Granting conservatory orders that prevent the Deputy President Nominee from assuming office would result in a de facto suspension of article 147 (2) of the Constitution
Headnote: The main issue revolved around the application for conservatory orders preventing the President and the National Assembly from filling the vacancy in the Office of the Deputy President. The High Court noted that granting the conservatory orders meant that the 1st petitioner remained impeached under Article 145(7) and the Deputy President nominee could not assume office. Allowing those orders to stand would leave the office of the Deputy President vacant, resulting in what would be a de facto suspension of Article 147(2) of the Constitution.

Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties) (Constitutional Petition E565 of 2024 & Petition E013, E014, E015, E550, E570 & E572 of 2024 (Consolidated)) [2024] KEHC 13473 (KLR) (Constitutional and Human Rights) (31 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13473 (KLR)
High Court at Nairobi (Milimani Law Courts)
EKO Ogola, AC Mrima & FG Mugambi, JJ
October 31, 2024
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Jurisdiction – jurisdiction of the Supreme Court – original and exclusive jurisdiction of the Supreme Court – jurisdiction of the Supreme Court to determine disputes arising from an impeachment process as a court of first instance – whether the Supreme Court had original and exclusive jurisdiction to determine disputes arising from an impeachment process – Constitution of Kenya, articles 2 (1), 2 (4) and 163 (3)
Jurisdiction­– jurisdiction of the high Court – exclusive and original jurisdiction of the High Court – jurisdiction of the High Court to determine disputes regarding the impeachment process of a Deputy President – whether the High Court had jurisdiction to determine whether the merits and procedures of an impeachment process of a Deputy President aligned with Constitutional requirements – Constitution of Kenya, articles 144, 145, and 165 (3)
Constitutional Law – separation of powers viz-a-viz the doctrine of justiciability – political question doctrine – whether the political question doctrine should apply, thereby bar the Court from intervening in what might be considered a matter reserved for the legislative or executive branches – whether the issue of the impeachment of the Deputy President fell within the category of cases where the concept of non-justiciability would prevent the High Court from hearing and deciding the matter – Constitution of Kenya, articles 23, 160 and 165 (3) (d) (ii)
Constitutional Law – the Executive – the Office of the Deputy President – vacancy in the office of the Deputy President – where the impeachment of the Deputy President rendered the office vacant – where an ongoing dispute regarding the impeachment of the Deputy President could render the office of the Deputy President for a prolonged period – whether the Constitution envisioned any scenario in which the office of the Deputy President would remain vacant – Constitution of Kenya, articles 146, 147 (2) and 150 (2)
Constitutional Law– conservatory orders – principles considered when granting conservatory orders – whether the matter disclosed a prima facie case that raised constitutional issues that required further judicial interrogation – whether grant of conservatory orders, which prevented the Deputy President nominee from assuming office, would either serve or prejudice public interest – whether it would be impossible to remove the appointee to the Office of the Deputy President, even if the petitions were successful, if conservatory orders were not granted
Constitutional Law – definition – prejudice – damage or detriment to one’s legal rights or claims - Black’s Law Dictionary, 10th Edition, Thomson Reuters, page 1370
Constitutional Law– definitions – Public interest – the general welfare of a populace considered as warranting recognition and protection. Something in which the public as a whole has stake especially in something that justifies government regulation - Black’s Law Dictionary 10th Edition, page 1425
Constitutional Law– definition – justiciability – a matter that is “proper to be examined in courts of justice” or “a question as may properly come before a tribunal for decision – Black’s Law Dictionary, 10th Edition, page 943-944

Brief Facts
On October 17, 2024, the Senate voted to confirm a resolution by the National Assembly and impeached the 1st petitioner. Consequently, on October 18, 2024, the National Assembly approved the President’s nomination of Prof. Kithure Kindiki to fill the vacancy in the Office of the Deputy President. On October 18, 2024, the High Court, (C. Mwita, J), granted conservatory orders to stay the implementation of the Senate’s resolution and suspend the appointment of the 1st petitioner’s replacement until October 24, 2024, when the matter was set to be mentioned before the instant Bench. By operation of law, and in the absence of any extension, that conservatory orders lapsed, leaving the conservatory orders that had been issued in Kerugoya HCPET E015/2024 on October 18, 2024 by R. Mwongo, J, still subsisting. That was the pretext against which the instant Ruling was delivered.
A second application dated October 18, 2024 was filed by the 1st petitioner, equally seeking conservatory orders against the President and the National Assembly from filling the vacancy in the Office of the Deputy President. Following directions issued by the High Court, two other applications were filed, the application dated October 18, 2024 filed in HCPET E565/2024 by the 5th respondent (supported by the 3rd and 4th respondents) and the application dated 18th October 2024 filed in HCPET E565/2024 by the 2nd respondent were treated as responses to the applications of October 18, 2024. Those applications sought to set aside, lift and vary the conservatory orders.

