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James Mwangi Kariuki V Nanasi Housing Co-Operative Society Limited [2015] eKLR

Case Number: Civil Appeal 333 of 2012 Date Delivered: 18 Dec 2015

Judge: Erastus Mwaniki Githinji, Wanjiru Karanja, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: James Mwangi Kariuki v Nanasi Housing Co-Operative Society Limited

Citation: James Mwangi Kariuki V Nanasi Housing Co-Operative Society Limited [2015] eKLR

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Denis Okelo Mateba V Republic [2015] eKLR

Case Number: Criminal Appeal 110 ‘B’ of 2014. Date Delivered: 18 Dec 2015

Judge: Margaret Njoki Mwangi

Court: High Court at Kakamega

Parties: Denis Okelo Mateba v Republic

Citation: Denis Okelo Mateba V Republic [2015] eKLR

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Goshrani Printers V Peter Musau Nzioki [2015] eKLR

Case Number: Civil Appeal 13 of 2011 Date Delivered: 18 Dec 2015

Judge: Patrick Okwara Otieno

Court: High Court at Mombasa

Parties: Goshrani Printers v Peter Musau Nzioki

Citation: Goshrani Printers V Peter Musau Nzioki [2015] eKLR

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Kenya Nut Company Limited V Kenya Plantation & Agricultural Workers’ Union Limited & Another [2015] eKLR

Case Number: Cause 643 of 2013 Date Delivered: 18 Dec 2015

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Nut Company Limited v Kenya Plantation & Agricultural Workers’ Union Limited & Kenya Union of Commercial, Food and Allied Workers

Citation: Kenya Nut Company Limited V Kenya Plantation & Agricultural Workers’ Union Limited & Another [2015] eKLR

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Refugee Consortium Of Kenya & Another V Attorney General & 2 Others [2015] eKLR

Case Number: Petition 382 of 2014 Date Delivered: 18 Dec 2015

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Refugee Consortium of Kenya, N T (suing on behalf of D L (minor) & 47 others) v Attorney General, Cabinet Secretary Ministry of Interior and National Co-ordination & Commissioner of Refugee Affairs

Citation: Refugee Consortium Of Kenya & Another V Attorney General & 2 Others [2015] eKLR

The Welfare of the Child should be considered by the State in Directives that affect Refugees.

Refugee Consortium of Kenya & another v Attorney General & 2 others

Petition 382 of 2014

High Court at Nairobi

I Lenaola J

December 18, 2015

Reported by Phoebe Ida Ayaya

 

Brief Facts

On March 26, 2014, the Cabinet Secretary for the Ministry of Interior and National Co-ordination (hereafter referred to as the 2nd Respondent) issued a press statement informing the public of the decisions made by the Government with regard to refugees and national security issues.  Among the decisions was the directive that all refugees residing outside designated refugee camps as specified in Gazette Notice No.1927 must return to their designated camps immediately. It was ordered that all refugee registration centres in urban centres were to be closed.

Consequently, the Government launched an internal security operation called Operation Usalama Watch that was carried out by the National Police Service around Eastleigh Estate and other areas perceived to be “hideouts” for illegal immigrants.  As a result, the 2nd Petitioner, as well as parents of other minors, were arrested and detained. They were detained despite pleading that they had young children who needed their care.  They were then forcefully taken to Daadab Refugee Camp leaving their minor children behind.  It was the above actions that triggered the present Petition.

The Petitioners sought a declaration that the Respondents were specifically in contravention of articles 29(d) and (f) and articles 53(1)(d) and 53(2) of the Constitution.  The articles respectively protected the rights to freedom and security of the person which included the right not to be subjected to torture in any manner or treated or punished in a cruel, inhuman or degrading manner, and the rights of every child to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment and hazardous or exploitative labour and provides that a child’s best interest was of paramount importance in every matter concerning the child.  They further based their Petition on article 27 which guaranteed equality and freedom from discrimination; article 28 which protected the right to dignity and article 47(1) which protected the right to fair administrative action.  The Petitioner also claimed that numerous provision of the Children Act, 2010 had been violated and that the children had been separated from their parents in contravention of international and regional law.

Issues

  1. Whether fundamental rights and freedoms could be limited under article 24 of the Constitution of Kenya, 2010 based on national security considerations
  2. Whether the best interests of the child were considered by the State when it implemented a directive that led to the arrest of refugee parents
  3. Whether the Respondents’ Directive and press statement infringed upon the children’s rights to parental care, education and to be protected from neglect
  4. Whether the State had differentiated between refugees living in refugee camps and those living in urban areas by issuing impugned directive contrary to article 27(4) of the Constitution of Kenya, 2010
  5. Whether the directive denied the Petitioner the right to fair administrative action contrary to article 47(1) of the Constitution of Kenya, 2010
  6. Whether the Respondents’ directive, press statement and subsequent acts and/ or omissions of the Respondents had violated the Petitioner’s rights to freedom and security of a person and right to dignity as stated under articles 28 and 29(d) and (f) of the Constitution of Kenya, 2010

 

Constitutional law-fundamental rights and freedoms- - limitations of human rights and freedoms- whether rights and fundamental freedoms could be limited under article 24 of the Constitution of Kenya, 2010 based on national security considerations- Constitution of Kenya, 2010 article 24

Constitutional law – Rights of the Child –best interests of a child- right to shelter, parental protection and education – whether the best interests of the child were considered by the State when it implemented a directive that led to the arrest of refugee parents- Constitution of Kenya, 2010 article 53(2); Children Act, 2010 section 4(2)

 

Constitutional law-fundamental rights and freedoms- right to equality and freedom from discrimination- refugees living in refugee camps and those living in urban areas- whether the State had differentiated between refugees living in refugee camps and those living in urban areas by issuing impugned directive contrary to article 27(4) of the Constitution of Kenya, 2010- Constitution of Kenya, article 27(4)

 

Constitutional law- fair administrative action- reasons for decision while effecting an administrative action-whether there was a limitation to enjoyment of fair administration - what amounted to a breach of fair administrative action as guaranteed by the Constitution- whether the directive denied the Petitioner the right to fair administrative action contrary to article 47(1) of the Constitution of Kenya, 2010- Constitution of Kenya, 2010 article 47(1)

Constitutional law-fundamental rights and freedoms- right to equality and freedom from discrimination-right to human dignity- freedom and security of the person- whether the Respondents’ directive, press statement and subsequent acts and/or omissions of the Respondents had violated the Petitioner’s rights to freedom and security of a person and right to dignity as stated under articles 28 and 29(d) and (f) of the Constitution of Kenya, 2010.

International Law –application of international law - protection of refugees – international obligation of the Kenyan government with respect to protection of refugees –whether refugees qualify as vulnerable persons under the Constitution of Kenya-Constitution of Kenya, 2010, article 21(3)

 

 

 

Relevant provisions of the Law

Constitution of Kenya, 2010

Article 24 - Limitation of Rights and Fundamental Freedoms

(1)     A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-

(a) the nature of the right or fundamental freedom;

(b) the importance of the purpose of limitation;

(c) the nature and extent of limitation;

(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

(2)     Despite clause (1), a provision in legislation limiting a right or fundamental freedom-

(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;

(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and

(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

Article 27(4)

The State shall not discriminate directly or indirectly against any person on any ground, including race, sex pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, dress, language or birth.

Articles 29(d) and (f)

Every person has the right to freedom and security of the person, which includes the right not to be-

 a.  …

 b.  …

 c.  …

 d.  Subjected to torture in any manner, whether physical or psychological;

 e.  …

 f.  Treated or punished in a cruel, inhuman or degrading manner.

The United Nations High Commission on Refugees (UNCRC)

“(r)efugee children are children, first and foremost, and as children, they need special attention”.;

Refugee children face far greater dangers to their safety and well being than the average child.  The sudden and violent onset of emergencies, the disruption of families and community structures as well as the acute shortage of resources with which most refugees are confronted, deeply affect the physical and psychological well-being of refugee children.  It is a sad fact that infants and young children are often the earliest and most frequent victims of violence, disease and malnutrition, which accompany population displacement, and refugee outflows.  In the aftermath of emergencies and in the search for solutions, the separation of families and familiar structures continue to affect adversely refugee children of all ages.  Thus, helping refugee children to meet their physical and social needs often means providing support to their families and communities.

