Out-of-court settlement agreements in sexual violence cases resulting in the non-prosecution of those likely to be culpable are unconstitutional
Headnote: The petition interrogated whether the police had powers to facilitate out of court settlements for victims of sexual offences. The court held that police neither had powers to enter into out-of-court settlements in sexual offences nor were they permitted in law to sanction such arrangements. The court further held that out-of-court settlement agreements in sexual offences, apart from infringing on the victims’ rights and fundamental freedoms guaranteed under articles 27, 28 and 29(c) of the Constitution, the agreements contravened section 40 of the Sexual Offences Act and international instruments in which Kenya was a State party.

IW & another v Omondi & 3 others (Constitutional Petition E416 of 2021) [2023] KEHC 26907 (KLR) (Constitutional and Human Rights) (15 December 2023) (Judgment)
Neutral citation: [2023] KEHC 26907 (KLR)

High Court at Nairobi
AC Mrima, J
December 15, 2023
Reported by Kakai Toili
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Constitutional Law – alternative dispute resolution (ADR) mechanisms – ADR mechanisms in sexual offences matters – claim that out-of-court settlement agreements in sexual offences cases infringed on the victims’ rights - whether out-of-court settlement agreements in sexual offences cases resulting in the non-prosecution of those likely to be culpable was unconstitutional for infringing on the victims’ rights - whether the police had powers to enter into out-of-court settlements or sanction such arrangements in sexual offences matters – Constitution of Kenya, 2010, articles 27, 28 and 29(c); Sexual Offences Act, Cap 63A, section 40.
Jurisdiction – jurisdiction of the Independent Policing Oversight Authority (IPOA) and the Internal Affairs Unit of the Kenya Police Service (IAU) – jurisdiction to adjudicate matters seeking orders of declaration of violation of human rights - whether IPOA and the IAU were appropriate forums for adjudication of a matter seeking among other orders declarations of violation of human rights - Independent Policing Oversight Authority Act, Cap 86, section 3; National Police Service Act, Cap 11a, section 87.

Brief facts:
The petitioners sought to challenge constitutionality of the actions of the respondents. The petitioners pleaded that the actions of the 2nd and 3rd respondents constituted failure to protect and uphold the 1st petitioner’s freedom and security of the person, the right to equality and not to be subjected to any form of violence from either public or private sources. The 1st petitioner claimed that the 1st respondent raped her and that, in the company of her boyfriend she reported the incident to Mlolongo Police Station and her case was assigned to the 2nd respondent to conduct investigations.
The 1st petitioner further claimed that the 2nd respondent asked her to make changes in her written statement to the effect that the incident happened at Syokimau, not Madaraka where it actually happened. Further, the 2nd respondent advised the 1st petitioner that the easiest way out was for the 1st respondent to pay her so that the police would not forward the case to the Director of Public Prosecutions (DPP). To that end, the 1st petitioner stated that out of frustration she conceded to be paid the sum of Kshs 130,000 in four instalments. The petitioner averred that the agreement was put down in paper and she signed it, with her sister as the witness and the 1st respondent also signed it. It was claimed that the 2nd respondent took a photograph of the agreement and did not allow anyone to take a copy or photograph of it.

