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Republic V Director Of Public Prosecution (DPP) & 2 Others [2015] eKLR

Case Number: Miscellaneous Civil Application 25 of 2015 Date Delivered: 21 Oct 2015

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Director of Public Prosecution (DPP), Inspector General of the National Police Service & OCS Kasarani Police Station

Citation: Republic V Director Of Public Prosecution (DPP) & 2 Others [2015] eKLR

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Rosina Nawekulo Wafula & Another V Nikasio Makokha Wafula [2015] eKLR

Case Number: Succession Cause 726 of 2009 Date Delivered: 21 Oct 2015

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: Rosina Nawekulo Wafula & another v Nikasio Makokha Wafula

Citation: Rosina Nawekulo Wafula & Another V Nikasio Makokha Wafula [2015] eKLR

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Dominic Ochieng Odoyo & Another V Republic [2015] eKLR

Case Number: Criminal Appeal 84 & 83 of 2014 (Consolidated) Date Delivered: 21 Oct 2015

Judge: Mrima Antony Charo

Court: High Court at Migori

Parties: Dominic Ochieng Odoyo & Maricus Ajiando Jalango v Republic

Citation: Dominic Ochieng Odoyo & Another V Republic [2015] eKLR

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Jeremiah Mutie Muthusi V Republic [2015] eKLR

Case Number: Criminal Appeal 353 of 2015 Date Delivered: 21 Oct 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Jeremiah Mutie Muthusi v Republic

Citation: Jeremiah Mutie Muthusi V Republic [2015] eKLR

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Waweru Mathu J. M V Danson Otachi Chionja & Another [2015] eKLR

Case Number: Environment & Land 234 of 2013 Date Delivered: 21 Oct 2015

Judge: Munyao Sila

Court: Environment and Land Court at Nakuru

Parties: Waweru Mathu J. M v Danson Otachi Chionja & Ongere Otachi

Citation: Waweru Mathu J. M V Danson Otachi Chionja & Another [2015] eKLR

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Peter Mwangi Kariuki V Republic [2015] eKLR

Case Number: Criminal Appeal 57 of 2012 Date Delivered: 21 Oct 2015

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Peter Mwangi Kariuki v Republic

Citation: Peter Mwangi Kariuki V Republic [2015] eKLR

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Jennifer Waithira Mwangi V Gikuru Kazibwe & Company & Another [2015] eKLR

Case Number: Cause 1888 of 2013 Date Delivered: 21 Oct 2015

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Jennifer Waithira Mwangi v Gikuru Kazibwe & Company & Nelson Gikuru

Citation: Jennifer Waithira Mwangi V Gikuru Kazibwe & Company & Another [2015] eKLR

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Republic V Land Dispute Tribunal, Mauche Ex-Parte Dishon Nyutu Muiru & Anoather [2015] eKLR

Case Number: Miscellaneous Application 632 of 2006 Date Delivered: 21 Oct 2015

Judge: Munyao Sila

Court: High Court at Nakuru

Parties: Republic v Land Dispute Tribunal, Mauche Ex-Parte Dishon Nyutu Muiru & Wesly Rugut

Citation: Republic V Land Dispute Tribunal, Mauche Ex-Parte Dishon Nyutu Muiru & Anoather [2015] eKLR

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Willis Otieno Omuga V Republic [2015] eKLR

Case Number: Criminal Appeal 44 of 2015 Date Delivered: 21 Oct 2015

Judge: Mrima Antony Charo

Court: High Court at Migori

Parties: Willis Otieno Omuga v Republic

Citation: Willis Otieno Omuga V Republic [2015] eKLR

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Kenya Chemical & Allied Workers Union V Noble Gases Limited [2015] eKLR

Case Number: Cause 1179 of 2011 Date Delivered: 21 Oct 2015

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Chemical & Allied Workers Union v Noble Gases Limited

Citation: Kenya Chemical & Allied Workers Union V Noble Gases Limited [2015] eKLR

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Veronica Wambui V Michael Wanjohi Mathenge [2015] eKLR

Case Number: Civil Appeal 95b of 2012 Date Delivered: 21 Oct 2015

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Veronica Wambui v Michael Wanjohi Mathenge

Citation: Veronica Wambui V Michael Wanjohi Mathenge [2015] eKLR

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Nebart Njeru Munyi V Nicholas Muriithi Zakaria [2015] eKLR

Case Number: Civil Appeal 82 of 2012 Date Delivered: 21 Oct 2015

Judge: Florence Nyaguthii Muchemi

Court: High Court at Embu

Parties: Nebart Njeru Munyi v Nicholas Muriithi Zakaria

Citation: Nebart Njeru Munyi V Nicholas Muriithi Zakaria [2015] eKLR

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Mastermind Tobacco (K) Ltd V Jane Miyogo & Another [2016] eKLR

Case Number: Civil Appeal 413 of 2013 Date Delivered: 21 Oct 2015

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mastermind Tobacco (K) Ltd v Jane Miyogo & Jared Moriasi (Suing As The Personal Representatives And Administrators Of The Estate Of Jackson nyakundi Onyancha)

Citation: Mastermind Tobacco (K) Ltd V Jane Miyogo & Another [2016] eKLR

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Brian Ongeri Machuka V Kenya Medical Supplies Authority [2015] eKLR

Case Number: Cause 1193 of 2014 Date Delivered: 19 Oct 2015

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Brian Ongeri Machuka v Kenya Medical Supplies Authority

Citation: Brian Ongeri Machuka V Kenya Medical Supplies Authority [2015] eKLR

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Alex Ndirangu V Republic [2015] eKLR

Case Number: Criminal Appeal 43 of 2013 Date Delivered: 19 Oct 2015

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Alex Ndirangu v Republic

Citation: Alex Ndirangu V Republic [2015] eKLR

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Gilbert Kiptum Ngetich V Republic [2015] eKLR

Case Number: Criminal Appeal Case 8 of 2015 Date Delivered: 19 Oct 2015

Judge: Nagillah Chrispin Beda

Court: High Court at Nyamira

Parties: Gilbert Kiptum Ngetich v Republic

Citation: Gilbert Kiptum Ngetich V Republic [2015] eKLR

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Bilha Fwende Masinde V Subumba Farmers Co-op Society [2015] eKLR