Issues
  1. Whether the Supreme Court had original and exclusive jurisdiction to determine disputes arising from an impeachment process.
  2. Whether the High Court had jurisdiction to determine whether the merits and procedures of an impeachment process of a Deputy President aligned with Constitutional requirements.
  3. Whether the issue of the impeachment of the Deputy President fell within the category of cases where the concept of non-justiciability would prevent the High Court from determining the matter.
  4. Whether the Supreme Court had original and exclusive jurisdiction to determine disputes arising from an impeachment process.
  5. Whether the High Court had jurisdiction to determine whether the merits and procedures of an impeachment process of a Deputy President aligned with Constitutional requirements.
  6. Whether the issue of the impeachment of the Deputy President fell within the category of cases where the concept of non-justiciability would prevent the High Court from hearing and deciding the matter.
  7. Whether the matter disclosed a prima facie case that raised constitutional issues that required further judicial interrogation.
  8. Whether grant of conservatory orders, which prevented the Deputy President nominee from assuming office, would either serve or prejudice public interest.
  9. Whether it would be impossible to remove the appointee to the Office of the Deputy President, even if the petitions were successful, if conservatory orders were not granted.

Held
  1. Article 2(1) of the Constitution was unequivocal, that no person or state organ was above the Constitution. It further affirmed that all state authority must be exercised in strict conformity with constitutional provisions. By virtue of Article 2(4), any act or omission that violated the Constitution was both unlawful and invalid. Those provisions established a clear basis on which the actions and omissions of all state organs must be scrutinized for their constitutionality.
  2. The final version of the 2010 Constitution marked a clear departure from previous constitutional drafts regarding the jurisdiction of the Supreme Court. Specifically, the provision granting the Supreme Court exclusive and original jurisdiction over disputes arising from the impeachment of the President was deliberately omitted. The Supreme Court’s jurisdiction was strictly re-defined under Article 163(3). Hence, the people of Kenya did not intend to grant such jurisdiction to the Supreme Court. Had that been the intent, the Constitution would have expressly conferred that authority in its final form.
  3. The Supreme Court acknowledged that its jurisdiction, as outlined in the Constitution, was exhaustive. That implied that any attempt to expand its jurisdiction beyond what was expressly provided would contradict the Constitution's intent. Even with regard to the special jurisdiction previously conferred by Section 14 of the Supreme Court Act (repealed by section 15 of Act No. 26 of 2022), the Supreme Court was unequivocal in affirming that the provision did not grant Parliament the authority to extend the Court’s jurisdiction beyond what was contemplated by the Constitution.
  4. The jurisdiction to hear disputes arising from impeachment did not rest with the Supreme Court within the realm of original and exclusive jurisdiction. Instead, such jurisdiction was exercisable within the Supreme Court’s appellate jurisdiction.
  5. The High Court was vested with a broad scope of somewhat original and residual jurisdiction, under Article 165(5), which granted the court jurisdiction over all matters except those explicitly reserved for the Supreme Court or courts of equal status. That broad jurisdiction demonstrated a deliberate intent by the drafters of the 2010 Constitution to empower the High Court to address matters not expressly covered in the Constitution, ensuring that no legal issues, including impeachment proceedings, fell outside the Court's purview. By vesting the High Court with such extensive authority, the Constitution also guaranteed that gaps in constitutional coverage were filled, allowing the Court to adjudicate on significant issues that could arise within the evolving landscape of governance.
  6. The jurisdiction conferred under Article 165(3) extended to adjudicating any alleged infringement of the Bill of Rights and interpreting the Constitution. In that context, Article 165(3)(d)(ii) expressly granted the High Court the authority to determine whether any act purporting to have been done under the authority of the Constitution or any law was inconsistent with, or in contravention of, the Constitution. That reinforced the High Court’s pivotal role as the guardian of constitutional integrity, ensuring that all actions by state organs, or individuals, were in full compliance with constitutional dictates.
  7. The drafters of the Constitution expressly intended to exclude the High Court from hearing appeals related to tribunals established under Article 144. Given that explicit exclusion, and against the foregoing discussion, if the drafters had similarly intended to bar the High Court from determining disputes under Article 145, they would have done so with equal clarity. Nothing would have been simpler than to expressly exclude such jurisdiction in the same manner. The absence of such an exclusion with respect to Article 145 strongly suggested that the drafters intended for the High Court to retain jurisdiction over those matters.
  8. The impeachment of the Deputy President was a constitutional process, as outlined in Article 145 of the Constitution. The authority to determine whether the merits and procedures of such an impeachment process align with constitutional requirements fell squarely within the jurisdiction of the High Court, as provided under Article 165(3)(d)(ii). The role of the Courts in an impeachment process was reiterated by the Supreme Court in Sonko v Clerk, County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 26 (KLR). While the referenced decision pertained to the impeachment of a Governor, the same constitutional principles applied to the impeachment of a Deputy President. Accordingly, the High Court had the jurisdiction to sit and determine the matter before it.
  9. It was evident from the pre-2010 Constitution drafts that the people of Kenya clearly intended for the impeachment process to be a justiciable matter. Each constitutional draft contained provisions affirming that intent. The people of Kenya sought to move beyond a past where the judiciary was often marginalized or bypassed in efforts to check governmental excesses. Instead, they envisioned a new constitutional order in which all branches of government would be held accountable and subject to comprehensive constitutional oversight. That aspiration was central to establishing a balanced system that ensured no arm of government operated beyond scrutiny.