Article 3(1)

In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

 

 

Held

  1. Refugee children fell within the category of vulnerable persons recognized by article 20(3) of the Constitution since they had been forced to flee their homes as a result of persecution, human rights violations and conflict. Refugees had been victims of violence on the basis of very personal attributes such as ethnicity or religion and they were vulnerable due to lack of means, support systems of family and friends and by the very fact of being in a foreign land where hostility was never very far.
  2. The vulnerabilities a refugee would face were extrapolated if that person was also a child. Refugee children belonged to another group of vulnerable persons. The refugee children were children first and foremost, and as children, they needed special attention.
  3. Refugee children were susceptible to disease, malnutrition and physical injury; they were dependent on adults for their physical, psychological and social wellbeing. Their development should not have been interrupted.  They faced far greater dangers to their safety and well being than the average child.
  4. The sudden and violent onset of emergencies, the disruption of families and community structures as well as the acute shortage of resources with which most refugees were confronted, deeply affected the physical and psychological well-being of refugee children.  It was a sad fact that infants and young children were often the earliest and most frequent victims of violence, disease and malnutrition that accompanied population displacement and refugee outflows.  In the aftermath of emergencies and in the search for solutions, the separation of families and familiar structures had affected adversely refugee children of all ages.  Helping refugee children to meet their physical and social needs often meant providing support to their families and communities.
  5. In terms of article 2(5) and (6) of the Constitution of Kenya, 2010, the general rules of international law and any treaty or convention ratified by Kenya formed part of the law of Kenya. Kenya had been a signatory of the following relevant international and regional instruments:
    1. The 1951 Convention Relating to the Status of Refugees (“1951 Convention”).
    2.  The 1967 Protocol relating to the Status of Refugees.
    3.  The 1969 Organisation of African Unity Convention Governing the Specific aspects of Refugee Problems in Africa (“AU Convention”).
    4. The 1989 United Nations Convention on the Rights of the Child (“UNCRC”)
    5. The 1990 African Charter on the Rights and Welfare of the Child (“ACRWC”)

 

  1. Refugees Act, 2006 made provision for the recognition, protection and management of refugees and for connected purposes. Section 16 of the Refugees Act ensured that every recognized refugee and every member of his family living in Kenya was entitled to the rights, and was subject to the obligations, contained in the international conventions to which Kenya was party and was subject to all the laws in force in Kenya.  Refugees were also entitled to the protections of the Constitution and the Bill of Rights.  Kenya had further enacted the Children Act, 2010 in order to give effect to the principles of the CRC and ACRWC.
  2. The guiding principle when dealing with the rights of children was that of the best interests of the child. Article 53(2) of the Constitution of Kenya 2010, provided that a child’s best interests were of paramount important in every matter concerning the child and the Children Act in turn at section 4(2) provided that in all actions concerning children, whether undertaken by public or private social welfare institutions, Court of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration. These principles were also recognized in article 3(1) of the CRC and article 4(1) of the African Charter.
  3. A party who approached the Court for the enforcement of fundamental rights and freedoms under article 22 of the Constitution must have stated his claim with some measure of precision in respect of the right allegedly violated and must have demonstrated how it had been violated in relation to him or another person.
  4. Discrimination was differentiation on illegitimate grounds.  Unfair discrimination further meant that people were treated differently in a way that impaired their fundamental dignity as human beings. Article 27(4) of the Constitution thus provided that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, dress, language or birth.
  5. The Petitioners had not made a compelling case in their claim that the Respondents had differentiated between refugees living in refugee camps and those living in urban areas by issuing impugned directive.  Further, that the said action was taken to ensure that all refugees were eventually detained in camps and thus subjected to the same conditions. It was not evident what any unfair impact which the Directive might have had on refugees living outside of the camps may be and the Petitioners. It had not been shown that it was only the refugees involved in the present Petition who were targeted and which others were left out and why.
  6. The Petitioners had not made an argument in either their written submissions, or in any of the Affidavits sworn in support of how the directive, press statement and subsequent acts and/ or omissions of the Respondents had violated the Petitioner’s rights to freedom and security of a person and right to dignity as stated under articles 29(d) and (f) and article 28 of the Constitution of Kenya, 2010.
  7. The Petitioners were denied the right to fair administrative action. Policy that had not made provision for the examination of individual circumstances and anticipated exceptions was unreasonable and breach of article 47(1) of the Constitution. It was unreasonable of the respondents to indiscriminately relocate all the arrested refugees without considering their individual circumstances first.
  8. The decision to grant exemptions to some refugees who were affected by the impugned actions were made several months after the fact and were an admission that the initial decision was hurried and not procedurally fair. It showed that the rights to fair administrative action and the best interests of the child were breached as the individual cases for consideration ought to have been dealt with before the relocation. That the affected parents were arrested while in Church, denied the opportunity to make arrangements for the care of their minor children, detained and moved to the refugee camps without any regard to all those fact was a clear breach of the expectations of fair administrative action and thence a breach of article 47 of the Constitution.
  9. It was not in dispute that the children cited in the instant petition had been separated from their parents. Under article 9 of the CRC separation was only justified if it was necessary for the best interests of the child, which was clearly not the case in this matter. The evidence made it clear that Operation Usalama Watch was carried out abruptly. Parents had left their children behind for what they thought would be few hours of a church service, but never returned home.
  10. There was more than one case of breastfeeding infants who were separated from their mothers and consequently suffered malnutrition.  The effect of the separation had been to deprive children of the right of family life and parental care which they had previously enjoyed.  The children’s lives had been therefore disrupted; many of them had no choice but to leave school because they had to deal with the trauma of losing their parents and some no longer had the means to pay for school fees or transport and some had to move in with relatives who did not live near the schools where they had been enrolled.
  11. As a result of the actions of the Respondents, many families had lost their only income-earning members and most of the children’s guardians were very young and not in a financial position to look after them.  Most of the guardians who had taken the places of detained parents were refugees themselves, and were living with the risk of being detained in terms of the Directive and leave the children without a guardian once more.
  12. The Respondents had taken retrogressive measures which had caused children to lose the parental care which they had before the Directive was implemented. The Respondents’ defence that they issued exemption and movement passes to deserving refugees was not plausible.  Almost all the parents of the children on whose behalf the Petition was brought were arrested on May 4, 2014.  The certificates of exemption were all issued more than a month after that date.
  13.  The reasons for qualifying for a certificate of exemption were, exclusively to continue with university studies and special medical needs.  It was not evident that the Respondents had granted any exemptions from living in the camps on the basis that the refugee in question was a parent or guardian to a minor child and that it was in the best interest of that child to live outside of the camp and with his or her parent.  Further, movement passes, vetted and approved in terms of the Respondents’ system, were only issued from July 31, 2014 and only allowed a refugee to leave the camp for a limited time.  Thus the parents living in camps who wanted to reunite with their children could hope for was to be given a 30 day movement pass by the Vetting Committee, 3 months or longer after the initial separation.  The exemption and movement pass procedures were in such circumstances of little help to the children whose rights were infringed by the separation from their parents and who had lost their source of security, care, income and nutrition.
  14. The Respondents’ suggestion that the children ought to have been reunited with their parents in the camps was not a viable option because, apart from interfering with their educational and social integration, it also failed to take account of the individual circumstances of the children and their parents.  The Respondents’ had not provided proof of the existence and adequacy of facilitates like schools, health facilities, solar street lighting and security in the camps.  It was not tenable and neither did it convince a solution.
  15. The determination of what was in the best interests of the child required a clear and comprehensive assessment of the child’s identity, including his or her nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs.  In order to determine the best interests of a child therefore, an individualized examination of the precise real-life situation of the child had to be made. None had been made in the instant matter.
  16. Section 28(2) of the South African Constitution, which was exactly the same as article 53(2) of the Constitution of Kenya 2010, had been interpreted by South African Courts to be a right and not just a guiding.  It had also been interpreted to require the law to make the best efforts to avoid, where possible, any breakdown of family life or parental care that may threaten to put children at increased risk.  Similarly, in situations where rupture of the family became inevitable, the State was obliged to minimize the consequent negative effect on children as far as it can.
  17. The fact that the best interests of the child were paramount did not mean that they were absolute and considering the impact of a custodial sentence on a child did not mean that a primary caregiver would never be given a custodial sentence.  However, even in a matter as serious as sentencing for a criminal conviction, the best interests of a child were to be taken into account.
  18. The Respondents ought to have paid attention to the interests of the children before proceeding to take their parents to refugee camps.  The best interests of children could not be an absolute bar against the implementation of legitimate national security and refugee control policies.  However, had the best interests of the children been considered by the Respondents at the point where the parents of the Petitioners were taken to Kasarani Police Station for the verification of their documents, they could have been spared much anguish and suffering.
  19. The Petitioners had succeeded in showing that the implementation of the Respondents’ Directive and press statement infringed upon the children rights to parental care, education and to be protected from neglect.  The Petitioners had also showed that, far from their best interests being considered to be of paramount importance, their interests were not considered at all. The Respondents had infringed upon the rights of children under articles 47(1) and 53 of the Constitution and had also breached sections 6(1), 7 and 13(1) of the Children Act and article 9 of the CRC
  20. The state bore the burden of demonstrating that the directive and press statement were reconcilable with the limitations of rights and fundamental freedoms provided under article 24(3) of the Constitution of Kenya, 2010. The five factors to be considered in determining whether a limitation to the Bill of Rights was reasonable and justifiable under article 24 (1) could not be applied mechanically as a mere checklist, but was rather to be used in balancing different interests and determining the proportionality of rights’ limitations.  The more serious the impact of the measure on the right, the more persuasive or compelling the justification must be.
  21. Limitation based on national security considerations could not be excluded from consideration under article 24 of the Constitution of Kenya, 2010. A real connection had to be established between the affected persons and the danger to national security posed and how the indiscriminate removal of all the urban refugees would have alleviated the insecurity threats in those areas.  The acts of the Respondents had to reflect the element of proportionality when they considered the danger and suffering bound to be suffered by the individuals and the intended results ought to be squared.
  22.  The Respondents had not provided any evidence to show that the relocation of urban refugees, who were lawfully registered, would address the current security challenges.  No evidence had also been adduced to prove that there was a clear nexus between lawfully registered and law-abiding refugees and security challenges. The Directive and press statement, according to which all refugees were to be relocated to refugee camps, had not been shown to be related to the safeguarding of national security at all. Beyond the assertion that less restrictive means might have been available to achieve the purpose of improving national security, the Directive and press statement could have been implemented in a less restrictive manner.
  23.  The Respondents could have prevented the infringement of the rights of children by considering their best interests prior to detaining their parents in refugee camps and yet with its powerful state machinery, still managed any security challenges they were facing at the time.  Not every refugee was a security threat and the fact that refugees may be in a refugee camp was similarly not an assurance of safety.  In fact, lessons from recent terrorist attacks would be that terrorists might not necessarily be a part of the refugee community contrary to popular thought in the public court.
  24. The limitation of the Petitioners’ rights was not justified under article 24 as no rational connection between the purpose of the Directive and the infringement of rights had been established.
  25. Article 23(3) of the Constitution of Kenya, 2010 provided that in any proceedings brought under article 22, a Court may grant any appropriate relief.  The kind of relief appropriate in the circumstances safeguarded the individual rights of the children while at the same time allowing the State and its agencies including the Refugee Department and other stakeholders to develop and implement policies that were consistent with the values of the Constitution including addressing security concerns in an insecure world.
  26. Important as the need to secure Kenyans was, haphazard, ill-thought out, knee-jerk reaction-like directives could not be allowed to override the said Bill of Rights unless article 24 of the Constitution of Kenya, 2010 was properly invoked. 