Case Number: Cause 107 of 2014 Date Delivered: 19 Oct 2015

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Bilha Fwende Masinde v Subumba Farmers Co-op Society

Citation: Bilha Fwende Masinde V Subumba Farmers Co-op Society [2015] eKLR

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Zephaniah Omae Orenge V Republic [2015] eKLR

Case Number: Criminal Appeal 2 of 2009 Date Delivered: 19 Oct 2015

Judge: Luka Kiprotich Kimaru, Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Zephaniah Omae Orenge v Republic

Citation: Zephaniah Omae Orenge V Republic [2015] eKLR

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Ezekiel Omwoyo V Republic [2015] eKLR

Case Number: Criminal Appeal 9 of 2013 Date Delivered: 19 Oct 2015

Judge: Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Kisumu

Parties: Ezekiel Omwoyo v Republic

Citation: Ezekiel Omwoyo V Republic [2015] eKLR

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J K K V Republic [2015] eKLR

Case Number: Criminal Appeal 6 of 2015 Date Delivered: 19 Oct 2015

Judge: Alnashir Ramazanali Magan Visram, Erastus Mwaniki Githinji, Fatuma sichale

Court: Court of Appeal at Nairobi

Parties: J K K v Republic

Citation: J K K V Republic [2015] eKLR

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Paul Odhiambo Oloo V Republic [2015] eKLR

Case Number: Criminal Appeal 10 of 2015 Date Delivered: 19 Oct 2015

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: Paul Odhiambo Oloo v Republic

Citation: Paul Odhiambo Oloo V Republic [2015] eKLR

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Nicholas Kiptoo Arap Korir Salat V Independent Electoral And Boundaries Commission & 7 Others [2015] eKLR

Case Number: Petition 23 of 2014 Date Delivered: 19 Oct 2015

Judge: Philip Kiptoo Tunoi, Kalpana Hasmukhrai Rawal, Jackton Boma Ojwang, Willy Munywoki Mutunga, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission, Wilfred Rotich Lesan, Robert Siolei Returning Officer Bomet County, Kennedy Onchayo, Wilfred Wainaina, Patrick Wanyama, Mark Manzo & Abdikadir Shiekh

Citation: Nicholas Kiptoo Arap Korir Salat V Independent Electoral And Boundaries Commission & 7 Others [2015] eKLR

Scrutiny & Recount of Votes is a discretionary order of the Court

Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others

Supreme Court at Nairobi

Petition No. 23 of 2014

M.W. Mutunga, CJ,K.H. Rawal, DCJ, P.K. Tunoi, J.B. Ojwang’,N.S. Ndungu, SC.JJ

October 19, 2015

Reported by Emma Kinya Mwobobia

 

The instant application was limited to the elements cited in Rule 33(4) of the Elections (Parliamentary and County Elections) Petition Rules, 2013. It was based on the grounds that: voter turn-out had been inflated in favour of the 2nd respondent at certain polling stations; the respondents had fraudulently manipulated documents to conceal irregularities and electoral malpractices; the 1st respondent did not conduct the election in an impartial, neutral, efficient, accurate and accountable manner and there were manifest variations in the results announced and declared in terms of documentation and records in certain polling stations. The appellant urged that unless Orders for scrutiny and recount were granted, he would suffer irreparable loss and damage.

 

Further to the grounds adduced within the application, the timing of delivery of the instant Judgment was the subject of two letters by the appellant’s advocate, which was brought to the attention of the Supreme Court, one addressed to the Honourable Chief Justice and President of the Supreme Court and the other to the Registrar of the Supreme Court. His apprehension was thus expressed, “The appellant is concerned on the legal ramification that may ensue, should the Judgement be delivered after the lapse of 60 days as contained in Order 21 of the Civil Procedure Rules and the fact that it is now in the public domain that the Judicial Service Commission [JSC] has directed Judges over 70 years [of age] not to preside over matters.  The delivery of the pending Judgment may be affected by [ongoing] legal challenges. Your urgent consideration of the matter will be highly appreciated.”

 

Issues:

  1. Whether the filing of the appeal was irregular by virtue of filing it as an originating petition contemplated by section 12 of the Supreme Court Rules instead of a petition of Appeal pursuant to rule 33 of the Supreme Court Rules
  2. Whether the Appellate Court properly interpreted the provisions of Section 82 of the Elections Act, Rule 33 of the Elections (Parliamentary and County) Petition Rules and Regulation 77 of the General Elections Regulations
  3. Whether the Appellate Court properly applied the provisions of the Elections Act, The Election Petition Rules and the General Election Regulations to the evidence on record
  4. Whether the Appellate Court properly applied the law on scrutiny and recount
  5. Whether it was proper for the court to substantively determine an issue that had not been raised by the parties and did not form part of the submissions in the appeal

Electoral law – election petition – nullification of election – vote tallying -  scrutiny & recount of votes – allegation of election malpractices and irregularities and that the 1st respondent did not conduct the election in an impartial, neutral, efficient, accurate and accountable manner - effect of errors & irregularities- relevance of vote margin in nullifying or upholding elections  - whether the appellate court erred in its appreciation of the legal effect of errors and irregularities upon an election-Elections Act section 82;Elections (Parliamentary and County Elections) Petition Rules, 2013 rule 33;General Elections Regulations regulation 77

Constitutional Law – fundamental rights and freedoms – right to a fair hearing – allegation that the appellant’s right to a fair hearing had been violated by the fact that the court ventilated and determined an issue that was not appealed against nor materially affected the outcome of the appeal – principle of adherence of national values  and the rule of law - Constitution of Kenya, 2010,  article 10, 50 (1)

Jurisdiction – Supreme Court jurisdiction – jurisdiction of the Supreme Court to hear and determine an issue that had not been pleaded or canvassed by the parties during submissions – whether the court erred in determining an issue that was not canvassed by parties within the matter or related to the matter before court

Held:

  1. An appeal of such a kind should not have been held to fail on mere account of form. Although the Rules of the Supreme Court gave guidance on the form which an appeal should take, article 159(2)(d) of the Constitution accorded precedence to substance over form. Rule 3(5) of the Supreme Court Rules empowered the Supreme Court to invoke its inherent power to make such Orders and directions as were necessary for the attainment of the ends of justice and to prevent the abuse of Court process. 
  2. In order to serve the sanctified task of interpreting the Constitution, and for the purpose of resolving the protracted electoral dispute, the court was guided by article 159(2) (d) of the Constitution towards saving the appeal for determination on merits. The presentation form in the appeal, by no means violated the mandatory tenets of the Constitution, or the law, so as to compel the striking out of the appeal in limine.  Though the petition was presented in its current form, the determination of the appeal would focus only on the issues canvassed, and as determined by the other superior Courts.
  3. The Elections Act empowered the Election Court to employ the tool of scrutiny and recount to verify the general integrity of the electoral process. Comparative jurisprudence signalled the importance of the mechanism in instances where the margin of votes was so narrow as to be affected by any transposition or tallying errors.  In such instances, Courts had ordered scrutiny and recount suo motu, and without the requirement that a sufficient basis be laid – though it was the exception rather than the rule, in practice.
  4. The appellant had, indeed, outlined the disputed polling stations, in the pleadings and accompanying affidavits with the required specificity and it prima facie, provided a basis for the grant of Orders of scrutiny and recount.  However, the determination of sufficiency was a task reserved to the discretion of the Election Court.
  5. Section 82 of the Elections Act and Rule 33 of the Election Petition Rules were the guiding provisions on the question of scrutiny. Regulation 77 of the General Elections Regulations dealt with the rejection of ballot papers during an election rather than scrutiny as a process initiated or allowed by the election Court in the course of electoral dispute settlement.
  6. Regulation 77 of the General Election Regulations applied to the voting process itself. The Commission was required to identify valid ballots through certain mechanisms such as proper serialisation, superintended by presiding officers. That constituted the first stage in the sifting process. The second stage was executed by way of Section 82 of the Elections Act through the procedure of scrutiny.  It was a narrower process as reflected in the more limited mandate of the Court.
  7. The scrutiny exercise was pegged upon the register maintained by the Commission which was to be produced as part of the discovery process. Any vote cast by a person whose name did not appear on the register ought to have been excluded from the final tally. Similarly, a person who voted at a polling station other than that at which he or she was registered ought to have been excluded from the tally. Therefore, the process of scrutiny had a broader intent than the singular event of actual recount.
  8. Votes proved to have been procured through bribery, treating, or undue influence also ought to have been excluded, on Court orders. If a petitioner proved that there were such election offences as bribery, treating, personification, or undue influence, the election Court ought to exclude the relevant votes from the final tally, either upon application by a party to the proceedings or on its own motion.
  9. The trial Court’s view of the purpose of scrutiny by virtue of Regulation 77, was inordinately restrictive. However, it had the discretion to determine whether the basis laid was sufficient to warrant the issuance of an Order for scrutiny and recount.  The trial court certainly had the advantage of relevant fact and evidence as it determined the question.
  10. There was a difference between laying a basis for scrutiny meant to evaluate the overall features of the election in relation to the electoral code and recount which was restricted to ascertaining the outcome. In order for scrutiny and recount to be granted, the Court was to be convinced that the disparities in the final tallies if considered, would materially affect the overall outcome.
  11. As an organising framework for electoral dispute resolution, the Commission was required to forward election reports to the Court trying an electoral cause (Elections Act, 2011, Section 82). The reports were drawn from the reports by the presiding and returning officers and were the raw material for the scrutiny process.
  12. There were three instances in which scrutiny could be sought:
  1. before the petition trial – in which case the petitioner would be seeking to persuade the Court to grant Orders by affidavit evidence;
  2. during the trial – where the petitioner adduces evidence to support a scrutiny while the trial proceeds; and
  3. at the end of the trial – where the petitioner had adduced all the evidence, and calls for scrutiny or recount, based on the evidence on record.

Scrutiny within any of the above categories would serve to ascertain the constitutional integrity of the electoral process. The Court, may require, by virtue of its discretion that a scrutiny of votes be conducted to ascertain the issues in dispute.

  1. There was no flaw with the Appellate Court’s majority decision which rightly in law in effect, upheld the trial Judge’s exercise of discretion in relation to the application for scrutiny and recount.

 

Appeal disallowed. Appellant to bear the costs of proceedings.

 

 

 

Contretemps afflicting judgment delivery: Apprehension by counsel.

Held:

  1. It was evident to the Court that the issue on retirement age of the judges was a matter of judicial notice qualifying for cognizance before the Supreme Court and so attended with appropriate, responsible judicial Orders.
  2. The cause in the instant, ultimate appeal was heard and determined by a Bench of five Judges one of whom, contrary to the prescribed constitutional safeguards, the Judicial Service Commission was purporting to debar from further participation in the discharge of the matter.
  3. An advocate’s communication coming to the Chief Justice and to the Registrar of the Supreme Court on a matter of such vital significance in the due discharge of the judicial mandate, an issue so intimately touching on the standing and responsibility of the Supreme Court, was for the due taking of judicial notice under the law which the court recognised.
  4. Security of tenure for all Judges under the Constitution was sacrosanct and was not amenable to variation by any person or agency such as the Judicial Service Commission which had no supervisory power over Judges in the conduct of their judicial mandate.
  5. The Judicial Service Commission lacked competence to direct or determine how, or when, a Judge in any of the Superior Courts may perform his or her judicial duty, or when he or she may or may not sit in Court. Any direction contrary to those principles, consequently, would be contrary to the terms of the Constitution which unequivocally safeguarded the independence of Judges. It followed that the said directive concerning Judges of the Superior Courts, issued by the Judicial Service Commission, was a nullity in law.
  6. The Court’s Bench as constituted by the Judges who rendered service in the instant case, indeed bore the constitutional mandate to hear and determine the cause at hand notwithstanding the apprehensions of the appellant’s counsel.

