Kenya Law Weekly Issue 021/24-25

Headnote:      The core issue of the appeal was whether Governors were mandated to advertise and competitively recruit County Attorneys. The appellants contended that the Office of the County Attorney Act granted Governors discretion to appoint County Attorneys without public advertisement. They also argued that the ELRC erred in hearing the case after finding the petitioners had failed to prosecute it by not submitting submissions on time. The Court of Appeal held that the Office of the County Attorney Act did not require competitive recruitment for County Attorneys. The CoA also found that the ELRC erred by proceeding with the case despite the petitioners' procedural lapse. Consequently, the appeal was allowed, and the ELRC decision was overturned.

Arati & 4 others v Omao & 4 others (Civil Appeal E101 of 2024) [2024] KECA 1421 (KLR) (11 October 2024) (Judgment)
Neutral Citation: [2024] KECA 1421
Court of Appeal at Kisumu
HM Okwengu, HA Omondi, and JM Ngugi, JJA
October 11, 2024
Reported by John Ribia
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Devolution – County Executive – powers – powers of the Governor – powers to hire the County Attorney – preconditions – competitive recruitment - whether Governors were required to publicly advertise and competitively recruit County Attorneys - Public Appointments (County Assemblies Approval) Act (Cap 265B) section 5(1)
Civil Practice and Procedure – petitions – prosecution of petitions – failure to file submissions – where one is deemed to have failed to prosecute a case by failing to file submissions - whether the Employment and Labour Relations Court erred by proceeding with the hearing and ruling on the merits of the petition after finding that the petitioners had failed to prosecute their case by not filing submissions within the directed time
 
Brief facts
The Governor Paul Simba Arati appointed Alfred Ongiri Nyandieka as the County Attorney of Kisii County through Gazette Notice No. 14717 on November 30, 2022, following nomination and vetting by the County Assembly. The appointment process did not involve public advertisement or competitive recruitment. Subsequently, Vincent Mariita Omao and David Mangondi Senema filed a petition in the Employment and Labour Relations Court (ELRC) challenging the appointment, citing procedural and constitutional violations.
The Employment and Labour Relations Court ruled that the appointment was unlawful due to the lack of competitive recruitment and quashed it. The appellants, including the Governor and the Kisii County Government, appealed this decision, arguing that the County Attorney's appointment did not require advertisement or competitive recruitment, citing the Office of the County Attorney Act.

Issues

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Elements to prove the offence of defilement

Headnote: The appeal was against the conviction and sentence of the appellant for the offence of defilement. The court highlighted the elements required to prove the offence of defilement. The court found that medical evidence was not necessary to prove penetration. However, in absence of medical evidence, the test was more severe. The court held that the appellate court could only interfere with sentence if it was severe or certain factors, which were decisive in character were ignored or irrelevant factors considered. The court also highlighted grounds to be applied in sentencing.

Theuri v Republic (Criminal Appeal 32 of 2021) [2024] KEHC 8232 (KLR) (1 July 2024) (Judgment)

High Court at Nyeri

DKN Magare, J

Reported by Kakai Toili

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Criminal Law – sexual offences – defilement -   elements to prove the offence of defilement – penetration - whether medical evidence was necessary to prove penetration in a case of defilement – Sexual Offences Act (cap 63A), section 2.

Criminal Procedure – sentencing - grounds to be applied in sentencing - when could an appellate court interfere with a trial court’s sentence.

Brief facts

The appellant had been charged with defilement of a child aged 10 years. The appellant was also charged with an alternative count of indecent act with the minor. The trial court convicted and sentenced the appellant to life imprisonment for the offence of defilement. Aggrieved, the appellant filed the instant appeal on among other grounds; the trial court erred in law and fact in holding that the appellant had defiled the complaint when the charge had not been proved beyond reasonable doubt. The appellant sought that the sentence be set aside and conviction quashed.

Issues

1. What were the elements to prove the offence of defilement ?
2. Whether medical evidence was necessary to prove penetration in a case of defilement .
3. What were the grounds to be applied in sentencing and when could an appellate court interfere with a trial court’s sentence?