 

 

Application partly allowed. The following orders were issued:

  1. An order of Mandamus was issued to compel the Respondents, jointly and severally to re-unite the 2nd Petitioner and other affected refugee with the 48 children on whose behalf the present Petition was brought
  2.  An order was issued that nullified the Directive dated March 26, 2014 to relocate the 2nd Petitioner and other affected refugees to refugee camps in Kenya. 
  3. A declaration was issued that the Respondents acted in contravention of articles 53(d) and 53(2) of the Constitution in respect of the 48 children affected by the Directive.
  4.  An award of Kshs.50,000/- was to be paid by the Respondents to each of the 48 affected children.
  5. Cost of the Petition was to be paid to the 2nd Petitioner and the 48 affected children.

 

 

Cases

East Africa

1. Kituo cha Sheria & 7 others v Attorney General Petition No 19 & 115 of 2013 – (Followed)

2. Samow Mumin Mohamed v Cabinet Secretary Ministry of Interior & Co-ordination of National Government, Attorney General and Commissioner for Refugees Petition No 206 of 2014 – (Disapproved)

South Africa

1. Sonderup v Tondelli & another 2001 (1) SA 1711 – (Mentioned)

2. S v M [2007] ZACC 18 – (Considered)

Statutes

East Africa

1. Constitution of Kenya, 2010 articles 2(5) (6); 20(3); 22; 23(3); 24(1)(d) (e) (3); 25;26; 27(4);28; 29(d) (f); 39 (1) (2) (3); 47(1); 53 (1) (d) (2); 238  - (Interpreted)

2. Children Act, 2001 (Act No 8 of 2001) sections 4(2); 6 (1); 7; 13(1); 18 – (Interpreted)

3. Refugees Act, 2006 sections 7(2) (d); 16(2); 25 (f) – (Interpreted)

South Africa

1. South African Constitution section 28(2)

 

International Instruments

 1. African Charter on Human and Peoples’ Rights (ACHPR)  (1998)

 2. African Charter on the Rights and Welfare of the Child (African Children’s Charter) (1999)

 3. Convention Relating to the Status of Refugees, (1951) articles 2, 26

 4. International Covenant on Civil and Political Rights (ICCPR) 1966

 5. Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969)

 6. Protocol Relating to the Status of Refugees (1967)

 7. United Nations Convention on the Rights of the Child (CRC) (1989) article 9

 8. Universal Declaration of Human Rights (UDHR) (1948)

Advocates

1. Miss Komo h/ b for Mr Kaliuki for Petitioner

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Obedi Kilonzo Kevevo V Republic [2015]

Case Number: Criminal Appeal 77 of 2015 Date Delivered: 18 Dec 2015

Judge: Martha Karambu Koome, George Benedict Maina Kariuki, Fatuma sichale

Court: Court of Appeal at Nairobi

Parties: Obedi Kilonzo Kevevo v Republic

Citation: Obedi Kilonzo Kevevo V Republic [2015]

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Marti Telecommunications Ltd V G4s Security Services (K) Limited [2015] eKLR

Case Number: Civil Appeal 317 of 2010 Date Delivered: 18 Dec 2015

Judge: Festus Azangalala, Philomena Mbete Mwilu, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Marti Telecommunications Ltd v G4s Security Services (K) Limited

Citation: Marti Telecommunications Ltd V G4s Security Services (K) Limited [2015] eKLR

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Five Forty Aviation Limited V Tradewinds Aviation Services Limited [2015] eKLR

Case Number: Civil Appeal 52 of 2010 Date Delivered: 18 Dec 2015

Judge: Alnashir Ramazanali Magan Visram, Hannah Magondi Okwengu, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: Five Forty Aviation limited v Tradewinds Aviation Services Limited

Citation: Five Forty Aviation Limited V Tradewinds Aviation Services Limited [2015] eKLR

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Lydia Wanjiku Wanyee Suing As The Administrator Of The Estate Of The Late George Wanyee V George Nyanja [2015] eKLR

Case Number: Civil Appeal 178 of 2008 Date Delivered: 18 Dec 2015

Judge: Hannah Magondi Okwengu, Mohammed Abdullahi Warsame, Festus Azangalala

Court: Court of Appeal at Nairobi

Parties: Lydia Wanjiku Wanyee suing as the administrator of the estate of the Late George Wanyee v George Nyanja

Citation: Lydia Wanjiku Wanyee Suing As The Administrator Of The Estate Of The Late George Wanyee V George Nyanja [2015] eKLR

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Macharia Wa Kamau & 2 Others V Attorney General [2015] eKLR

Case Number: Petition 207 of 2013 Date Delivered: 18 Dec 2015

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Macharia Wa Kamau, George Gichuki Kamau & Joseph kanyingi Kamau v Attorney General

Citation: Macharia Wa Kamau & 2 Others V Attorney General [2015] eKLR

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Okiya Omtatah Okoiti V Attorney General & 5 Others [2015] eKLR

Case Number: Petition 70 of 2014 Date Delivered: 18 Dec 2015

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Okiya Omtatah Okoiti v Attorney General, Principal Secretary Labour,Principal Secretary Health, Principal Secretary Devolution, Public Service Commission (Psc) & Kenya National Union of Nurses (Knun)

Citation: Okiya Omtatah Okoiti V Attorney General & 5 Others [2015] eKLR

Prohibition of Strikes in Essential Services under the Labour Relations Act, 2007 Unconstitutional

Okiya Omtatah Okoiti v Attorney General & 5 others

Petition No 70 of 2014

High Court at Nairobi

Employments and Labour Relations Court

M N Nduma J

December 18, 2015

Reported by Phoebe Ida Ayaya

 

Brief facts

In contravention of section 81(3) of the Labour Relations Act, 2007 that prohibited strikes or lock- outs in essential services, The Kenya National Union of Nurses (6th Respondent) issued a 21 day strike notice and called for nationwide strike by nurses. The reason for the strike was;

(i) failure by the Government to sign and facilitate registration of the negotiated Collective Bargaining  Agreement (CBA).