 

Per Mutunga CJ, dissenting

  1. The contents of the letter should neither have been treated as part of proceedings in the instant appeal nor been the basis for comment, holding, and finding in the judgment.
  2. The Court lacked the jurisdiction to entertain the contents of the letter. The apex Court ought to be properly moved within the confines of its jurisdiction provided in articles 163 (3), (4), (5) and (6) of the Constitution. In addition, the Bench majority had subverted established precedents of the apex Court on its jurisdiction.
  3. The Bench majority by invoking the rule of common law of judicial notice and the provisions of Section 60(1) (o) of the Evidence Act, to comment, make a finding and a holding on the basis of the said letter, had violated and subverted fundamental rights and freedoms of the parties to the appeal and third parties who were not part of the proceedings in the Appeal. They had also violated and subverted values and principles of the Constitution.
  4. The Bench majority by invoking the rule of common law of judicial notice and the provisions of the Evidence Act had failed to observe, respect, protect, promote, and fulfil the rights and fundamental freedoms enshrined in articles 21(1), 27 (1) and 50(1) of the Constitution. They had also not adopted an interpretation of the Evidence Act that favoured the enforcement of a right or fundamental freedom.
  5. By invoking the rule of common law of judicial notice and the provisions of the Evidence Act, the Bench majority failed to develop both the principle and the provisions of a statute to the extent that both did not give effect to the articles of the Constitution stated. The provisions of Article 20 (3) (a) and (b) of the Constitution had, indeed, torn away the last shreds of the perhaps comforting illusion, especially in the context of human rights, that judges in the common law system did not make law. The provisions meant that if any existing rule of common law did not adequately comply with the Bill of Rights, the court had the obligation to develop the rule so that it did comply. Additionally, the court had the obligation to interpret statute in a way that also complied with the Bill of Rights.
  6. In mainstreaming the theory of interpreting the Constitution, the rules of common law did not subvert the provisions of the Constitution which was the supreme law of the land. It was also clear that no statute could subvert the provisions of the supreme law.
  7. By arriving at a finding and a holding premised on a letter addressed by one party to the Chief Justice and President of Supreme Court in his administrative capacity, the Bench majority did not consider the respondents’ right of a fair hearing under article 50(1) of the Constitution.   There was no hearing on the contents of the letter. The other parties were not given the opportunity to respond to the letter and hence were not heard. Therefore, in arriving at a finding and a holding on the contents of the letter, the Bench majority violated fundamental principles of due process of the law pertaining to the parties to the appeal and the Judicial Service Commission, which was not a party to the appeal, also had its rights to be heard violated.
  8. Courts had a duty to uphold reasonable, fair and just procedures, in order to avoid the violation of an individual’s rights.  The right to a fair hearing also included the right to be heard and be accorded due process of the law.  Therefore, in all court cases, judicial officers were mandated to ensure that due process of the law was followed. The apex Court was no exception to those principles.
  9. Commenting, making a finding and a holding on the basis of a letter that was not part of the proceedings in the appeal violated and subverted the national values and principles articulated in article 10 of the Constitution and the authority and principles of justice under article 159 (1) and 159(2) (e). Article 159 (1) made it abundantly clear that judges derived their authority from the people of Kenya and the Constitution.
  10. Article 1(1) of the Constitution provided that all sovereign power belongs to the people and shall be exercised only in accordance with the Constitution. Therefore, Courts derived their authority from the article 1(1) and 159 (1). They were also commanded to adhere to the national values and principles enshrined in article 10 of the Constitution.
  11. All Courts ought to consider the principles and values of the rule of law, participation of the people, equity, inclusiveness, equality, human rights, transparency and accountability.  That was because the four corners of due process of the law, specifically the right to be heard and the right to a fair hearing required that both parties be heard if an issue was raised before the court in order to accord the court the opportunity to pronounce itself on the issue.  The Bench majority, in commenting, making a finding and a holding based on the letter violated all the constitutional national values and principles. That action on the part of the majority Bench smacked of a worrying form of judicial impunity.
  12. The instant scenario was yet another example of the Bench majority subverting an existing precedent. Judicial officers should not even decide cases on the sole basis of an authority they dig up in the comfort of their chambers without allowing counsel to address them on the said authority.  Due process was a fundamental pillar of the rule of law and our progressive constitutionalism.
  13. Two Judges of the Bench majority were parties in two separate cases pending in the High Court on issues that may have touched on the contents of the letter and had sued the Judicial Service Commission. The seriousness of the instant matter was gleaned by reading the finding and the holding of the Bench majority on the issue of security of tenure of the judges. Yet again, the Bench majority chose to disregard an existing precedent of the Court. Pronouncements that were premature on issues pending before other courts also disrupted the constitutional set up of the hierarchy of courts.  The Supreme Court had on several occasions affirmed the competence and jurisdiction of other courts.
  14. The ripeness principle was one that was to be zealously guarded and avoid falling into the trap of judges pronouncing on matters that were not properly before them, more so those that were still finding their way up the judicial hierarchy.
  15. The comments, finding, and holding on the letter in question formed extraneous questions defined as those that were beyond or beside the point to be decided.  The last part of the majority judgment dealt with extraneous issues that should not have been included in the judgment.  Those issues were neither found in the submissions of the parties nor did they form the issues framed by the Court for determination. Moreover, no party before the Court sought any reliefs in that regard.  For a court to arrive at a finding and hold on a matter, that matter ought to have been fully canvassed by all the parties concerned.
  16. Article 163(7) of the Constitution provided that all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court.  Section 3 of the Supreme Court Act while confirming the Supreme Court as a court of final judicial authority decreed that the Court asserted the supremacy of the Constitution and the sovereignty of the people of Kenya and provided authoritative and impartial interpretation of the Constitution. That authority and power was derived from the people of Kenya which was a great constitutional responsibility that lay heavily on the shoulders of the Supreme Court. Clearly, the comments, finding, and holding on the basis of the letter were at best obiter dicta.
  17. The Court no longer acted as a court when it changed the nature of the case the parties brought in order to create an opportunity to change the law, when it reached out to decide issues not properly before it and not based on a record or decisions below, and when it was less than candid about its reasoning. The final judicial authority of the Supreme Court was sacrosanct and should not have been exercised by violating any provisions of the Constitution.
  18. (Obiter) “In deference to the majority Bench I wanted to be sure they were not invoking the epistolary jurisdiction a hallmark of the Indian Supreme Court’s invention and innovation. The Supreme Court of India adopted epistolary jurisdiction for matters concerning public interest litigation and in order to determine cases touching on the fundamental rights in the Constitution. Flexibility in pleading rules did not subvert the parties’ right to a fair hearing.  The Judges if they deemed it expedient would have required a report from the concerned party before being registered as a writ petition and setting it down for hearing.  Clearly, even if my learned sisters and brothers sought to invoke the epistolary jurisdiction they would not have made comments, a finding and a holding without hearing the parties.”