Held

1. The minor’s full names were used contrary to the dictates of the Children Act. There was a constitutional imperative of protecting the identity of minors. That was not proper. The right to privacy and concealing of the minor’s identity was sacrosanct. Whether the Act required that the court directs or not, the names of children should always be abbreviated.
2. Being a first appeal, the court was under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
3. In defilement, the elements to prove were;
   1. proof of the age of the victim;
   2. proof of penetration; and
   3. identification of the offender.
4. The elements were proved vide evidence. Age could be proved by common sense, documents or by deduction. The aspect of penetration could be partial or complete. The length and duration did not matter. Section 2 of the Sexual Offences Act, defined penetration to mean: the partial or complete insertion of the genital organs of a person into the genital organ of another person. Penetration was not a matter of law but that of fact. Medical evidence was not necessary to prove penetration. However, in absence of medical evidence, the test was more severe.
5. The trial court found that the complainant was precise as to the happenings. The trial court believed her. It was the trial court that heard and saw the witnesses. By dint of section 124 of the Evidence Act the complainant’s evidence was enough to convict even in absence of any medical evidence. Even in issues of circumstantial evidence, the appellant was left with the minor who was in his company from school to home. He arrived home late on November 28, 2020 with a bleeding child. Surely, bleeding started somewhere in between. There was no one with an opportunity to defile the child. Even if an unidentified flying object came, an explanation was needed. In absence of such, the circumstances irresistibly led to the guilt of the appellant.
6. The appellant was the only one with the child at all the times. The evidence ostensibly pointed to his guilt. For circumstantial evidence to work, it must be inconsistent with the accused’s innocence.
7. The appellant’s alibi was not solid at all. It was a sieve that required no response. The dates in issue had no alibi.
8. There was no contradiction in evidence. There could be a few discrepancies which were expected from the nature of knowledge each witness had. There was no congruence of events to have consistent evidence. Each party gave evidence on the points in time and place that they played. No two witnesses witnessed the same thing.
9. The totality of the evidence pointed that the evidence was inconsistent with the appellant’s innocence. When the appellant stated that his evidence was disregarded, was not true. The appellant confirmed he was with the child during the period the child indicated the offence happened. He raised issues of the state of the road where the offence was committed. The age of the minor was proved as well as penetration by the appellant. There was overwhelming evidence that was not displaced.
10. There was no witness that was left out. In any case section 143 of the Evidence Act provided that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. The prosecution proved its case beyond reasonable doubt.
11. The appellate court could only interfere with sentence if it was severe or certain factors, which were decisive in character were ignored or irrelevant factors considered. The grounds to be applied in sentencing were;
    1. age of the offender;
    2. being a first offender;
    3. whether the offender pleaded guilty;
    4. character and record of the offender;
    5. commission of the offence in response to gender-based violence;
    6. remorsefulness of the offender;
    7. the possibility of reform and social re-adaptation of the offender;
    8. probation officer’s pre-sentencing report; and
    1. any other factor that the court considered relevant.
12. Sentence was a question of fact. Sentence was a matter of discretion of the trial court. The sentence was thus a proper one. However, a binding precedent required the court to equate the life sentence to a term sentence. The trial court considered mitigation but said that its hands were tied. The instant court would untie them. Balancing the scales, the life sentence was appropriate. Nevertheless, in equating the sentence, the crime was not committed with unnecessary violence. It was an SGBV. All factors considered, the sentence would be equated on basis of precedent. The sentence of life imprisonment was well deserved. There was no error in meting out the sentence.

Appeal dismissed.

Orders

1. The appeal on conviction was dismissed.
2. The appeal on sentence was equally dismissed. However, the Court of Appeal required that life imprisonment be equated to a term sentence. The court therefore equated the life sentence and substituted with term sentence of 30 years.
3. Pursuant to section 333(2) of the Criminal Procedure Code, the sentence of 30 years shall run from the date of arrest November 25, 2020, excluding the period between December 8, 2020 and September 27, 2021 both days inclusive when the appellant was on bond.
4. Right of appeal 14 days.

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Meaning of the phrase sufficient reason as used in Order 45 rule 1 of the Civil Procedure Rules.

Headnote:      The applicant sought a review of an order staying the execution of a decree for the distribution of matrimonial property, arguing that the Respondent had failed to file an appeal within the prescribed timelines. The respondent had lodged a Notice of Appeal but did not file the substantive appeal within 60 days, as required by the Court of Appeal Rules. The Applicant contended that this delay was a deliberate tactic to frustrate the execution of the judgment. The High Court found that the delay rendered the previous stay order unjustified and inoperative. It determined that “sufficient reason” existed under Order 45, Rule 1 of the Civil Procedure Rules to vacate the stay. The court explained that sufficient reason included any valid justification warranting a review to prevent injustice, such as procedural delays that undermined the fair administration of justice. The absence of a pending appeal and the lack of any application for an extension of time justified lifting the stay. Consequently, the court allowed the Deputy Registrar to execute the necessary transfer documents to enforce the decree. The application for review was granted, and the respondent was ordered to bear the costs of the proceedings.