(ii) failure by the Government to confirm into permanent  and pensionable terms of service all nurses on contract  (ESPS and Capacity).

Similar past strikes in the health sector that was an essential service provider had resulted in the great suffering, and even deaths of innocent Kenyans who could not afford and/or access medication in private health care facilities. There was no comprehensive policy and legal framework for the amicable resolution of labour disputes in the health sector or even in other essential services. There was then the urgent need to establish the necessary comprehensive policy and legal framework for the amicable resolution of labour disputes in the health sector or even in other essential services.

 

Issues

i. Whether the Court had jurisdiction to hear and determine the Petition;

ii. Whether the Petitioner had clearly brought out the constitutional violations by the 1st to 5th Respondents;

iii. Whether section 81(3) of the Labour Relations Act, 2007 that prohibited strikes or lockouts in essential services was sufficient for purposes of limiting the enjoyment of rights as provided in article 24 (1-3) of the Constitution of Kenya, 2010;

iv. Whether a declaration could be issued that there was need for a comprehensive policy and legal framework for the amicable resolution of labour disputes in essential services, including in health;

v. Whether refusal to sign the concluded Collective Bargaining Agreement by the 3rd and 5th Respondents was constitutional and lawful;

vi. Whether the 3rd and 5th Respondents could be compelled to absorb the Economic stimulus programme (ESP) Health Workers into permanent and pensionable terms of employment;

vii. Whether filing a Cross Petition within a petition amounted to an abuse of the court process by the Applicant.

 

Jurisdiction – Employment and Labour relations matters– jurisdiction of the High Court vis a vis the Employment and labour Relations  Court  in entertaining disputes incidental to those of employment and labour relations – Constitution of Kenya, 2010 article 162(2) (a);165(5) (b)

Constitutional law – fundamental rights and freedoms - a right or fundamental freedom in the Bill of Rights- whether an individual or group of individuals can institute court proceedings on behalf of others claiming breach of a right or fundamental freedom – the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, Constitution of Kenya 2010 article 22(2) (b)

Civil Practice and Procedure - abuse of court process – what amounted to abuse of court process- cross petition- whether filing a cross petition within a petition amounted to an abuse of the court process by the applicant

Labour Law – employer & employee relationship – right to a strike or lock – out – whether health services were essential services thereby not amenable to a right to strike or lock  out – whether parties calling for a strike needed to provide notice before doing so – Labour Relations Act, 2007 section 76 and 81

Statutes-interpretation of statutes- Labour Relations Act sections 78 and 81 -statutes enacted before the promulgation of the Constitution- provisions of Labour Relations Act sections 78 and 81 with regards to right and limitation to strikes by health workers employees vis a vis the Constitution of Kenya, 2010 - Labour Relations Act sections 78 and 81

 

Relevant Statutes

Constitution of Kenya, 2010

Article 165(5)

The High Court shall not have jurisdiction in respect of matters –

(b)  Falling within the jurisdiction of the Courts contemplated in article 162(2).

Article 24(1)

 a right or fundamental freedom in the Bill of Rights shall not be limited except by law and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including;

 a.  The nature of the right on fundamental freedom;

 b.  The importance of the purpose of the limitation;

 c.  The nature and extent of the limitation;

 d.  The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

 e.  The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Clause (1), a provision in legislation limiting a right or fundamental freedoms;

a. …………

b.  Shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and

 c.  Shall not limit the right or fundamental freedom so far as to derogate from its core on essential service.

 

Labour Relations Act, 2007

Section 76

i.  the cause for the strike, which must be a demand with respect to terms and conditions of service or the recognition of a trade union;

 ii.  the procedure to be followed before the workers engage in the strike are as follows;

 a.  the dispute is unresolved after conciliation under the Act; or

 b.  as specified in a registered collective bargaining agreement;

 c.  a seven days written notice of the strike has been given to the other parties and to the minister by the authorized representative of the trade union.

 

Section 78 (1) under (a) (b) (c) (d) (e) & (h) 

 a.  where a law, Court, Collective agreement, or recognition agreement prohibits a strike;

 b.  where the subject matter of the strike is regulated by a collective agreement or recognition agreement.

 c.  if the parties have agreed to refer the trade dispute to the Industrial Court or to arbitration.

 d.  in the case of a dispute on recognition, the trade union has referred the matter to the Court.

 e.  the trade dispute was not referred for conciliation in terms of the Act or a collective agreement providing for conciliation.

 f.  the strike or lock-out constitutes a sympathetic strike or lock-out.

 

Section 81

(1)   In this part ‘essential services’ means a service the interruption of which would probably endanger the life of a person or health of the population or any part of the population.

 (2)     The Minister after consultation with the Board –

 1.  Shall from time to time amend the list of essential services contained in the Fourth Schedule; and

 2.  May declare any other service an ‘essential service’ for the purpose of this Section if a strike or lock-out is so prolonged as to endanger the life, person or health of the population or any part of the population.

 3.  There shall be no strike or lock out in essential service.

 4.  Any trade dispute in a service that is listed as or is declared to be an essential service may be adjudicated upon by the Industrial Court.

 5.  A collective agreement may provide that any service may be deemed to be an essential service.

 

Held

  1. The Court had exclusive jurisdiction over such matters by dint of the subject matter of the dispute as set out in the Petition. The lawfulness or otherwise of strikes in the essential service; the adequacy of statutory dispute resolution mechanism in the essential service and terms and conditions of service of nurses serving in the County Governments were matters of Employment and Labour Relations described under article 162(2) of the Constitution of Kenya, 2010 as read with section 12 of the Employment and Labour Relations Act, 2014.
  2. Sections 76 and 81 of the Labour Relations Act, 2007 were enacted before the Constitution of Kenya, 2010. The sections limited the right to go on strikes provided in the Labour Relations Act, 2007. On the other hand article 41(2) (d) of the Constitution guaranteed every worker the right to go on strike.
  3. Sections 76 and 81 placed procedural limitations on the right to go on strike provided under article 41 (2) (d) of the Constitution.  The section further restricted strike actions to only disputes to do with terms and conditions of service.
  4. The limitations under sections 76 and 81 were clear and specific and did not derogate from the core or essential content of the right to strike. To this extent, sections 81(3) and 78 (1)(f) purported to nullify the right to go on strike provided under article 41 (2)(d) of the Constitution. These sections did not meet the legal standards set under article 24 (2)(c), as read with article 41 (2) (d) of the Constitution of Kenya, 2010.
  5.  Workers in Kenya had a right to go on strike as provided under article 41 (2) (d) of the Constitution. The right to go on strike was adequately limited under section 76 of the Labour Relations Act, 2007.
  6. Section 78 (1) under (a) (b) (c) (d) (e) & (h) of the Labour Relations Act, 2007 set out circumstances under which a strike was automatically illegal and prohibited participation in such a strike. These limitations conformed to article 24 of the Constitution and constituted adequate control of the right to go on strike. The court was concerned with the prohibition of strikes in essential service under section 78 (1) (f) and section 81 (3) of the Labour Relations Act, 2007. The provisions derogated from the core content of the right to strike provided under article 41 (2) (d) of the Constitution and the legislature should revisit the law with a view to remove the apparent conflict between the Constitutional provision and the statutory law.
  7. Employees in the essential service only needed to conclude a collective bargaining agreement that provided an effective frame work for expedient dispute resolution where the employer delayed conclusion of a collective bargaining agreement, otherwise, the Labour Relations Act, 2007, provided sufficient dispute resolution mechanisms that included, mandatory conciliation before the matter was escalated for adjudication in Court. The Petitioner did not establish a case on a balance of probability to be granted the reliefs sought.
  8. The Cross Petition where the 6th Respondent sought the court to allow the Petition and the Cross-petition as pleaded, the 6th Respondent being not opposed to the Petition itself, could not be heard to file a Cross-Petition in the same vein.  The action by the 6th Respondent amounted to collusion with the Petitioner thus amounted to an abuse of the court process.
  9. It was in the interest of good labour relations, and harmony in the sector that a collective bargaining agreement(s) be concluded with the respective employer(s) of the employees in the Health Sector.
  10.  Since the health employees were to enjoy uniform terms across the counties, it was useful that a common collective bargaining agreement did cover health workers across all the Counties.  It was futile to conclude a collective agreement between the Union and the National Government if indeed the employer of the Health Workers was the County Government in line with the Devolved Government. A joint negotiations mechanism vide the Council of Governors was a more useful platform for the purpose.

Petition and Cross Petition dismissed with no order as to costs.