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Standard Chartered Bank Of Kenya Limited V David Hudson Njuguna & Another [2015] eKLR

Case Number: Civil Appeal 447 of 2010 Date Delivered: 19 Oct 2015

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Standard Chartered Bank of Kenya Limited v David Hudson Njuguna & Miu Electric Company Ltd

Citation: Standard Chartered Bank Of Kenya Limited V David Hudson Njuguna & Another [2015] eKLR

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Republic V Sylvester Wafula Makokha [2015] eKLR

Case Number: Criminal Case 7 of 2012 Date Delivered: 19 Oct 2015

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: Republic v Sylvester Wafula Makokha

Citation: Republic V Sylvester Wafula Makokha [2015] eKLR

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Minister For Finance & Commissioner Of Insurance As Licensing And Regulating Officers V Charles Lutta Kasamani T/A Kasamani & Co. Advocates [2015] eKLR

Case Number: Civil Appeal 281 of 2005 Date Delivered: 19 Oct 2015

Judge: Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Kisumu

Parties: Minister for Finance & Commissioner of Insurance as Licensing and Regulating Officers v Charles Lutta Kasamani T/A Kasamani & Co. Advocates

Citation: Minister For Finance & Commissioner Of Insurance As Licensing And Regulating Officers V Charles Lutta Kasamani T/A Kasamani & Co. Advocates [2015] eKLR

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Geoffrey Mongare Ondimu V Republic [2015] eKLR

Case Number: Miscellaneous Application 2 of 2015 Date Delivered: 19 Oct 2015

Judge: Nagillah Chrispin Beda

Court: High Court at Nyamira

Parties: Geoffrey Mongare Ondimu v Republic

Citation: Geoffrey Mongare Ondimu V Republic [2015] eKLR

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In Re Estate Of Chemase Afubwa (Deceased) [2015] eKLR

Case Number: Succession Cause 290 of 2008 Date Delivered: 19 Oct 2015

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: In re Estate of Chemase Afubwa (Deceased)

Citation: In Re Estate Of Chemase Afubwa (Deceased) [2015] eKLR

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Peter Walemba Isaya V Republic [2015] eKLR

Case Number: Criminal Appeal 31 of 2013 Date Delivered: 19 Oct 2015

Judge: Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Kisumu

Parties: Peter Walemba Isaya v Republic

Citation: Peter Walemba Isaya V Republic [2015] eKLR

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Utolo Radolo V Nobert Radolo [2015] eKLR

Case Number: Succession Cause 2 of 1982 Date Delivered: 19 Oct 2015

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: Utolo Radolo v Nobert Radolo

Citation: Utolo Radolo V Nobert Radolo [2015] eKLR

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Uzima University College V Erasto Omollo & Another [2015] eKLR

Case Number: Civil Appeal 49 of 2014 Date Delivered: 19 Oct 2015

Judge: Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Kisumu

Parties: Uzima University College v Erasto Omollo & Catholic University of East Africa

Citation: Uzima University College V Erasto Omollo & Another [2015] eKLR

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Erick Akasa Odek & 2 Others V Republic [2015] eKLR

Case Number: Criminal Appeal 13 of 2015 Date Delivered: 19 Oct 2015

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: Erick Akasa Odek, David Owuori Nyakoi & Phoebe Atieno Dave v Republic

Citation: Erick Akasa Odek & 2 Others V Republic [2015] eKLR

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Francis Muteti Kimanzi V Republic [2015] eKLR

Case Number: Criminal Appeal 109 of 2014 Date Delivered: 19 Oct 2015

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Francis Muteti Kimanzi v Republic

Citation: Francis Muteti Kimanzi V Republic [2015] eKLR

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Paul Irungu Njeri V Republic [2015] eKLR

Case Number: Criminal Appeal 20 of 2014 Date Delivered: 19 Oct 2015

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Paul Irungu Njeri v Republic

Citation: Paul Irungu Njeri V Republic [2015] eKLR

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Joshua Batisi Makomere V Lubao Jaggery Factory Limited [2015] eKLR

Case Number: Civil Appeal 121 of 2013 Date Delivered: 19 Oct 2015

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: Joshua Batisi Makomere v Lubao Jaggery Factory Limited

Citation: Joshua Batisi Makomere V Lubao Jaggery Factory Limited [2015] eKLR

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Republic V National Land Commission & 2 Others Ex-parte Airways Holdings Limited [2015] eKLR

Case Number: Miscellaneous Application 275 of 2014 Date Delivered: 19 Oct 2015

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v National Land Commission, Registrar of Titles Land Titles Registry - Nairobi & Nairobi County Ex-parte Airways Holdings Limited

Citation: Republic V National Land Commission & 2 Others Ex-parte Airways Holdings Limited [2015] eKLR

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Jameny Mudaki Asava V Brown Otengo Asava & Another [2015] eKLR

Case Number: Civil Appeal 23 of 2014 Date Delivered: 19 Oct 2015

Judge: Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Kisumu

Parties: Jameny Mudaki Asava v Brown Otengo Asava & Authur Mwanzi Asava

Citation: Jameny Mudaki Asava V Brown Otengo Asava & Another [2015] eKLR

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Steel Makers Limited V CFC Stanbic Bank Limited [2015] eKLR

Case Number: Civil Case 683 of 2010 Date Delivered: 19 Oct 2015

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Steel Makers Limited v CFC Stanbic Bank Limited

Citation: Steel Makers Limited V CFC Stanbic Bank Limited [2015] eKLR

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Zephaniah Omae Orenge V Republic [2015] eKLR

Case Number: Criminal Appeal 2 of 2009 Date Delivered: 19 Oct 2015

Judge: Luka Kiprotich Kimaru, Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Zephaniah Omae Orenge v Republic

Citation: Zephaniah Omae Orenge V Republic [2015] eKLR

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John Karanja Wanjau & 4 Others V Maina Githaiga & 7 Others [2015