Issues:
  1. Whether out-of-court settlement agreements in sexual offences cases resulting in the non-prosecution of those likely to be culpable was unconstitutional for infringing on the victims’ rights.
  2. Whether the police had powers to enter into out-of-court settlements or sanction such arrangements in sexual offences matters.
  3. Whether the Independent Policing Oversight Authority and the Internal Affairs Unit of the Kenya Police Service were appropriate forums for adjudication of a matter seeking among other orders declarations of violation of human rights.
Held:
  1. Where there were alternative avenues legally provided for in dispute resolutions, there should be postponement of judicial consideration of such disputes until after the available avenues were fully adhered to or unless it was adequately demonstrated that the matter under consideration fell within the exception to the doctrine of exhaustion.
  2. The Independent Policing Oversight Authority Act ( was an Act of Parliament to provide for civilian oversight of the work of the police, to establish the Independent Policing Oversight Authority, to provide for its functions and powers and for connected purposes. Section 3 of the Act established the Independent Policing Oversight Authority (the Authority) as a body corporate with perpetual succession and a common seal. The objectives of the Authority were threefold.
    1. to hold the police accountable to the public in the performance of their functions;
    2. to give effect to the provision of article 244 of the Constitution that the police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
    3. to ensure independent oversight of the handling of complaints by the police service.
  3. Section 87 of the National Police Service Act established the Internal Affairs Unit (the Unit). The functions of the Unit were to receive and investigate complaints against the police, to promote uniform standards of discipline and good order in the service and to keep a record of the facts of any complaint or investigation made to it. In finding an officer culpable, the Unit may recommend to the Inspector-General the interdiction of an officer, the suspension of an officer, the administration of a severe reprimand or a reprimand to control or influence the pay, allowances or conditions of service of an officer or any other lawful action which may include the prosecution of the officer.
  4. The Inspector-General may in exceptional cases and in the interest of the service, authorise the Unit to undertake disciplinary proceedings against any officer who had been a subject of its investigations, and may for that purpose direct a Deputy Inspector-General or the Director of the Unit to appoint an officer to preside over such proceedings.
  5. By placing the prayers sought in the petition against the functions and powers of the Authority and the Unit, the petitioners would not be able to get the redress they wished before the Authority and the Unit since such entities did not have the mandates to render such reliefs. As such, the petitioners would not be accorded an appropriate forum with the quality of audience which was proportionate to the interests they wished to advance in the matter. In other words, given the nature of the reliefs sought in the petition, the Authority and the Unit were inappropriate forums for adjudication of the dispute therein. Therefore, the petition presented the exceptions to the doctrine of exhaustion. The jurisdictional claim raised by the respondents failed. The court had the requisite jurisdiction over the petition.
  6. The police neither had powers to enter into out-of-court settlements in sexual offences nor were they permitted in law to sanction such arrangements . Section 40 of the Sexual Offences Act accorded the Attorney-General (the DPP) the absolute power to decide whether police investigations on sexual offences should be discontinued. That power was anchored under article 157 of the Constitution.
  7. Section 7(1)(f) of the IPOA Act only allowed the Authority to engage in mediation and reconciliation in matters which were not of serious nature. Out-of-court settlement agreements in sexual offences resulting in the non-prosecution of those likely to be culpable had far-reaching effects on the victims. Apart from infringing on the victims’ rights and fundamental freedoms guaranteed under articles 27, 28 and 29(c) of the Constitution, the agreements contravened section 40 of the Sexual Offences Act and international instruments in which Kenya was a State party.
  8. Parties were bound to prove what they alleged. The matter before court was a constitutional petition. Like other disputes, the conduct of constitutional petitions was generally governed by the Constitution and the law. Article 159(2)(d) of the Constitution called upon courts and tribunals to administer justice without undue regard to procedural technicalities. The practice and procedure in constitutional petitions was further provided for under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules).
  9. Rule 20(1) of the Mutunga Rules was on the manner in which constitutional petitions ought to be heard. Such petitions may be heard by way of affidavits or written submissions or oral evidence. Rule 20(3) of the Mutunga Rules provided that a court may upon application or on its own motion direct that the petition or part thereof be heard by oral evidence. Rule 20(4) and (5) of the Mutunga Rules provided for the summoning and examination of witnesses. The conduct of constitutional petitions was also guided by various laws. For instance, the Evidence Act applied to matters generally relating to evidence.
  10. Although article 22(1) of the Constitution gave every person the right to initiate proceedings claiming that a fundamental right or freedom had been denied, violated or infringed or threatened, a party invoking that article had to show the rights said to be infringed, as well as the basis of his or her grievance. The petition was heard by way of reliance on the pleadings, affidavit evidence and the exhibits thereto. Therefore, apart from the contents of the pleadings and affidavits, there was no more to that.
  11. The existence of the out-of-court settlement agreement was hotly contested. There were allegations that the agreement was in writing, but the parties were not given copies after signing it. Either way, whether the alleged agreement was in writing or otherwise, the nature of that matter called for examination of the parties and witnesses over the existence of the agreement. Therefore, the evidence at hand seemed to be inadequate to enable the court to make a positive finding on the existence of such an agreement. The existence of the out-of-court settlement agreement was, hence, not proved.
  12. Having failed to prove the existence of the out-of-court settlement agreement, coupled with the fact that the 1st respondent was accordingly charged in court over the 1st petitioner’s complaint, then the allegations of infringement of the 1st petitioner’s rights and fundamental freedoms were rendered unsustainable. Such allegations lacked any legal leg to stand on. In the event the petitioners had any issues over the criminal proceedings against the 1st respondent, then that could only be subject of other distinct proceedings.
Petition partly allowed.
Orders
  1. A declaration was issued that out-of-court settlement agreements in sexual violence cases resulting in the non-prosecution of those likely to be culpable infringed the victim’s rights and fundamental freedoms as guaranteed in articles 27, 28 and 29(c) of the Constitution. Further, such agreements infringed the provisions of international instruments in which Kenya was a State party including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), Declaration on the Elimination of Violence against Women (DEVAW), the famous Maputo Protocol, the Committee on the Elimination of Discrimination against Women (CEDAW), the African Charter on Human and People’s Rights. Such agreements also contravened section 40 of the Sexual Offences Act.
  2. A declaration issued that out-of-court settlement agreements in sexual violence cases resulting in the non-prosecution of those likely to be culpable were unconstitutional and should not be entered into by the police or otherwise except under the direction of the Director of Public Prosecutions while acting within the Constitution and the law.
  3. The rest of the prayers in the petition were dismissed.
  4. Parties shall bear their respective costs.