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Powers of the Director of Public Prosecutions to Institute Extradition Proceedings

Samuel Kimuchu Gichuru & another v Attorney General & 3 others

Constitutional Application 111 of 2013

High Court at Nairobi

I Lenaola, J

December 18, 2015

Reported by Phoebe Ida Ayaya

 

Brief facts

The Attorney General of the Island of Jersey wrote a letter requesting Amos Wako, Kenya’s Attorney General then, to commence extradition proceedings against the two Applicants. While the letter was addressed to the Attorney General of Kenya, the authority to commence the extradition proceedings was in fact given by the Director of Public Prosecution (DPP) and Miscellaneous Application No.9 of 2011 filed in the Chief Magistrates’ Court at Nairobi to commence the said proceedings. The subjects in those extradition proceedings (the Applicants) raised preliminary issues and specifically contested that the DPP had no power to institute extradition proceedings since they were not criminal proceedings but proceedings sui generis.

In a ruling, the Magistrate’s Court dismissed their application to refer the said issues for determination by the High Court and the Court held that extradition proceedings were criminal in character and that the DPP had the constitutional mandate to institute and undertake criminal proceedings, and further that the DPP was right in commencing the said proceedings.

It was that ruling which aggrieved the Applicants who moved the court by filing a Constitutional Application under article 165(6) & (7) of the Constitution, section 19 of the Sixth Schedule to the Constitution, as read together with Rule 2 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006.

Issues:

  1. Whether the extradition proceedings before the Magistrate’s Court were a nullity having been instituted by the DPP;

a)     What was the nature of extradition proceedings and were they criminal or proceedings sui generis?

b)     Who had the authority to issue the proceedings in an extradition matter: the Attorney General or the Director of Public Prosecutions (DPP)?

  1. Whether the economic and money laundering offences occasioned by the Applicants met the dual criminality test;
  2. Whether the constitutional rights and freedoms of the Applicants had been violated or would be violated in the event that they were extradited to Jersey;
  3. Whether there had been delay in the extradition proceedings and whether delay had been proved;
  4. Whether the Jersey legal system conformed to some legal principles such as separation of powers and whether under such a system, the Applicants were certain not to enjoy their right to fair hearing as enshrined in article 50 of the Constitution of Kenya, 2010;
  5. Whether the Applicants were entitled to the personal attendance in court of the 5 named persons so as to ensure a fair extradition hearing;
  6. What was the effect of alleged prior publicity to the extradition proceedings;
  7. Whether the extradition proceedings were an abuse of the Court process.

 

Constitutional law– Office of the Director of Public Prosecutions – functions and powers - institution of criminal proceedings-whether the DPP had legal authority to institute extradition proceedings- Constitution of Kenya, 2010 article 157(6

Constitutional law – fundamental rights and freedom – right to fair trial- whether the constitutional rights and freedoms of the Applicants had been violated or would be violated in the event that they were extradited to Jersey- whether the constitutional rights and freedoms of the Applicants had been violated or would be violated in the event that they were extradited to Jersey- Constitution of Kenya, 2010 article 50

Jurisdiction-jurisdiction of the Magistrates Court - extradition proceedings- proceedings under the Extradition (Commonwealth Countries) (cap 77)-whether the Magistrate’s Court had jurisdiction to entertain extradition proceedings- Constitution of Kenya, 2010 article 165(6)

Extradition - extradition proceedings - procedure in such proceedings - circumstances in which extradition may be ordered - What was the nature of extradition proceedings and were they criminal or proceedings sui generis- who had the authority to issue the proceedings in an extradition matter: the Attorney General or the Director of Public Prosecutions (DPP)- Extradition  (Commonwealth Countries) Act (cap 77) sections 2,4,9(5)

International law – treaties and conventions – nature and extent of application of treaties – supremacy of the Constitution and sovereignty of the people vis-à-vis the Rome Statute and conventions ratified by Kenya-legitimacy of the Jersey legal system

Civil Practice and Procedure - abuse of court process – what amounted to abuse of court process- whether the extradition proceedings were an abuse of the court process

Word and Phrases- -fugitive- definition- a criminal suspect or a witness in a criminal case who flees, evades, or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony- Black’s Law Dictionary 9th Edition

 

Relevant Provisions of the Law

Constitution of Kenya, 2010

Article 165(6)

 The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

 (7)    For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration justice.”

Article 157(6)       

 The Director of Public prosecutions shall exercise State powers of prosecution and may-

a)    institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

b)    take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

c)    subject to clause (7) and (8), discontinue at any stage before judgement is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

 

Constitution of Kenya ( Repealed)

 Section 26(3)

 The Attorney general shall have power in any case in which he considers it desirable so to do-

a)    to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed by that person;

b)    to take over and continue any such criminal proceedings that have been instituted or undertaken by another person or authority; and

c)    to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or another person or authority.

 

Extradition  (Commonwealth Countries) Act (cap 77)

Section 2

 “Means any person who is or is suspected of being in or on his way to Kenya and whose surrender is requested under this Act on grounds that he is accused of or is unlawfully at large after conviction for an extradition offence committed within the jurisdiction of the requesting country.”

Section 4

 4 (1)  For the purposes of this Act, an offence is an extradition offence if-

a)    It is an offence against the law of a requesting country which, however described in that law, falls within any of the descriptions contained in the schedule and is punishable under that law with imprisonment for a term of twelve months or any greater punishment;

b)    The act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of Kenya if it took place within Kenya or, in the case of an extraterritorial offence, in corresponding circumstances outside Kenya.

 

Section 9(5)

9(5)   Where the court has received an authority to proceed in respect of a fugitive arrested, and it is satisfied, after hearing any evidence tendered in support of the request for the surrender or on behalf of the fugitive, that the offence to which the authority to proceed relates is an extradition offence, and if further satisfied-

a)    where the fugitive  is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed in Kenya; or

b)   

 