  10. The High Court was not convinced, against a wholistic reading of the Constitution, that there was any intention to deliberately place the impeachment power on the legislature with no judicial involvement. To hold otherwise would be to create an absurdity whereby the dictates of the constitution under articles 23, 160 and 165(3)(d)(ii) would be defeated.
  11. Kenya’s system emphasizes judicial oversight through the Judicial Service Commission which was designed to limit political influence and promote greater judicial independence. There was no textually demonstrable constitutional commitment of the issue of impeachment solely, to any political department or institution. Drawing analogies, the fact that the American context states that the Senate sits to solely try impeachment disputes was a major departure from the 2010 Constitution. Even though the requirements for the two thirds vote and the taking of an oath were identical, the procedure and provisions of the Constitution left no doubt that the Senate was not the sole determinant of the dispute. There were instances in which the Courts would and should interfere with political processes.
  12. The crux of the petitioners’ case centered on key questions, including whether due process was followed by the National Assembly and the Senate in the impeachment of the 1st petitioner, and whether the 1st petitioner was afforded sufficient time to prepare his defense against the impeachment charges. Those issues struck at the heart of constitutional and procedural fairness, raising concerns about the extent to which legislative bodies adhered to the standards of due process as outlined in the Constitution.
  13. The High Court was called upon to examine whether the procedural safeguards required by the Constitution were observed during the impeachment process, and whether any potential lapses could render the process flawed or unconstitutional. Such an inquiry would involve a careful review of the actions taken by the National Assembly and the Senate to determine if the principles of due process and fair administrative action were upheld.
  14. The political question doctrine could not oust the High Court’s jurisdiction as granted under Article 165(3). Article 165(3) conferred upon the High Court the authority to hear and determine questions regarding the interpretation of the Constitution and the legality of any acts or omissions by State organs. That provision underscored the High Court's critical role in ensuring constitutional compliance, even in politically charged matters.
  15. The judiciary's role in impeachment matters was not to take over legislative functions but to ensure that such processes were conducted in a manner that respected constitutional norms and procedural fairness. It reinforced the idea that while the doctrine of separation of powers was crucial, it did not preclude judicial oversight when fundamental constitutional principles were at risk.
  16. The Constitution of Kenya had clearly delineated independent and distinct paths for the three arms of government. Accordingly, the High Court's intervention in the matter before it was warranted, through a very narrow window that allowed for oversight in cases where constitutional infractions were alleged in the impeachment process.
  17. The three main principles for considering an application seeking conservatory orders were as follows:
    • The need for the Applicant to demonstrate an arguable prima facie case.
    • Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.
    • Whether, if an interim conservatory order was not granted, the petition or its substratum would be rendered nugatory.
  18. In determining whether a matter disclosed a prima-facie case, a Court must look at the case as a whole. It must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law. In so doing, a Court must be guided by Articles 22(1) and 258(1) of the Constitution which provisions were on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened or when the Constitution had been contravened, or was threatened with contravention. Hence the consolidated petitions in Cohort No. 1 and Cohort No. 2 still raised constitutional issues that required further judicial interrogation.
  19. In the pre-2010 constitutional era, the President held immense power, including the ability to appoint and dismiss the Vice President at will and the discretion to assign—or withhold—duties for the Vice President. Consequently, the Vice President served entirely at the President's mercy. That was the framework that the 2010 Constitution sought to transform.
  20. Under the 2010 Constitution, the office of the Deputy President was fundamentally redefined. It was safeguarded from arbitrary and capricious actions by the President. Article 147(2) granted the Deputy President specific constitutional functions, in addition to any duties the President could assign. That provision was intended to address the previous situation in which a President could, for any reason, choose not to assign duties to the Deputy President, effectively side lining them. Under the 2010 Constitution, even if the President did not assign additional duties, the Deputy President still had specific, constitutionally mandated functions to perform. In that way, the Deputy President was no longer at the mercy and discretion of the President.
  21. Under the current constitutional framework, when the office of the Deputy President became vacant, two outcomes followed.
    1. First, any functions that were assigned to the Deputy President by the President automatically reverted to the President.
    2. Second, the functions expressly conferred upon the Deputy President by the Constitution did not revert to the President and could not be performed by anyone else.
  22. That was a departure from the 1963 Constitution, under which the President could appoint a Minister to act as Vice President in the Vice President's absence. The 2010 Constitution included no such provision. Therefore, if the office of the Deputy President was vacant, the specific constitutional functions assigned to that office remained unfulfilled. For clarity, not even the Speaker of the National Assembly could discharge the functions vested in the Deputy President under Article 147(2) of the Constitution. The current constitutional framework had not envisioned any scenario in which the office of the Deputy President would remain vacant, except during the brief period required to fill such a vacancy.