Kenya Law
Case Updates Issue 035/23-24
Case Summaries
CIVIL PRACTICE AND PROCEDURE An appellant that had their notice of appeal withdrawn by the Supreme Court for failure to obtain certification could file a subsequent notice of appeal after obtaining certification.

Headnote:      The case under consideration involves an application for the review of a decision by the Supreme Court, grounded in the provisions of the Supreme Court Act. The applicant sought to challenge the Supreme Court's ruling by invoking section 21A of the Supreme Court Act, which outlined specific circumstances under which the Supreme Court may review its decisions. However, the applicant failed to demonstrate that the case fell within these exceptional circumstances as stipulated in Section 21A, leading to the conclusion that this section was not applicable to the instant case. Furthermore, the applicant attempted to seek redress under Section 23(2C) of the Supreme Court Act, which allows for the review of decisions made by a single judge or two judges of the Supreme Court by a larger bench of five or more judges. The Supreme Court held that the applicant had not secured this certification, as the motion for certification was still pending before the Court of Appeal at the time of filing the appeal. That procedural lapse led the Supreme Court to deem the notice of appeal as withdrawn, although it was noted that this would not preclude the applicant from obtaining a fair hearing or presenting before the Supreme Court if the certification motion were to be subsequently granted.

Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others (Application E020 of 2023) [2023] KESC 110 (KLR) (28 December 2023) (Ruling)
Neutral Citation: [2023] KESC 110
MK Koome, CJ and V-P, MK Ibrahim, SC Wanjala, NS Ndungu, and W Ouko, SCJJ

Reported by John Ribia
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Civil Practice and Procedure – review – review of a decision of a single judge of the Supreme Court – requirement for appeals on grounds of general public importance to be certified by the Court of Appeal – where an appellant field a notice of appeal before the Supreme Court without obtaining certification - whether an applicant that had not obtained certification by the Court of Appeal under prior to filing a notice of appeal at the Supreme Court had grounds review a decision to withdraw the notice of appeal - whether an appellant that had their notice of appeal withdrawn by the Supreme Court for failure to obtain certification could file a subsequent notice of appeal after obtaining certification – Constitution of Kenya, 2010 article 163(4)(b) Supreme Court Act section 21A and 23(2)(C)
Brief Facts
The applicant sought for the Supreme Court to review and set aside the decision of a single Judge of the Supreme Court. The applicant sought to appeal a decision of the Court of Appeal and as such filed a notice of appeal. The notice was however filed without obtaining certification from the Court of Appeal. The Supreme Court withdrew the notice of appeal on grounds that the applicant had not sought certification from the Court of Appeal before filing the notice of appeal. Aggrieved the applicant filed the instant application to review the decision of the Supreme Court. 

Issues:

  1. Whether an applicant that had not obtained certification by the Court of Appeal under prior to filing a notice of appeal at the Supreme Court had grounds review a decision to withdraw the notice of appeal.
  2. Whether an appellant that had their notice of appeal withdrawn by the Supreme Court for failure to obtain certification could file a subsequent notice of appeal after obtaining certification. Read More..

Held:

  1. Section 21A of the Supreme Court Act delineated exceptional circumstances under which the Supreme Court could review its decision. The applicant had not demonstrated how the order it sought to review fell within the said exceptional circumstances. Section 21A was not applicable in the instant case.
  2. Section 23(2)(C) of the Supreme Court Act  provided that a party aggrieved by the decision of a single judge or two judges may apply for review of the decision by five or more judges of the court. The applicant had not obtained certification by the Court of Appeal under article 163(4)(b) of the Constitution prior to filing the notice of appeal.  The certification motion was still pending before the Court of Appeal.  Since the certification motion was yet to be determined that time for filing the appeal, and since at the time of making the decision the Supreme Court was not made aware, the Supreme Court could not be faulted for deeming the notice of appeal as withdrawn.
  3. However, the order by the Supreme Court would not prejudice the applicant from getting a fair hearing or audience before the Supreme Court should its certification motion be successful. In the event that certification was issued, the applicant would be at liberty to move the court either by filling a notice of appeal pursuant to the certification or as the case may be under the relevant provision of law.

Application dismissed; each party was to bear its own costs.

LAW OF EVIDENCE

The Supreme Court does not have jurisdiction to entertain an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal.

Headnote:      The main issue before the Supreme Court was whether the Supreme Court had jurisdiction to entertain an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal. The Supreme Court held that the original dispute between the 1st to 4th respondents and the 5th and 6th respondents having been settled in a judgment rendered, there were no proceedings to which the applicant could properly join four years later when the ruling by the first bench of the Court of Appeal was rendered. 