Held

  1. While the Court could not and would not shy away from exercising its supervisory mandate, the Courts were to always guard against abuse of that power so that it was not used as a judicial fiat to curtail and bar those whom the High Court was to supervise from exercising their constitutional mandate where their acts were not ultra vires the Constitution of Kenya, 2010. The power was never meant to suffocate those institutions but to guard them from falling off the narrow path that was the constitutional one.
  2. The validity of the extradition proceedings i.e. Miscellaneous Application No.9 of 2011 lay at the core of the determination of the Petition.  The Extradition (Commonwealth Countries) Act was the starting point in determining the nature of extradition proceedings. The Act in its preamble stated that it was an Act of Parliament to make provision for the surrender by Kenya to other Commonwealth countries of persons accused or convicted of offences in those countries, to regulate the treatment of persons accused or convicted of offences in Kenya who were returned to Kenya from such countries; and for purposes incidental thereto and connected therewith.
  3. The two striking words from the definition were accused and conviction. These words found their place well in the criminal realm of the law because for a person to be accused and convicted, he must have committed an offence that was prescribed by the penal law of the land.
  4. Penal offences are necessarily the cornerstone of criminal law and proceedings and so the Act is concerned with regulating the proceedings of individuals accused or convicted of offences prescribed by the penal laws of either of the two States involved. Further, the chain of activities that lead to extradition proceedings or the making of a request by one State to another is worth evaluating. In that regard, one must have been accused or convicted of an offence for such proceedings to be commenced. Both an accusation and conviction can only be legitimately made before and by a Court exercising criminal jurisdiction.
  5. It is such a Court that had the jurisdiction to convict an accused person if proved, to the requisite standard, as having committed the offence with which he is charged with. In addition, upon institution of any criminal proceedings, the next step in the chain of events will ordinarily be the extradition proceedings to ensure the attendance of the subject in a Court of the requesting State.  It is noted that the criminal element in such a case is not lost, although, it was true that the International Law as regards the relations between States comes into play, the criminal chain of the initial charge could not be said to have been broken. The extradition proceedings that were undertaken continue bearing the criminal nature of the initial criminal proceedings in the requesting country.
  6. Extradition proceedings were criminal proceedings. They were of course criminal proceedings of a very special kind, but criminal proceedings nonetheless. The mandate to conduct them in Kenya was by the Principal Legal Advisor of the Government the Attorney General had power to institute and undertake all criminal proceedings, save for those before a Court-martial.
  7. The provisions of the Extradition (Commonwealth Countries) Act and in particular section 7(1) and (3) conferred jurisdiction to issue authority to proceed to the Attorney General. The court was also alive to the provisions of article 157 of the Constitution. Article 157 of the Constitution established the office of the Director of Public Prosecutions as an independent office that was previously under the office of the Attorney General. In the Repealed Constitution, the Attorney general was in charge of all criminal proceedings. Under the sixth schedule of the Constitution, section 7 all cases in force immediately before the effective date continued in force and were to be construed with the alterations, adaptations, qualifications and extensions necessary to bring it in conformity with the Constitution. It therefore meant that the Director of Public Prosecutions started performing some of the roles that the Attorney General had performed earlier. The roles specifically involved exercising state powers in instituting and undertaking criminal proceedings against any person before any court other than a court martial.
  8. The Attorney General did not delegate the power to issue the authority to proceed but it was taken away from him by the Constitution and given to the Director of Public Prosecutions who was merely exercising it in this case. The Constitution of Kenya, 2010 being the supreme law could be read to conform and construed with the alterations, adaptations, qualifications and extensions as may be necessary. This was one case where the adaptation and alterations were necessary to conform to the Constitution on the functions of the office of the Director of Public Prosecutions.
  9. The dawn of the Constitution of Kenya, 2010 came with fundamental changes. The Constitution was a transformative charter that completely altered the social setting of the Government and its institution. Unlike the conventional liberal Constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of today’s Constitution was to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy.
  10. Constitutional change was a revolution and as such, it came with the shedding of old rules.  Such a change in a constitutional manner was in the form of realignment of duties and obligations within the government structure. New institutions were created that take over powers and obligations from existing institutions. Some existing institutions and state organs were split, while others are abolished all together.
  11. The Constitution of Kenya, 2010 was a bold attempt to restructure the Kenyan State. It was a radical revision of the terms of a social contract whose vitality had long expired and which, for the most part, was dysfunctional, unresponsive, and unrepresentative of the peoples’ future aspirations. The success of this initiative to fundamentally restructure and reorder the Kenyan State was not guaranteed. It was to be nurtured, aided, assisted and supported by citizens and institutions.
  12. The Courts were to patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as they exercise their constitutional mandates, being conscious that their very infancy exposed them not only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order
  13. By dint of article 165(3)(d) of the Constitution, the Court was under a constitutional duty to protect the mandate and integrity of all constitutional institutions, offices and state organs. This role, by extension, fell on all courts. However, the High Court had been placed at the heart of this duty as the entry point in constitutional issues. The office of the Attorney General was to realize that while extradition proceedings were under its belt under the Constitution of Kenya (Repealed), the ground shifted with the Constitution of Kenya, 2010.  The Office of the Director of Public Prosecution was now an Independent office distinct from the Attorney General’s office and the Court had a duty to protect all institutions and offices created by the Constitution from infringement on their mandate including that of the DPP.  However, while the DPP had the mandate to institute and authorize extradition proceedings, the two offices were to work together.
  14. The international element in extradition proceedings meant that countries could continue to send requests through the Attorney General and the Attorney General was under a duty to respect the Constitution by forwarding such requests for action by the DPP as he had in fact been doing. That was the spirit of co-operation and harmony that ran through the Constitution.
  15. The extradition proceedings instituted in the Magistrate’s Court were valid as the authority to proceed was issued by the DPP who had the legal authority to issue such an authority. While the Act provided that the Attorney General was the one to issue the authority to proceed, the onus now fell on Parliament and the Kenya Law Reform Commission to amend the Extradition (Commonwealth Countries) Act and bring it into conformity with the Constitution. Before that was done, the pragmatic approach was the one adopted by the Magistrate’s Court when it read section 7(1) of the Act with the adaptations envisaged in section 7 of the Sixth Schedule of the Constitution so as to bring it into inconformity with the Constitution. 
  16. Section 2 of the Extradition (Commonwealth Countries) Act defined the Court as the Resident Magistrate’s Court.  This was important so as to clearly indicate the Court that had the jurisdiction to hear and determine extradition applications.  In execution of that mandate, the Magistrate’s Court also had power to hear and determine proceedings for committal under section 9 of the Act.  Under the same section, the court would determine whether evidence had been sufficiently adduced to warrant trial for the alleged offence.
  17. The evidence adduced would be evaluated by the court guided by the criteria provided by section 4 of the Extradition (Commonwealth Countries) Act that defined extradition offences. In a nutshell, before a surrender order was made, a full trial was undertaken under and as proscribed by the Act. The background was imperative in examining whether the alleged constitutional contraventions had indeed been perpetrated and what remedy, if any, was available to the Applicants.
  18. The Magistrate’s Court correctly interpreted its role under section 9(5) of the Extradition (Commonwealth Countries) Act and held that such people and their evidence, if they were to be called, was a matter outside its mandate and that each party ought to make out its case and call its witnesses as it wished. Having noted the provisions of section 9(5) of the Extradition (Commonwealth Countries) Act and Clauses 5(1) and (2) of the London Scheme of Extradition within the Commonwealth, the jurisdiction of the court as conferred by the statutes, that it could only amount to fair trial if each party was allowed to call witnesses and evidence it desired in so far as it related to the proceedings before the court without any undue interference from the court. The request by the parties was rejected. The Director of Public Prosecutions was at liberty to call its witnesses without any direction from the Court.
  19. A Court of law could not present a case for a party, more so in Kenya’s adversarial system of litigation. One of the tenets that guided the Courts was impartiality and no Court could decide for a party which witnesses to call or which evidence to adduce. As regards the submission that the named persons may be accomplices, that issue could not be a ground for alleging discrimination under the Constitution. It was not foreign in law for one to be charged for an offence he/she committed with others not before the court. Criminal liability was personal even in instances of offences committed by people jointly.
  20. Discrimination under article 27 of the Constitution could hardly be invoked in circumstances where criminal liability was attributable to an individual.  Neither the Magistrate’s Court nor the Court could therefore properly at the stage of the extradition proceedings purport to determine the criminal liability of persons who were not before them as there was no evidence to enable the Court make such a determination. There was no basis for finding that there was any discrimination in the institution of the extradition proceedings.
  21. The two words: suspected and accused, as in the definition of a fugitive, in no way connoted culpability and loss of the presumption of innocent that was irreversible. It was a trite legal principle that an accused person was presumed innocent until proved guilty. This was a universal legal principle that could not be taken away even in extradition proceedings. The nature of extradition proceedings was to determine whether grounds for surrender of a person to the requesting country, where he/she would undergo a trial proper for the alleged offences, had been met. All through the extradition proceedings, the surrender and the trial before the requesting State Court, if the surrender was finally made, one’s presumption of innocence remained intact.
  22. The Applicants were criminal suspects accused of commission of some offences and the term fugitive as used in the Extradition (Commonwealth Countries) Act was a legal term.  Parliament in enacting the said Act was conscious of its use and the court had no reason to believe that Parliament never intended that the word could be derogatory and used so as to permeate one’s presumption of innocence. Parliament was in fact categorical on what it meant by use of the word hence the definition it accorded it.  If the Applicants felt that the word was derogatory, then the best approach was to petition Parliament and seek an amendment to the Act and delete it. Until that was done, the word was a legal one. The term had a universal meaning and application that was not limited to Kenya and its use could not amount to grounds for lack of a fair hearing. 
  23. The Court with jurisdiction in extradition matters was the Magistrate’s Court. The High Court’s jurisdiction was limited under sections 10, 11 and 12 of the Extradition (Commonwealth Countries) Act and while this Application was rightly before the court as a constitutional application, the argument by the Applicants flew on the face of the law because it had not yet been decided by the extradition Court that the Applicants could definitely be extradited. Their apprehensions that could be competently dealt with by the Magistrate’s Court were therefore misplaced. 
  24. As a Court established by article 169 of the Constitution, the Magistrate’s Court was bound in exercise of its mandate to protect and defend the Constitution. The contrary had not been shown in this case as against that Court.
  25. In the spirit and honour of our international obligations, Kenya would not enter into an agreement with a State and turn its back on it. The fundamental question was whether Kenya had an extradition agreement with the Island of Jersey and if yes, it befell on all State organs to have to honour that agreement. That was the rationale behind the principle of pact sunt servanda (meaning agreements must be kept) as used in international law.
  26. Before a State like Kenya ratified any treaty or entered into any contractual agreement with another State, the state law office (Office of the Attorney General) and the ministry in charge of foreign affairs were to do due diligence. Before Kenya agreed to enter into an extradition agreement with the Island of Jersey it was right to assume that it was satisfied that its legal system met all the rules of fairness and legality.
  27. The said legal system could not be termed as oppressive now that the state has sought extradition orders against them. The Applicants could not have their cake and eat it. When they wanted favourable orders, they approached the Jersey Courts and now that the Island of Jersey required them, they could not claim that that system was bad. What was good for the goose was to be good for the gander. The Jersey legal system was not weak that it could not grant the Applicants a fair trial.
  28. Right from the beginning of proceedings before the Magistrates’ Court, it had been the Applicants’ case that their extradition proceedings had drawn a lot of publicity and that they were apprehensive that they could not get a fair trial. The fact that the Applicants were public figures  (a fact conceded by the Applicants themselves) and the fact that the offences with which they were accused of were of the nature of economic crimes could necessarily throw this matter squarely in the eye of the general public. Generally, Courts decided cases on the facts and evidence before them and not on the public opinion shaped by the publicity elicited by the matter.
  29. The Applicants were to be tried by qualified, competent and independent judicial officers who were not easily influenced by statements made by politicians to the press media publicity per se did not constitute of itself a violation of a party’s right to a fair hearing. It could therefore not warrant a referral to the High Court for a constitutional interpretation.
  30. Liberty like other human rights was not absolute. It could be limited under article 24 of the Constitution and criminal law was concerned with finding a basis for limiting one’s liberty. Hence extradition proceedings, as long as they were conducted in accordance with the law, in no way infringed on a person’s liberty.
  31. Having found that the Magistrates’ Court was the court with jurisdiction to conduct extradition proceedings under the Act, the Court was not about to usurp that jurisdiction. The law as regarded the dual criminality principle was well captured in section 4 of the Extradition (Commonwealth Countries) Act. This was the law that the extradition court would apply and as the miscellaneous application before that Court was yet to be canvassed, it could not be argued that the principle of dual criminality and the law had been wrongly applied.
  32. On the delay in bringing the charges against the Applicants and whether or not the extradition proceedings had been brought as an abuse to the Court process were all legitimate questions that fell within the mandate and power of the Magistrate’s Court that heard and determined the extradition motion. The Magistrates’ Court correctly appreciated this when it held that these issues had been raised too early in the day and would be dealt with, if and when duly raised.
  33. The Applicants were to argue their case before the right forum and such substantive issues that went to the determination of an application whether or not a Court could dismiss an application for surrender or go ahead and order surrender could not be made the subject of preliminary applications so as to defeat an extradition application by way of judicial fiat.
  34. It was a general principle that costs would ordinarily follow the event. However, since the dawn of the Constitution 2010, especially article 22(2) that had expanded the arena of those persons with the locus standi to approach the Court to defend the Bill of Rights, there had been an apparent paradigm shift with regard to award of costs in public interest litigation matters and/or matters that involved interpretation of the Constitution. This was meant to ensure that people were not to fear the burden of costs at the peril of not protecting the Constitution in public interest litigation.
  35. While this Application was majorly concerned with the alleged contravention of the Applicants’ fundamental rights and freedoms under the Constitution, the matter had also contributed to public interest litigation (PIL). Through this matter, the Court had the occasion to expound on the fundamental question of the powers of the DPP vis -a- vis the AG as related to extradition proceedings; and the mandate of the extradition court among other issues.