  23. Another equally important provision that added credence to the position that the office of the Deputy President could not be left vacant was Article 146(3) of the 2010 Constitution. Article 150(2) of the Constitution, on the Removal of the Deputy President, stated that the provisions of Articles 144 and 145 relating to the removal of the President shall apply, with the necessary modifications, to the removal of the Deputy President.
  24. A holistic reading of Article 146 alongside Article 150(2) of the 2010 Constitution, and in relation to the filing of a vacancy in the office of the Deputy President in the instant matter, yielded the meaning that the person who assumed the office after the impeachment of the Deputy President shall, unless otherwise lawfully removed from office, hold that office until further orders of the High Court or until the prevailing term of Presidency ended, whichever came first.
  25. The structure of the Constitution, which reflected the popular will of the Kenyan citizens, envisioned a scenario in which the office of the Deputy President would always be filled, except during the brief period required to fill a vacancy.
  26. The purpose of conservatory orders was to preserve the status quo pending further orders of the Court. Maintaining the status quo meant that the 1st petitioner remained impeached under Article 145(7), which affirmed the finality of the impeachment process. Additionally, the prevailing status quo was that the Deputy President nominee could not assume office. While such an approach may seem fair, reasonable, and balanced—and one that the Court would ordinarily be inclined to adopt—the unique nature of the Deputy President’s role under the 2010 Constitution suggested a different course.
  27. Allowing those orders to stand would leave the office of the Deputy President vacant. The problem, however, was that no other person was authorized to carry out the constitutional functions specifically assigned to the Deputy President under Article 147(2), once those assigned by the President revert to the President in the absence of an officeholder. The result would be a de facto suspension of Article 147(2) of the Constitution—an outcome that no court should knowingly permit.
  28. No court should issue orders that have the effect of suspending the operation of any provision of the Constitution, as such an outcome was not envisioned by the document itself. The Constitution was not handed to Kenyans on a silver platter; it was achieved through great struggle and sacrifice. Therefore, it was the duty of the Court to uphold its provisions as intended by the framers and as demanded by the people of Kenya.
  29. Article 259 of the Constitution mandated that the document must be interpreted as always speaking. That meant that the Constitution was a living document, designed to address contemporary challenges and to be applied consistently and continuously without interruption. Suspending any provision of the Constitution, even temporarily, would undermine that principle by creating gaps in its operation and disrupting the intended balance of governance.
  30. The Constitution was structured to ensure that all its provisions were effective and operative at all times. If any provision, such as Article 147(2), was rendered dormant by a judicial order, it risked setting a precedent where parts of the Constitution could be selectively "switched off," effectively weakening the Constitution’s authority and the protections it afforded.
  31. Courts were guided by the principle of constitutional supremacy, which required that all judicial decisions aligned with the Constitution’s objectives and upheld its integrity. Issuing an order that suspended a constitutional provision would directly contravene that principle, effectively placing judicial discretion above the supreme law of the land. That would be inconsistent with the spirit of judicial restraint and the Court's role as a protector—not a modifier—of the Constitution.
  32. The Constitution must remain fully operational at all times, and no court order should have the effect of rendering any part of it inoperative or dormant. The Court’s responsibility was to interpret and apply the Constitution as a cohesive, functional document that served the people’s enduring will and protected the structure of governance as established. Public interest favoured giving way to the Constitution, which in any event was the will of the people. That was also the dictate under Article 3 of the 2010 Constitution where every person had an obligation to respect, uphold and defend the Constitution. Public interest demanded that the office of the Deputy President should not remain vacant.
  33. The consolidated petitions challenged the entire impeachment process. The fundamental issues at stake remained live, even though the parliamentary proceedings had been completed. Furthermore, should any of the petitions succeed, the Court would have no shortage of effective remedies to address that situation.
  34. No individual could suffer loss or damage when the Constitution was permitted to operate as intended. Allowing the constitutional process to unfold does not, in itself, result in detriment, as it would uphold the rule of law and respects the framework agreed upon by the people.
  35. The applicants expressed concern that the respondents had a history of disobeying Court orders and that, once the office of the Deputy President was filled, it would be impossible to remove the appointee even if the Petitions were successful. The High Court could not operate under the assumption that its orders would be disregarded. Kenya had legal mechanisms to address any acts of disobedience. Moreover, the Attorney General, had given an undertaking to comply fully with any orders issued by the Court in the instant matter. The applicants did not stand to suffer any prejudice in the event the conservatory orders were not granted.
  36. The matter held significant public interest. The High Court remained committed to an expeditious determination of the petitions.
Application disallowed.
Orders
  1. The applications for conservatory orders were disallowed;
  2. The conservatory orders issued on October 18, 2024 in Kerugoya HCCP E015/2024 were discharged and/or set aside;
  3. Costs shall be in the cause;
  4. Leave to appeal was granted. Typed proceedings and certified copies of the ruling to be availed to parties at cost or as the case may be;
  5. Mention for further directions on the way forward in respect of pending applications and the petitions, on November 7, 2024 at 2:30pm in open court;
  6. The Ruling shall be forthwith uploaded in the Court Tracking System (CTS).
Kenya Law
Case Updates Issue 017/24-25
Case Summaries  
   