Case Number: Civil Case 4409 of 1991 Date Delivered: 19 Oct 2015

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Karanja Wanjau, James Waweru Kangethe, Douglas Muchoki, Kinuthia Njoroge & Gikonuo Kihumba v Maina Githaiga, John Ngethe, Daniel Mwangi Muhia, Mureithi Urugari, Kirugi Gathogo, John King’ara, Kamau Njora & Ali Hussein

Citation: John Karanja Wanjau & 4 Others V Maina Githaiga & 7 Others [2015

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Republic V J.O & Another [2015] eKLR

Case Number: Criminal Appeal 135 & 136 of 2014 Date Delivered: 19 Oct 2015

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: Republic v J.O & O.O [2015] eKLR

Citation: Republic V J.O & Another [2015] eKLR

The presumption that male children under the age of 12 years had no criminal responsibility in sexual offences could be rebutted by evidence showing the contrary.

 

Republic v J O & another

Criminal Appeal No 135 & 136 of 2014

High Court at Homa Bay

D S Majanja, J

October 19, 2015

 

Reported by Beryl A Ikamari

 

Brief facts 

The Respondents were children who faced charges of gang defilement contrary to section 10 of the Sexual Offences Act, 2006 with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.

The trial court rejected the charges under section 89(5) of the Criminal Procedure Code on the basis that they did not disclose an offence. Particularly, the age of the 1st Respondent was assessed by a medical superintendent and he was found to be approximately 12 years while the 2nd Respondent was found to be between 9 years and 12 years old. The magistrate rejected the charges while citing section 14(3) of the Penal Code which provided that a male person under the age of 12 years was presumed to be incapable of having carnal knowledge.

An appeal was lodged against the decision to reject the charges.

 

Issue

  1. The nature of the presumption that a male child under the age of 12 years was incapable of having carnal knowledge.
  2. Whether the provision under section 14(3) of the Penal Code which had the inclusion of the word ‘presumed’ connoted that the presumption was rebuttable in evidence
  3. Whether inquiry into the criminal responsibility of a child who was not criminally liable under the statute was necessary in rebuttal evidence

 

Criminal Law-criminal responsibility-presumption of innocence -presumption that a male child under the age of 12 years was incapable of having carnal knowledge - whether the presumption was rebuttable and could be displaced by providing proof of criminal responsibility-Criminal Procedure Code (Cap 75), section 89(5); Penal Code (Cap 63) section 14(3).

Statutes – Interpretation of statutes – interpretation of the inclusion of the word ‘rebuttable in a provision of a statute – impact and effect of the use of presumption in a statute – whether the use of the ‘presumption’ could be interpreted to mean that the presumption was not absolute but could be rebutted in evidence – Penal Code section 14 (3)

 

Penal Code (Cap 63), section 14

14. (1) A person under the age of eight years is not criminally responsible for any act or omission.

(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

(3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.

 

Held

  1. Section 14(1) of the Penal Code which shielded a child below the age of eight years, contained an absolute and irrebutable presumption that a child under that age was incapable of committing a criminal offence.  The use of the word “presumed” in section 14(3) of the Penal Code contained a rebuttable presumption, thus where the child was between the age of eight and twelve years the presumption that he was incapable of having carnal knowledge may be rebutted by calling evidence to the contrary.  The intent of the legislature was clear by inclusion of the word “presumed” from section 14(3) of the Penal Code. Conversely removal of the phrase “presumed to be” from the section would have made it clear that the presumption was irrebutable.
  2. The provisions of section 14(2) of the Penal Code captured the common law rebuttable presumption which operated to deem a child between the prescribed age group incapable of committing a criminal act. The accused child could only be held liable of the offence if the prosecution could rebut the presumption by showing that at the relevant time the child had the requisite mental capacity. 
  3. In order to surmount the presumption, the prosecution was entitled to present evidence of criminal capacity which may include mental or psychiatric assessments and evidence of the surrounding circumstances which would enable the court to determine whether the child was criminally liable.
  4. The trial court did not carry out an inquiry as to the criminal responsibility of the children but only dealt with the issue of age.  The issue of criminal responsibility was a question of fact which the State was entitled to rebut by marshalling appropriate evidence. At no time did the State present such evidence as such an opportunity was not afforded to it. The manner in which respondents answered when the charge was read to them was but one of the facts that the court would take into account in considering whether the State had proved that the children were criminally responsible.
  5. The trial court erred in rejecting the charges on account of the age of the children. The provisions of section 14(2) and 14(3) of the Penal Code were applicable in the instant case where the children were found to be below the age of 12 years and the State was entitled to call evidence to rebut the presumptions erected under those provisions.

Appeal allowed.

Order rejecting the charges set aside.

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Wachira Karani V Bildad Wachira [2015] eKLR

Case Number: Civil Case 101 of 2011 Date Delivered: 19 Oct 2015

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Wachira Karani v Bildad Wachira

Citation: Wachira Karani V Bildad Wachira [2015] eKLR

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Stephen Ouma Ogolla V Republic [2015] eKLR

Case Number: Criminal Appeal 4 of 2015 Date Delivered: 19 Oct 2015

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: Stephen Ouma Ogolla v Republic

Citation: Stephen Ouma Ogolla V Republic [2015] eKLR

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Clinton Ogworo Getande V Republic [2015] eKLR

Case Number: Misc Application 3 of 2015 Date Delivered: 19 Oct 2015

Judge: Nagillah Chrispin Beda

Court: High Court at Nyamira

Parties: Clinton Ogworo Getande v Republic

Citation: Clinton Ogworo Getande V Republic [2015] eKLR

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Safmarine Kenya Limited V KRK Impex PVT Limited & Another [2015] eKLR

Case Number: Civil Appeal 210 of 2011 Date Delivered: 16 Oct 2015

Judge: Hannah Magondi Okwengu, Mohammed Abdullahi Warsame, Philomena Mbete Mwilu

Court: Court of Appeal at Nairobi

Parties: Safmarine Kenya Limited v KRK Impex PVT Limited & Accord Metals (Kenya) Limited

Citation: Safmarine Kenya Limited V KRK Impex PVT Limited & Another [2015] eKLR

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Sarah Wanjiku Mutu & 2 Others V Philomena Njambi Mutu [2015] eKLR