Orders

 i. The Originating Notice of Motion dated and filed on February15, 2013 dismissed.

 ii. The Conservatory Orders issued on February15, 2013 vacated.

 iii. The proceedings before the Magistrate’s Court in Miscellaneous Application No.9 of 2011 valid.

 iv. The Magistrate’s Court Ruling in Miscellaneous Application No.9 of 2011 rendered on February 5, 2013 affirmed. 

 v. The Chief Magistrates’ Court Miscellaneous Application No.9 of 2011 should be expeditiously mentioned before the Hon Chief Magistrate for directions with the aim of its hearing in a timeous manner.

 vi. No orders for costs.

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 Circumstances in which circumstantial evidence would be sufficient in proving the offence of murder

 

Milton Kabulit & 4 others v Republic

Criminal Appeal No 340 of 2012

Court of Appeal at Nairobi

(Sitting at Nakuru)

R N Nambuye, P M Mwilu & S Gatembu Kairu, JJ A

December 17, 2015

 

Reported by Beryl A Ikamari

 

Brief facts

Non-Governmental Organizations and other service providers were operating Lokichogio in an area known as U N Camp. UNICEF (United Nations Children Education Fund) was one of the organizations within the Camp. UNICEF gave 3 months’ notice of its intention to move to Juba, Sudan. LMCS (Lokichogio Multipurpose Co-operative Society Limited), an institution that offered security services, stood to suffer losses as a result of the move. The officials of LMCS included the 4th Appellant as the Chairman, PW 6 as its Vice-Chairman and PW 7 as its Treasurer.

LMCS identified the World Food Programme (WFP) as a possible consumer of its services. The deceased, Silence Chirara, was the head of the World Food Programme. The deceased gave a hostile response to the attempts to have LMCS’ services consumed by WFP. It was alleged that LMCS hatched a plot to terrify the deceased with a gun and create the impression that Lokichogio was insecure without their security services.

On May 7, 2008, at the 748 Hotel, there was a party for the launch of the Lokichogio New Control Tower. The deceased was a guest at the party. PW 1 stated that he went to the party with the 4th Appellant, as they were out that night and they saw the gathering at the Hotel. PW1 also stated that he saw the 4th Appellant communicating via mobile phone with the 3rd Appellant. At around 10.00 pm while the deceased was leaving the hotel, gunshots directed at his vehicle were heard. The deceased was fatally injured.

The Appellants were charged with the murder of the deceased and they were convicted of murder at the High Court. It was found that Appellants had a common intention to murder the deceased. Particularly, the 4th Appellant was part of the planning team which decided on the use of a gun, and monitored the deceased's movements at the fateful night, the 1st Appellant obtained the gun and the person who would pull the trigger, the 2nd Appellant pulled the trigger, the 5th Appellant provided the gun and the 3rd Appellant pointed out the deceased as a target to the 2nd Appellant.

The Appellants sought to challenge the High Court decision at the Court of Appeal. At the High Court they defended themselves on various grounds including offering an alibi defence. The 1st Appellant stated that he was not at the party but was at work until 8.00 pm when he left for his home which was 4km away. The 2nd Appellant stated that he only arrived at Lokichogio 2 days before his arrest and that he had spent 6 months at Lotere near Kakuma at the Kenya Uganda border herding goats. The 3rd Appellant stated that at the fateful night his wife suffered a miscarriage and he spent the night with her at Hospital. The 4th Appellant admitted to being at the party but only incidentally as his intended destination for the night was North Camp. The 5th Appellant's testimony was that he did not have knowledge of the gun which was allegedly owned by him.

 

Issues

  1. Whether the murder weapon had been identified given discrepancies in the serial numbers and the date of its recovery.
  2. Whether there had been a failure to call material witnesses with respect to the recovery of the murder weapon from the 5th Appellant’s manyatta after the commission of the offence and identification of the murder weapon.
  3. Whether the evidence tendered was circumstantial evidence and whether it was capable of sustaining the conviction.

 

Criminal Law-murder-causation and malice aforethought-nature of proof required in order to establish the commission of the offence of murder-Penal Code (Cap 63), sections 203 & 206.

Criminal Law-parties to an offence-principal offenders-common intent-circumstances in which accused persons would be deemed to have formed a common intent to commit an offence-situations where accused persons allegedly played different roles which culminated in murder-Penal Code (Cap 63) sections 20, 21 & 22.

Evidence Law-standard of proof-proof of facts via testimony-whether the failure to call some witnesses to prove a particular fact constituted a failure to call material witnesses-Evidence Act (Cap 80), section 143.

Evidence Law-standard of proof-use of circumstantial evidence-circumstances in which circumstantial evidence would be sufficient to establish the commission of an offence

 

Held

1.      In a first Appeal, the Appellate Court’s mandate was to undertake a fresh and exhaustive examination of the evidence tendered at the trial Court and to draw its own conclusions and reach at a decision. The trial Court had a duty to reconcile any discrepancies alleged to exist in the evidence and where the Appellate Court found that there was a failure to reconcile such discrepancies, it had an obligation to reconcile them and to determine whether the discrepancies went to the root of the prosecution’s case.

2.      Under section 203 of the Penal Code, in order to secure a conviction for the offence of murder, three elements had to be proved. Namely; the death of the deceased and the cause of that death, the commission of the unlawful act which caused death by the Appellants and the harbouring of malice aforethought by the Appellants.

3.      Under section 206 of the Penal Code, there were three elements, each of which would constitute malice aforethought.  The first element entailed intent to cause death or grievous bodily harm to a person. The second was the commission of an unlawful act or omission which would probably cause a person’s death or grievous harm while being indifferent as to whether death or grievous harm would be caused. Lastly, the third element constituted intent to commit a felony. Proof of any of these elements was proof of malice aforethought.

4.      It was proved that the deceased died of gunshot wounds and that gunshots were directed at the left-hand side of the vehicle where the deceased was seated as the driver. A doctor’s finding was that the cause of the deceased’s death was massive haemorrhage from bullet wounds.

5.      There were a total of 7 bullets directed at the left-hand side of the vehicle where the deceased was seated. As a result, the deceased had injuries concentrated in the lower limb. The person who inflicted the injuries had the intention to cause harm or to kill and both intentions were elements of malice aforethought as defined in section 206 of the Penal Code.