CONSTITUTIONAL LAW It is upon a litigant pleading psychological torture to establish in exact terms, how and when they suffered such

Headnote: The appellants sought orders setting aside the declaration that the respondents’ actions of search and entry of the 1st and 2nd appellants’ premises was illegal and a violation of the appellants’ rights. The Supreme Court held that it was upon a litigant pleading psychological torture to establish in exact terms, how and when they suffered such. The court found that to award the appellants damages for the violation of their rights under articles 28 and 29(d) of the Constitution on account of the institution of C.M.CR.C. No. 188 of 2011, would translate to condemning the Director of Public Prosecutions (DPP) unheard. The court further noted that while the appellants sued the Attorney General, that was insufficient in view of the separate and distinct constitutional mandate of the DPP and the Attorney General.

Ondimu & another v Commissioner of Police & 3 others (Petition E031 of 2023) [2024] KESC 46 (KLR) (9 August 2024) (Judgment)
Neutral Citation: [2024] KESC 46 (KLR)

Supreme Court of Kenya
MK Koome, CJ, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

Reported by Kakai Toili

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Constitutional Law – – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – right to human dignity and freedom and security of the person - what were the factors to consider in establishing a claim of psychological torture – Constitution of Kenya, articles 28 and 29(d).

Constitutional Law – – constitutional petitions – parties to constitutional petitions – where a criminal suit had been instituted against a petition - whether it was sufficient to sue the Attorney General in a claim for violation of constitutional rights for the institution of a criminal suit by the Director of Public Prosecutions - Constitution of Kenya, article 157.

Brief Facts
The 1st appellant was engaged in the motor vehicle industry where he would purchase second-hand motor vehicles by first paying a deposit, then reselling the vehicles at a profit and thereafter make the final payment to the vendor. The 1st appellant and his father incorporated Motor World Limited, the 2nd appellant, which operated in Nakuru. The 1st appellant then transferred his motor vehicle business to the 2nd appellant. In the instant appeal the appellants sought orders setting aside the judgment and order of the Court of Appeal which upheld the High Court’s judgment where the High Court declared that the respondents’ actions of search and entry of the 1st and 2nd appellants’ premises was illegal and a violation of the appellants’ rights under articles 31 and 40 of the Constitution. The High Court further awarded the appellants’ damages in the sum of Kshs.3,000,000 together with interest and costs.
In the instant court, the appellants raised among other grounds that; the superior courts below misinterpreted and misapplied articles 28 and 29(d) of the Constitution in failing to declare that Mombasa C.M.CR.C. No. 188 of 2011 instituted against the 1st appellant was illegal and a violation of articles 28 and 29(d) of the Constitution; and failing to award the 2nd appellant any relief despite finding that the respondents’ actions violated its rights on the mistaken assumption that it had closed down long before the determination of the suit contrary to its rights under article 27 of the Constitution.

 

Issues:

  1. What were the factors to consider in establishing a claim of psychological torture?
  2. Whether it was sufficient to sue the Attorney General in a claim for violation of constitutional rights for the institution of a criminal suit by the Director of Public Prosecutions.

Held:

  1. Despite a prayer for declaration that the filing of charges in C.M.CR.C. No. 188 of 2011 against the 1st appellant was illegal, arbitrary, unlawful, capricious, malicious, an abuse of power/authority and a violation of the 1st appellant’s right to dignity being raised as a ground of appeal, that prayer was not addressed by both the superior courts below. Failure to consider the notice of grounds of affirmation rendered the issue undetermined and therefore leaving the litigants in a state of uncertainty. Therefore, the instant court ought to consider the grounds that the superior courts below did not address.
  2. The court took judicial notice of the fact that various issues could affect one psychologically, for instance, family matters, divorce, bereavement, work, lawsuits and so forth. It however was upon a litigant pleading psychological torture to establish in exact terms, how and when they suffered such. Consequently, the 1st appellant needed to establish what particular elements caused him psychological torture. It was expected that litigation in itself would invariably affect a party psychologically, the seriousness thereof however, would depend on a myriad of factors. It was not enough to merely state that the 1st appellant shuttled between Nakuru and Mombasa to attend his trial, suffered anguish, despair and economic stress. In the circumstances, the appellants had not established that the 1st appellant suffered psychological torture.
  3. The Director of Public Prosecutions (DPP) was not a party to the proceedings before the superior courts below. The Constitution birthed the DPP which was vested with prosecutorial powers which included instituting and undertaking criminal proceedings. Sections 57(1) and (2)(a) and (b) of the Office of the Director of Public Prosecutions Act (cap 6B), provided that all prosecutions, appeals, revisions and other proceedings, service of documents in connection with criminal proceedings shall be deemed to have done in the name of the Office of the Director of Public Prosecutions. That meant that for all intents and purposes, C.M.CR.C. No. 188 of 2011 was instituted by the DPP. It would have been prudent for the appellants to amend their pleadings and include the DPP as a party to the matter for regularity.
  4. To award the appellants damages for the violation of their rights under articles 28 and 29(d) of the Constitution on account of the institution of C.M.CR.C. No. 188 of 2011, would translate to condemning the DPP unheard, which went against the principles of natural justice. While the appellants sued the Attorney General, that was insufficient in view of the separate and distinct constitutional mandate of the DPP and the Attorney General. The court was not inclined to make any declaration on the alleged violation of articles 28 and 29(d) of the Constitution.
  5. Special damages must be strictly proved. The appellants failed to establish the nexus between the respondents’ actions and the decline in their business. Beyond producing the audited accounts, there was nothing that tied the decline in sales to the respondents’ actions.
  6. He who asserts must prove (sections 107-109 of the Evidence Act (cap 80)). Had the appellants’ discharged the burden of proof, then it would have been proper to shift the burden of proof to the respondents and call upon them to prove the existence of other factors that led to the closure of the appellants’ business. The words quoted by the appellants from the respondents’ submissions in support of the allegation on admission which the appellants labelled as an admission was indeed far from one.
  7. In Gladys Boss Shollei v Judicial Service Commission & Another, SC Pet No. 34 of 2014; [2022] KESC 5 (KLR), the court held that the Court of Appeal erred in formulating its own reasons for upholding the Judicial Service Commission’s (JSC) refusal to accord the appellant a public hearing, which reasons were not those given by the JSC. The facts therein were distinguishable from the instant matter. The decision of the JSC was ideally the cause of action in the Gladys Boss Shollei case and by proffering its own reasons, it meant that the Court of Appeal was mutating the cause of action. However, in the instant case, the Court of Appeal was exercising its jurisdiction as a first appellate court - that was, to consider the issues by reevaluating the evidence adduced in the trial court and arrive at its own conclusions of fact and law, and it could depart from the trial court’s findings if the same were not based on the evidence on record or where the trial court proceeded on the wrong principles of law.
  8. The appellants had failed to establish that there was any misdirection in the exercise of the High Court’s discretion to award damages. The court therefore declined the invitation to interfere with the damages awarded by the High Court and affirmed by the Court of Appeal.
  9. The appellants’ claims were easily distinguishable and discernible, from the pleadings right to the prayers. The Court of Appeal therefore fell into error in finding that the appellants failed to plead different causes of action and different reliefs.
  10. The status of the 2nd appellant as advanced by the 1st appellant and his witnesses was that it was no longer operational. Further, it would appear that it closed its business in 2013 or 2014. Having considered the appellants’ counsel’s oral submissions that the 2nd appellant was still in existence, the evidence as relates the 2nd appellant was at best, unclear and uncertain. In the circumstances, the court was not inclined to interfere with the High Court’s award.

Appeal partly allowed.

Orders:

  1. The petition dated October 30, 2023 was partially successful only to the extent that the Court of Appeal erred in failing to consider all the grounds of appeal advanced by the appellants.
  2. For the avoidance of doubt, all other prayers in the appeal were dismissed.
  3. Each party shall bear its own costs.
  4. The court directed that the sum of Kshs.6,000, deposited as security for costs upon lodging of the appeal, be refunded to the appellants
CRIMINAL LAW

The Children Act, 2022 did not adequately address the complexity of a situation of an accused person charged as a child but found guilty as an adult.

Headnote:The court discussed the elements necessary to prove the offence of defilement finding that the trial correctly convicted the appellant. However, the trial court had failed to properly sentence the appellant who was a minor during trial, but had turned an adult during his conviction and sentencing. Further, the trial court erred when it held that it had no discretion to mete out a sentence lower than the minimum sentence prescribed in section 8 (3) of the Sexual Offences Act. The court found that there was a lacuna in section 221 and 231 of the Children Act, 2022 for failing to offer sufficient protection to children over the age of 14 years who were charged with an offence as children but found guilty as adults. While calling for the Legislature to come up with a proper regimen to handle those type of cases, the court reiterated the findings in various precedents that the mandatory minimum sentences proscribed in the Sexual Offences Act were unconstitutional. The courts had discretion to sentence convicted persons under the Act, taking into account mitigating and aggravating circumstances.

EK Alias E v Republic (Criminal Appeal E031 of 2023) [2024] KEHC 1065 (KLR) (6 February 2024) (Judgment)
Neutral Citation:[2024] KEHC 1065 (KLR)
High Court at Nakuru
HM Nyaga, J

Reported by Moses Rotich

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Criminal Law – sexual offences - offence of defilement - ingredients necessary to prove the offence of defilement - whether the court could convict an accused person on the sole evidence of a victim - Sexual Offences Act, cap 63A, sections 2(1) and 8 (1); Evidence Act, cap 80, section 124
Statutes – interpretation of statutes - interpretation of section 221 as read with section 239 of the Children Act No 29 of 2022 - whether there was a lacuna in section 221 and 239 of the Children Act No 29 of 2022 for failing to provide protection to accused persons who were charged with an offence as children but found guilty as adults - Children Act No 29 of 2022, sections 221 and 239; Children Act, No 8 of 2001(repealed), sections 190

Brief facts:
The appellant was charged before the trial court with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, Cap 63A, Laws of Kenya (the Sexual Offences Act). He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. He pleaded not guilty. At the close of the trial, the appellant was convicted on the main charge and sentenced to serve twenty (20) years imprisonment. Aggrieved, he lodged the instant appeal.
He faulted the trial court for, among others, convicting him on account of insufficient evidence and for treating him as an adult for purposes of sentence thus offending the provisions of article 53 of the Constitution as well as section 221 as read with section 239 of the Children Act, No 29 of 2022 (Children Act, 2022).