Case Number: Civil Appeal 136 of 2009 Date Delivered: 16 Oct 2015

Judge: Alnashir Ramazanali Magan Visram, Erastus Mwaniki Githinji, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Sarah Wanjiku Mutu, Samuel Kimani Mutu & Abraham Mwangi Mutu v Philomena Njambi Mutu

Citation: Sarah Wanjiku Mutu & 2 Others V Philomena Njambi Mutu [2015] eKLR

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National Industrial Credit Bank Limited V Aquinas Francis Wasike & Another [2015] eKLR

Case Number: Civil Appeal 54 of 2007 Date Delivered: 16 Oct 2015

Judge: John Wycliffe Mwera, Festus Azangalala, Fatuma sichale

Court: Court of Appeal at Nairobi

Parties: National Industrial Credit Bank Limited v Aquinas Francis Wasike & Lantech Limited

Citation: National Industrial Credit Bank Limited V Aquinas Francis Wasike & Another [2015] eKLR

 

Financial Institutions can only charge interest stipulated in the contract

National Industrial Credit Bank Limited V Aquinas Francis Wasike & another

Court of Appeal at Nairobi

Civil Appeal No. 54 of 2007

Mwera, Azangalala & Sichale JJ.A

October 16th, 2015

Reported by Emma Kinya & Maxwell Mwangi

Brief Facts

The parties entered into a hire purchase agreement which the second respondent was a guarantor. The appellant had financed the 1st respondent to buy a motor vehicle registration for a principal sum of Sh.3,412,500/=. The agreement stated that the repayment was to be spread over 47 months at Sh.130,250/= per month. The hire purchase interest was agreed at Sh.2,871,960/=, worked on a flat rate of 21.04% p.a., with the motor vehicle as security. The total purchase price was therefore to be Sh.6,284,460/=.

In the alternative, it was also agreed that the 2nd respondent undertook to repay all the sums due and payable by the 1st respondent in event of a default by the deed of guarantee.

Though the 1st respondent had paid a total of 4,564,478/=,the appellant repossessed and sold the motor vehicle at 2,033,898/= to recover the 1st respondents arrears after alleging that there was a default. The appellant then allowed a rebate of 1,289,451/=, crediting it to the 1st respondent’s account thereby reducing the owed sum. The 1st respondent still remained in arrears of 445,531/=, 103,969/= on account of bank charges, repossession expenses and administration costs and another 469,392/= interest charged on late payments. The total came to 1,018,892/=.

The appellant suit for recovery of the amount owed was struck out because there was no agreement on late payment interest and that the specified interest rate was 21.04% and not 33.9% as varied by the appellant. Moreover, the respondent was awarded special damages for the lost amount after the sale of the motor vehicle. The appellant appealed the decision of the lower court.

Issues

  1. Whether the appellant was entitled to charge interest on installments paid late where the hire purchase agreement was silent.
  2. Whether the appellant was entitled to vary the interest on the hire purchase amount without informing the respondent.
  3. Whether the appellant was entitled to reposses and sell the motor vehicle after wrongful calculation of the amount outstanding.
  4. Whether the 1st respondent was entitled to special damages or general damages.

 

Contract Law - hire purchase agreement - variation of interest in a hire purchase agreement- late payment of installments - acceptance of installments paid late as waiver of interest - whether the appellant was entitled to charge interest on installments paid late where the hire purchase agreement was silent on the same - whether the appellant was entitled to vary the interest on the hire purchase amount without informing the respondent.

 

Held

  1. The question of the interest charges in the agreement led to the dispute. While the appellant maintained that under the agreement there was interest to be levied on late payment of instalments and that the flat rate of 21.04% stood to be revised and varied to 37% and then reduced to 33%p.a. as the appellant felt necessary, the respondents held the view that the flat rate was not revisable and there was no provision for levying of any interest on late payments.
  2. The space for “Late Payment true rate” had no indication as to the percentage rate payable. Unlike the specified flat interest rate space containing 21.04% p.a., the late payment part had no rate to be paid. The space was left blank which meant that no interest was intended or payable on any instalments that were not paid on time. If the parties intended that a charge of interest be levied on this, they would have said so by stating the rate of interest in the agreement. Therefore, there was no interest payable on late payment of instalments since a written contract was read, understood and applied by what it expressly said.
  3. The appellants’ position was that the 1st respondent’s account fell in arrears and so the motor vehicle was repossessed when a default occurred. The 1st Respondent paid a sum of Kshs. 4,564,478 of the total of Kshs. 6,284,460 by the time of repossession.  They had not paid the full amount since the amount due at the time of termination included a variation of the specified flat interest from 21.04% p.a. raised to 37% and back to 33.9% p.a.
  4. The appellant repossessed the motor vehicle and terminated the contract on a wholly wrongly and improperly computed sum, which it considered as due and owing in order to precipitate repossession. In that regard, the repossession was unlawful if not premature and the appellant was not entitled to it. The appellant was entitled to exercise the right to repossess, but not in the way it went about it. It used a wrong computation and arrived at the sum that informed the move to repossess and terminate the agreement.
  5.  The car being sold at 3 million was sold at an under value. The special damages were to be equivalent to the true value of the motor vehicle at the time it was sold.
  6. The trial court was in a position to determine the dispute but not on account of general damages as those did not normally fall to be awarded in cases where breach of a contract had been alleged and proved. That was not a case to apply the principle of restitution in integram since an error had not been found on the part of the agreement. Therefore, the High Court should have considered to award special damages, if the same had been pleaded and proved, and not general damages as it did.

 

The award to the 1st Respondent set aside. Suit against the 2nd respondent dismissed.