6.      Sections 20, 21 & 22 of the Penal Code made for provisions with respect to circumstances in which accused persons would be said to have a common intention to commit an offence. The common intention would mean that they would all be charged with actually committing the offence. At the High Court a finding was made to the effect that the there was a common intent amongst the Appellants to murder the deceased. It was found that the 4th Appellant was part of the planning team which decided on the use of a gun, the 1st Appellant obtained the gun and the person who would pull the trigger, the 2nd Appellant pulled the trigger, the gun was procured from the 5th Appellant and the 3rd Appellant pointed out the deceased as a target to the 2nd Appellant.

7.      The Appellants denied the existence of the common intention and said that they were innocent. They pointed out discrepancies with respect to the serial number of the murder weapon and the date in which the murder weapon was recovered as indicated in the OB records. The discrepancies required interrogation.

8.      With respect to the serial number of the murder weapon, PW 13 stated that an entry of 82KQ 3425 had been changed to read 82KQ 3426 with digit six (6) being overwritten on digit five (5). The explanation he offered was that the change was effected to correct an error and that he had only examined one firearm. The evidence tendered did not include indications of the existence of another firearm.

9.      On the question as to when the murder weapon was recovered, an explanation was offered by PW 3. He stated that the firearm was handed over to them on December 12, 2008 and they started their journey to Lokichogio. It was however late and they spent the night at Lorimet and they arrived at Lokichogio on December 13, 2008 where they handed over the gun to PW 13.

10. It was evident that the murder weapon was a gun. It had also been shown that only one weapon was used.

11. There were allegations that there was a failure to call witnesses to establish the recovery of the murder weapon from the 5th Appellant’s manyatta after the commission of the murder. However, under section 143 of the Evidence Act, no particular number of witnesses was required in order to establish any fact.

12. PW15, PW 16 and PW19 indicated that they had obtained recorded statements from intended prosecution witnesses who declined to testify because they were related to the suspects. The explanation offered was reasonable. There was nothing to suggest that the intended witnesses were withheld by the prosecution because they had adverse evidence.

13. The role of the mechanics from Toyota Kenya was to remove bullet heads from the vehicle and to hand them over to PW14. They handed over 5 bullets in that respect. Bullets were also recovered from the deceased’s body and they were handed over by PW 10 to PW 13. PW 13 found that the bullets recovered from the body were not fit for forensic examination.

14. Failure to factor in the 2 bullets from the deceased’s body into the prosecution’s evidence was inconsequential to the success or otherwise of the prosecution’s case and no miscarriage of justice was suffered by the Appellants. Proof that such evidence was withheld because it would have been prejudicial to the prosecution’s case had not been tendered.

15. The evidence tendered included circumstantial evidence which entailed evidence of events or circumstances which provided a basis for an inference that certain facts existed. The following factors tended to confirm the truthfulness of information given to investigation officers  by potential witnesses, witnesses who subsequently testified in Court, the Appellants and undisclosed informers;

a.)  The uncontroverted evidence of PW3 was that the murder weapon was found in Lorimet 50 km from Lokichogio.

b.)  The inclusion of the 2nd Appellant and the 5th Appellant indicated that the murder plot included persons who were not members of LMCS.

c.)  It was apparent that there was bad blood between the deceased and the officials of LMCS as indicated in the admissions of Joseph Chacha and Jonathan Mermug that the deceased had expressed open displeasure at their work ethics and performance. Joseph Chacha received a verbal warning and Jonathan Mermug received a written warning.

d.)  The only account of an attempt on the life of the deceased was at the 748 Hotel where there was an opportunity which was not generally available at the UN camp. The UN camp was fenced all round with an electric wall and all its entry and exit points were manned by guards.

e.)  The deceased died of gunshot wounds and that fact was confirmed in the testimonies of PW 8, PW 10, PW 13, PW 14 and PW 17.

f.)     It was shown that the gun tendered in evidence was the murder weapon. The uncontroverted evidence of PW 12 was that a forensic examination of the empty cartridges recovered at the scene of murder had been fired from an AK47 rifle. After further examination and testing, he was of the opinion that it was the gun tendered in evidence that was used in the murder.

g.)  The grey bag which was used to store the gun, was recovered by PW 2 from a house in the 5th Appellant’s manyatta, the day after the murder was committed.

h.)  Reliance was placed on mobile phone conversations between the 3rd Appellant, who pointed out the deceased to the 2nd Appellant, who was to pull the trigger and the 4th Appellant who was to keep track of the deceased’s movement on the material night.

16. The evidence on the profiling of the mobile conversations was gathered in a casual manner; no entries were made in the OB nor was the sheet of paper on which the mobile numbers were written, signed. However, what was crucial was whether the details of the mobile numbers on the sheets of paper could be profiled for evidentiary purposes.

17. Mobile phone conversations were treated confidentially and they could only be accessed for purposes of investigations. PW 18 indicated that PW 13 asked for profiling and not the content of the conversation. A Court Order would be required if what was asked for was the content of the conversation.

18. The profiling data was circumstantial evidence which added credence to the testimony of PW 1 that there was a conversation between the 3rd and 4th Appellants shortly after the 4th  Appellant saw the deceased at a party at the 748 Hotel and as soon as the deceased departed from the Hotel.

19. The Appellants had a common intention to murder the deceased. They had possession of the murder weapon, knowledge of its procurement, the purpose of its procurement, knowledge of its movement from the place of procurement to the scene of murder and they counselled each other in the execution of the murder.

 

Appeal dismissed and conviction affirmed.

 

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John Mutuma Gatobu v Republic

Criminal Appeal No 78 of 2013

Court of Appeal of Kenya at Nyeri

R N Nambuye, P O Kiage & F Sichale, JJA

December 17th, 2015

Reported by Teddy Musiga

 

Brief facts

The appellant was charged with murder at the High Court of Kenya at Meru. A conviction and sentence of death was imposed on him. He was aggrieved by that decision and filed the instant appeal on the grounds that he was convicted on circumstantial evidence that did not meet the laid down requirements; the trial court relied on evidence that was contradictory and inconsistent in nature; it relied on extraneous matters; failed to consider the appellant’s alibi defence and convicted the appellant against the weight of evidence of mere suspicion and that the ingredients of murder were also not proved.

 

Issues:

        i.            Whether a conviction could be obtained based on circumstantial evidence.

   ii.            Whether fatal injuries inflicted upon a deceased person were themselves sufficient proof of malice aforethought as defined by section 206 of the Penal Code.

 

Evidence Law – admissibility of evidence – circumstantial evidence - whether a conviction could be obtained based on circumstantial evidence.

 

Criminal Practise and Procedure – sentencing – whether a conviction could be obtained based on circumstantial evidence

 

Criminal Practise and Procedure – Murder – malice aforethought as an element for the crime of murder – whether fatal injuries inflicted upon a deceased person were themselves sufficient proof of malice aforethought – Penal Code, section 206

 

 

Section 206 of the Penal Code provided that;

Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances;

 (a) An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

  (b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is cause or not, or by a wish that it may not be caused;

 (c) An intent to commit a felony;

  (d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

 

Held:

1.     It was common ground that the entire case against the appellant was circumstantial. In order to justify a finding of guilt, the circumstantial evidence taken as a whole, had to be such that inculpatory facts had to lead to the irresistible conclusion of guilt and there had to be an absence of any co – existent facts that were exculpatory or explicable on any other reasonable hypothesis save the guilt of the person accused.

2.     The evidence of PW3 (the appellant’s father); that he called the appellant who answered from inside the house and muttered something PW3 could not make out to be could be construed to place the appellant squarely at the scene of the crime, which was, moreover his own dwelling house. Thus, PW3 could not have merely made an assumption.

3.     The appellant’s alleged alibi defense was unbelievable given cogent and unshaken evidence that placed him right inside the house of death, coupled with his conduct thereafter that revealed a man unmoved and unfazed by the deadly find in his house. He was not a man cruelly bereaved, but one who had himself dispatched to his family.

4.     The circumstantial evidence tendered by the prosecution was neither suspicion nor conjecture as contended for the appellant, but compelling in character leading to a finding that he did the deed.

5.     Malice aforethought could only be used in a technical sense as properly defined under section 206 of the Penal Code. There was nothing in that definition that denoted the popular meaning of malice as ill will or wishing harm and all the related negative feelings. Nor, for that matter was, it to be confused with motive as such. The Kenyan law did not require proof of motive, plan or desire to kill in order for the offence of murder to stand proved, though the existence of those could go on to the proof of malice aforethought.

 

Appeal dismissed

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