GKM v MNK (Originating Summons 1 of 2018) [2024] KEHC 54 (KLR) (10 January 2024) (Ruling)

High Court at Meru

EM Muriithi, J

Reported by John Ribia

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Statutes – interpretation of statues – interpretation of Order 45 rule 1 of the Civil Procedure Rules - meaning of the phrase sufficient reason as used in Order 45 rule 1 of the Civil Procedure Rules - what constituted ‘sufficient reason’ for granting a review under the Civil Procedure Rules

Civil Practice and Procedure – review – where there was an order staying execution – application to review stay order - whether a court can review or vacate an order staying execution when there was an unreasonable delay or failure to file an appeal within the prescribed timelines - Environment and Land Court Act (cap 8D) section 13(1) and (7); Civil Procedure Act (cap 21) section 80; Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 49, rules 1, and 5; Court of Appeal Rules, 2022 (cap 9 Sub Leg) rule 82

Civil Practice and Procedure – appeals - failure to lodge an appeal after filing a Notice of Appeal – application to review or lift stay of execution - whether the failure to lodge an appeal after filing a Notice of Appeal constituted sufficient reason for lifting a stay of execution - whether an order staying execution became inoperative when there was no pending appeal or application for an extension of time to file an appeal - whether the Deputy Registrar could be authorized to execute transfer documents in enforcing a decree for the distribution of property - whether a party's procedural delays could amount to abuse of court process, justifying the court's intervention to prevent injustice - Environment and Land Court Act (cap 8D) section 13(1) and (7); Civil Procedure Act (cap 21) section 80; Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 49, rules 1, and 5; Court of Appeal Rules, 2022 (cap 9 Sub Leg) rule 82

Brief facts

The applicant sought a review of a Court Order issued on December 16, 2022, which had stayed execution of a decree issued on June 13, 2019. The decree awarded the distribution of matrimonial property between the applicant and the respondent, Dr. MNK, on a 40:60 basis. The respondent had previously filed a Notice of Appeal on June 25, 2019 but did not file the actual appeal within the required 60 days.

The applicant argued that no appeal existed and that the respondent’s delay was a tactic to frustrate execution. The respondent opposed the application, asserting that the grounds for review had not been met.

Issues

1. Whether a court could review or vacate an order staying execution when there was an unreasonable delay or failure to file an appeal within the prescribed timelines.
2. Whether the failure to lodge an appeal after filing a Notice of Appeal constituted sufficient reason for lifting a stay of execution.
3. Whether an order staying execution became inoperative when there was no pending appeal or application for an extension of time to file an appeal.
4. Whether the Deputy Registrar could be authorized to execute transfer documents in enforcing a decree for the distribution of property.
5. What constituted ‘sufficient reason’ for granting a review under the Civil Procedure Rules?
6. Whether a party's procedural delays could amount to abuse of court process, justifying the court's intervention to prevent injustice.

Held

1. The phrase sufficient reason in Order 45 rule 1 of the Civil Procedure Rules must be one that was analogous or ejusdem generis to the other reasons stipulated in order 45 rule 1.  A sufficient reason was a reason which in consideration of the interest of justice would justify the review, varying or setting aside of the order. It may include situations where the order in issue has become inoperative, useless or redundant, or it caused an injustice or otherwise caused more hardship than it avoids.
2. The appeal for the determination of which the court ordered that the application be held in abeyance was never filed. There was nothing to wait for as there was no pending appeal, and the court was not aware of any application for extension of time to file the appeal. The failure to institute an appeal in accordance with rule 82 of the Court of Appeal Rules attracted the consequences under rule 83 of the Rules, that the appeal was deemed to have been withdrawn, and there was, consequently, no appeal pending hearing and determination to justify the continuation of the orders under review.
3. There being no appeal pending determination to justify the orders, the same must be reviewed to lift the order holding in abeyance the determination of the application for Deputy Registrar to execute transfer documents.
4. The Deputy Registrar possessed ministerial powers under Order 49, Rules 1 and 5 of the Civil Procedure Rules. The provisions authorized the Deputy Registrar to perform specific procedural tasks traditionally assigned to the court. Under rule 1, the Registrar or an executive officer, empowered by the Chief Justice, could execute any ministerial acts required by the court. Additionally, rule 5 allowed the Registrar to issue formal orders related to the attachment and sale of property, as well as notices concerning arrest and imprisonment in the execution of High Court decrees. However, if any party raised an objection to the proceedings, the matter must be referred to a judge for further determination.

Application allowed.

Orders: -

1. The Court Order of December 16, 2022 was reviewed and set aside.
2. The applicant’s application dated September 10, 2021 for execution of the judgment of the High Court delivered on June 13, 2019 was granted.
3. The appellant was to pay to the respondent/applicant the costs of the applications dated September 10, 2021 and April 17, 2023 made in execution of the Judgment of June 13, 2019.
4. File closed.