Issues:

  1. What were the ingredients needed to prove the offence of defilement?
  2. Whether there was a lacuna in the sections 221 and 239 of the Children Act No 29 of 2022 for failing to provide protection to accused persons who were charged with an offence as children but found guilty as adults.

Relevant Provisions of the Law

Children Act, No 29 of 2022

Section 221 - Criminal liability of a child

(1) A person under the age of twelve years shall not be criminally responsible for any act or omission.

(2) A child who commits an offence while under the age of fourteen years shall be presumed not to be capable of differentiating between right and wrong, unless the Court is satisfied on evidence to the contrary.

(3) The provisions of this Part shall apply to a person who reaches the age of eighteen years before proceedings instituted against them pursuant to the provisions of this Act have been concluded.

Section 239 - Methods of dealing with children in conflict with the law

(1) Where a child is tried for an offence, and the Court is satisfied as to their guilt, the Court may deal with the case in one or more of the following ways—

  1. discharge the child under section 35(1) of the Penal Code (Cap. 63);
  2. discharge the child on his or her entering into a recognisance, with or without sureties;
  3. make a probation order against the offender under the provisions of the Probation of Offenders Act;
  4. commit the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender;
  5. if the child is between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances;
  6. order the child to pay a fine, compensation or costs, or any or all of them, having regard to the means of the child’s parents or guardian;
  7. in the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act;
  8. place the child under the care of a qualified counsellor or psychologist;
  9. order that the child be placed in an educational institution or vocational training programme;
  10. order that the child be placed in a probation hostel under the provisions of the Probation of Offenders Act;
  11. make a community service order;
  12. make a restorative justice order;
  13. make a supervision order;
  14. make any other orders of diversion provided for in this Part; or
  15. deal with the child in any other lawful manner as may be provided under any written law.

(2) A child against whom a community service order has been made may, having regard to the child’s age and development, be required to perform the service without remuneration, or for the benefit of the community, under the supervision or control of an organisation or institution identified by the probation officer.

(3) In addition, or as an alternative, to the orders prescribed in subsection (2), the Court may impose on a child such other sanctions as the Court may consider just.

(4) Any community service performed by a child shall be for a maximum period of fifty hours, and shall be completed within a period not exceeding six months.

(5) If a child fails to comply with any condition imposed on diversion, the Court shall make such orders as it considers fit, including an order directing that the child to be subjected to an alternative level of diversion.

(6) The orders imposed on a child upon a finding of guilt shall be proportionate to the circumstances of the child, the nature of the offence and the public interest, and a child shall not be treated more severely than an adult would have been treated in the same circumstances.

Held:

