007 partly allowed and Appeal No. 56 of 2007 dismissed
Orders

  1. The orders granted by the Trial Court in the 1st Respondent’s favour were set aside in entirety.
  2. The fact that the life interest of the 2nd Respondent was spent, the acreage of the Ichaweri Farm in Gatundu LR No. 7785/18, would vest in the 1st Appellant only but would be reduced from 10 to 5 acres.
  3. The order for the Runda house to vest in the 1st Appellant would remain.