 Everton Coal Enterprises Limited v Karanja & 5 others (Application E026 of 2023) [2023] KESC 98 (KLR) (10 November 2023) (Ruling)
Neutral Citation: [2023] KESC 98
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola, and W Ouko, SCJJ
Reported by John Ribia


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Jurisdiction – jurisdiction of the Supreme Court - an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal - whether the Supreme Court had jurisdiction to entertain an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal - Supreme Court Rules 2020 rule 33(5)
Brief Facts
The applicant sought for several orders from the Supreme Court related to a judgment by the Court of Appeal at Nairobi in Civil Appeal No 172 of 2010. The applicant requested the Supreme Court to extend time and grant leave to file a Notice of Appeal against the Court of Appeal's 2016 judgment; to review the Court of Appeal's refusal to grant certification in 2023, certify the intended appeal as a matter of general public importance, grant leave to appeal against the 2016 Court of Appeal judgment, and determine the costs of the application in the intended appeal.
The initial dispute involved a property transaction and breach of sale agreement concerning LR No 10090/23. The parties involved were the 1st to 4th respondents and the 5th and 6th respondents (an advocate and his wife). The advocate, representing a vendor in a prior legal case, was alleged to have entered into a sale agreement for the same property. A sale agreement was made between the deceased vendor (represented posthumously by the 1st to 4th respondents) and the 5th and 6th respondents. Legal disputes followed, leading to various court cases and appeals.
The Court of Appeal revoked the transfer of the property to the 5th and 6th respondents, citing legal irregularities including conflict with the Advocates Act and issues surrounding the Land Control Board consent. The applicant was not initially a party to the proceedings but was joined as an interested party after the Court of Appeal judgment, seeking to challenge the adverse order affecting its title to the property.

Issue:

  1. Whether the Supreme Court had jurisdiction to entertain an application for review brought by a party who did not participate in the proceedings that culminated in the impugned judgment of the Court of Appeal. Read More...

Held:

  1. Jurisdiction was everything and that without it, a court had no power to take one more step; and that a court’s jurisdiction flows from either the Constitution or legislation or both. The applicant had properly invoked the jurisdiction of the Supreme Court.
  2. The Supreme Court was guided by article 163(5) of the Constitution, section 15B of the Supreme Court Act, rule 33 of the Supreme Court Rules, 2020 and past decisions of the court on the subject. Specifically, where the Court of Appeal certified or declined to certify a matter as one of general public importance, rule 33 aforesaid granted an aggrieved party the right to apply to the Supreme Court for review. Such application must be made within fourteen days. Further, by rule 33 (5) an application for certification shall only be limited to the parties in the original cause.
  3. Though joined, the applicant was not a party to the proceedings in the Court of Appeal having been joined post-judgment, yet a joinder contemplated a situation where proceedings were still pending before the court and in terms of rule 5(d)(ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which was in pari materia with order 1 rule 10(2) of the Civil Procedure Rules, a party would only be added to on-going proceedings in order to enable the court adjudicate fully upon and settle all the questions involved in the particular proceedings before it.
  4. Noting that the original dispute between the 1st to 4th respondents and the 5th and 6th respondents having been settled in a judgment rendered on July 29, 2016, there were no proceedings to which the applicant could properly join four years later on June 5, 2020, when the ruling by the first bench of the Court of Appeal was rendered. 
  5. Convinced that the issues the applicant wished to raise before the Supreme Court were not those determined by the courts below, where the sole issue was always whether the 5th and 6th respondents legally acquired title to the suit property. Whether or not the applicant was an innocent purchaser for value, was never pleaded, canvassed or determined. From the record, the issue was raised, according to the Court of Appeal, from the Bar, without any evidence in support. At that point, the court had no opportunity or material from which to determine the question. Issues like the proprietary rights of women were never the subject of determination before both superior courts below.
  6. The applicant had not satisfied the court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case and had a significant bearing on the public interest. All the court saw was a spirited attempt by the 5th and 6th respondents through the applicant to have a second bite at the cherry. The grounds listed for consideration in the intended appeal, were those that would have only aggrieved the parties before the Court of Appeal.  A party must only elect one avenue; either to seek a review or lodge an appeal, they could not seek both as that defeats the essence of the finality of litigation.
  7. The applicant lacked the locus standi and was not competent to seek certification before the Supreme Court. As a corollary, the Supreme Court lacked the jurisdiction to determine the application for certification.

Application dismissed.
Orders: -

  1. The originating motion dated July 21, 2023 and filed on August 4, 2023 was dismissed.
  2. The decision of the Court of Appeal delivered on July 7, 2023 denying leave to appeal to the Supreme Court was affirmed.
  3. The costs of the application were to be borne by the applicant.