  1. The specific elements of the offence defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution ought to prove beyond reasonable doubt were;
    1. age of the complainant;
    2. proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and,
    3. positive identification of the assailant.
  2. Thus, the offence of defilement was rooted on those ingredients as provided for under section 8(1) of the Sexual Offences Act and ought to be proven for a conviction to issue.
  3. A child was defined as a person under the age of eighteen years. Based on the evidence on record including the complainant/victim's birth certificate, it was shown that the complainant was 14 years at the time of the commission of the offence. Accordingly, the age of the victim was conclusively determined.
  4. The key evidence relied by the courts in defilement cases in order to prove penetration was the complainant’s own testimony, which was usually corroborated by the report presented by the medical officer. Although, in the instant appeal, the issue of penetration was not in dispute, a critical analysis of the evidence of the victim and the clinical officer proved the element of penetration beyond reasonable.
  5. The third element of the offence was the identity of the perpetrator. There were clear guiding principles upon which the court had to analyze evidence of identification. As a rule, the best evidence of identification was that of recognition.
  6. Under section 124 of the Evidence Act, a court could convict an accused person on the sole evidence of a victim as long as the court was convinced the victim was telling the truth and recorded reasons for such belief. In the instant case, the trial magistrate opined that there was no evidence advanced by the defence to prove the victim would benefit if at all the appellant was incarcerated.
  7. Having looked at the record, the complainant was clear in her testimony as to what exactly happened. She was also steadfast during cross-examination. There was no motive in telling lies and her credibility and that of her mother were beyond doubt. Accordingly, the trial correctly held that the appellant committed the offence.
  8. The record reflected that the prosecution witnesses gave different evidence on the number of issues as pointed out by the appellant. However, the contradictions pinpointed by the appellant were not material to the main issues in question.
  9. Based on the foregoing, the trial magistrate properly directed itself in reaching the conviction. The evidence of the prosecution was watertight. The victim and her mother knew the accused well. Thus, the defence raised by the appellant regarding his name was of no probative value. Further, the appellant’s insinuation that he could have been framed up because of a land dispute between his parents and those of the victim was uncorroborated and unproved.
  10. The record of appeal contained a finding by the trial magistrate that the court made an enquiry as to the age of the appellant after it returned a verdict of guilty. The appellant, as per the certificate of birth tendered in court, was born on July 5, 2005. At the time of his finding of guilty and sentencing he had just crossed the age of majority, by around six to seven weeks.
  11. Faced with the situation of an accused charged as a child but found guilty as an adult, the trial faced a dilemma on how to sentence the appellant. Section 191 of the Children Act, 2001, which provided for methods for dealing with child offenders, was repealed and replaced by section 221 of the Children Act, 2022.
  12. From the wording of section 221(2) of the Children Act, 2022, it was to be presumed that a child over the age of 14 years was capable of differentiating between right and wrong, unlike a child under that age for whom a presumption to the contrary arose. Sections 238 and 239 of the Children Act, 2022 then provided the methods of dealing with a child in conflict with the law.
  13. In the instant case, at the time the appellant was charged with the offence, he was still a child and at the time of the finding of guilty he had attained the age of 18 years. The enactment of the Children Act, 2022 did not adequately addressed the complexity of a situation of an accused person charged as a child but found guilty as an adult. While it was acknowledged that as a milestone in further securing the rights of children, the Act failed to address the issue of treatment of a certain category of children in conflict with the law, such as the one the appellant was in. The Act, just like its predecessor, seemed to throw such children to the vagaries and uncertainty of the law.
  14. As could be seen, the law had taken care of the children in conflict with the law up to the age of fourteen. They were to be treated as children even if they attained the age of majority in the course of the trial. The same protection was not provided to children above 14 years of age. The question was whether they were also children deserving of some form of protection. Further, it was questionable that they were termed children and then were abandoned at the most crucial moment, just when the court was determining their fate. It was doubtful whether there was so much difference between a child who was 14 years and one who was, say, 15 years old that they would be treated so differently by the law.
  15. The law ought to have provided some form of protection as well, even if not identical to the one under section 221 of the Children Act. If the Act intended them to be treated differently, it ought to have expressly stated so. There was no discernible reason to call them children and then deal with them like adults. It would easily be found that the children in that age bracket (over 14 years) had not been adequately protected, so there was an element of discrimination. There was no explanation why the lacuna in the law continued to exist despite several decisions from the superior court addressing the issue.
  16. Thus, in the absence of the law expressly providing for former children such as the appellant, then the courts had to be guided by the existing legal provisions and the precedents of the superior courts. The ball was squarely on the Legislature to come up with a proper regimen to handle those type of cases.
  17. In the instant case, the trial court in sentencing the appellant to 20 years’ imprisonment, stated that in accordance with section 8 (3) of the Sexual Offences Act, that was the minimum sentence and it had no discretion.
  18. From the analysis of various precedents of the superior courts, it was settled law that any provision for a mandatory minimum sentence was unconstitutional and a court dealing with such a sentence had discretion over the matter. Needless to state, that discretion ought to be exercised judiciously, taking account all the circumstances of the case, the aggravating and mitigating factors.
  19. The court ought not to forget that offences of defilement were serious in nature and merit stiff sentences and there had to be a good reason to depart from the indicative sentence prescribed by law. The court would not be wrong if it found that a convicted person would deserve a sentence equivalent to the minimum sentence or more, provided that the reasons were stated. Thus, in the instant case, the trial magistrate erred when said that it had no discretion in the matter.
  20. An appellate court ought not to lose sight of the fact that in sentencing, if the trial court exercised its discretion and such discretion was exercised judicially and not capriciously, the appellate court should be slow with any orders so issued. In the instant case, the trial court was wrong to hold that she had no discretion at all. Thus, the instant court was entitled to examine the sentence imposed and to make a determination thereon.
  21. With a discretion in sentencing, the trial court ought not to have lost sight of the age of the accused when the offence was committed. The delay in the conclusion of a case, which ultimately led to his attaining the age of majority, should have been a factor to be considered in favour of, and not to the prejudice of the appellant. Therefore, it was the duty of the instant court, if it was to find that the sentence was manifestly excessive, to mete one that it deemed appropriate in the circumstances.
  22. The Sentencing Policy Guidelines required the court, in sentencing an offender, to take into account both aggravating and mitigating factors. The aggravating factors included use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender.
  23. The trial court should have considered the peculiar situation of the appellant. Meting out a 20-year prison sentence to the appellant was excessive by all accounts. The appellant was not to blame for the delay in the case, so there was no reason for him to suffer such a lengthy prison term arising out a problem not of his own making. Of course those sentiments should not be taken to mean that the court loses sight of the nature of the offence and the manner it was committed.
  24. The appellant ambushed the complainant and had sex with her in a violent manner. She did not consent to it and tried to fight off the appellant, who was too strong for her. The appellant ought to answer for his indiscretion. At the same time, the victim ought to have some sense of justice being done to her. Those were the aggravating circumstances. The mitigating circumstances were the age of the Appellant at the material time. In the circumstances of the case, the sentence meted by the trial court was excessive.

Appeal partly allowed.

Orders:

  1. The 20 years’ imprisonment was set aside and substituted it with a sentence of five (5) years imprisonment.
  2. As the appellant was in custody throughout the trial, therefore under Section 333(2) of the Criminal Procedure Code the five (5) year sentence to commence from March 7, 2023, when he was first remanded into lawful custody.