 

Cases

East Africa

1. Orion East Africa Ltd v Housing Finance Company of Kenya Ltd Civil Case No 914 of 2001 – (Distinguished)

2. Kenya Power & Lighting Company Ltd v Abel Momanyi Birundu Civil Appeal No 19 of 2011 - (Followed)

Statutes: None Referred to

Texts & Journals

1. Guest, AG., (Ed) (1994) Chitty on Contract London: Sweet & Maxwell  27th Edn Vol 2 para 36-224

2.  Trayner, J., (Ed) (1894) Latin Maxims & Phrases London: William Green & Sons 4th Edn

Advocates: None Mentioned

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V M K V Republic [2015] eKLR

Case Number: Criminal Appeal 118 of 2014 Date Delivered: 16 Oct 2015

Judge: Milton Stephen Asike Makhandia, William Ouko, Kathurima M'inoti

Court: Court of Appeal at Mombasa

Parties: V M K v Republic

Citation: V M K V Republic [2015] eKLR

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Bonaya Tutu Ipu & Another V Republic [2015] eKLR

Case Number: Criminal Appeal 43 & 50 of 2014 Date Delivered: 16 Oct 2015

Judge: Milton Stephen Asike Makhandia, William Ouko, Kathurima M'inoti

Court: Court of Appeal at Mombasa

Parties: Bonaya Tutu Ipu & Noel Buya Kamale v Republic

Citation: Bonaya Tutu Ipu & Another V Republic [2015] eKLR

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Kenneth Nyaga Mwige V Austin Kiguta & 2 Others [2015] eKLR

Case Number: Civil Appeal 140 of 2008 Date Delivered: 16 Oct 2015

Judge: Alnashir Ramazanali Magan Visram, Philomena Mbete Mwilu, James Otieno Odek

Court: Court of Appeal at Nairobi

Parties: Kenneth Nyaga Mwige v Austin Kiguta, Bedan Mbugua & The People Limited

Citation: Kenneth Nyaga Mwige V Austin Kiguta & 2 Others [2015] eKLR

Probative Value of Documents marked for Identification in A Court of Law

 

Kenneth Nyaga Mwige V Austine Kiguta & 2 Others

Civil Appeal NO. 140 of 2008

Court of Appeal at Nairobi

October 16, 2015

A Visram, P. M Mwilu, & J Otieno-Odek JJ.A.

Reported by Phoebe Ida Ayaya

 

 

Brief facts

 

 

The appellant filed a defamation suit against the three respondents. The 3rd respondent is the publisher and printer of the People Daily, a newspaper with national circulation in Kenya and elsewhere around the world. At all material times the 1st respondent was a reporter in the employ of the 3rd respondent while the 2nd respondent was the Editor-in-Chief of The People Daily newspaper. In the plaint, it is alleged that on 2nd August, 2000, the respondents falsely and maliciously printed and published or caused to be printed and published of and concerning the appellant the following words:

 “Arrest warrant for KACA Official By Austin Kiguta A Nairobi court yesterday issued a warrant of arrest for a Kenya Anti Corruption Authority (KACA) Officer who failed to report in the court to answer a charge of assaulting a woman. Addressing the court after the file was called and Kenneth Nyaga Mwige failed to show up, the prosecutor, Robert Maiko Kyaa, applied to the court to have the officer arrested and brought to court for his plea to be taken…. A Kibera Senior Resident Magistrate Joanne Siganga immediately issued the arrest warrant and directed the order to Kilimani Police Station for execution.”

The appellant averred that the words published were false and in their ordinary meaning were meant to mean that the appellant was a man of violent temperament, of uncouth character, unfit to hold office as a legal officer in the Kenya Anti-Corruption Authority, he is of criminal character and not fit to hold any office in society. The appellant averred that as a consequence of the said publication, his character and reputation was seriously damaged and he suffered distress and embarrassment. In a joint statement of defence, the respondents admitted publication of the said article and admitted that the article referred to the appellant. The respondents pleaded that the words as published and printed were an accurate account of the court record and copy of the charge sheet filed in court on 1st August 2000. The respondents denied that the words were calculated to disparage the appellant socially and professionally.

 

 

Issues:

              I.      What is the evidential effect of a document marked for identification that is neither formally produced in evidence nor marked as an exhibit?

            II.      Whether a document marked for identification part of evidence?

          III.      What weight should be placed on a document not marked as an exhibit?

 

Evidence – admission – document marked for identification  –– where the applicant sought to have the documents marked for identification as part of evidence- what is the rationale behind the weight to be placed on a document not marked as an exhibit- admissibility of such documents as evidence in a court of law

 

 

Held:

 

  1. The mere marking of a document for identification did not dispense with the formal proof thereof. Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved: -

a)    First, when the document is filed, the document though on file does not become part of the judicial record.

b)    Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document.

c)    Third, the document becomes proved, not proved or disproved when the Court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the Court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.

  1. The marking of a document was only for purposes of identification and was not proof of the contents of the document. The reason for marking was that while reading the record, the parties and the court were to be able to identify and know which was the document before the witness. The marking of a document for identification had no relation to its proof; a document was not proved merely because it had been marked for identification.

 

  1.  Once a document had been marked for identification, it was to be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation was laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document was not marked as an exhibit, it was not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.
  2. A document marked for identification only became part of the evidence on record when formally produced as an exhibit by a witness. In not objecting to the marking of a document for identification, a party could not be said to be accepting admissibility and proof of the contents of the document. Admissibility and proof of a document were to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification. Until a document marked for identification was formally produced, it was of very little, if any, evidential value.
  3. The failure or omission by the respondent to formally produce the documents marked for identification was fatal to the respondents’ case. The documents did not become exhibits before the trial court; they had simply been marked for identification and they had no evidential weight. The record showed that the trial court relied on the document that was marked for identification in its analysis of the evidence and determination of the dispute before the court. A document marked for identification was not part of the evidence that a trial court could use in making its decision.
  4.  The trial judge erred in evaluating the evidence on record and basing his decision on a document not formally produced as an exhibit. It was a fatal error on the part of the respondents not to call any witness to produce the documents marked for identification. The respondents did not tender any formal evidence to challenge the defamation claim lodged against them.
  5. The Court would have considered otherwise if there was additional evidence through the testimony of any expert witness; unlike in the present case where the respondents having opted not to call any witness, there was no evidence on record in support of the respondents’ defence.
  6.   Such evidence could only be doubted if there was some material evidence demonstrating difference and there were material differences in the typed proceedings of the court and the alleged handwritten photocopy of proceedings of the court. These differences needed a witness to explain the authenticity of the handwritten photocopy; this could only be done if the maker or any other competent witness produced the document marked for identification in evidence as an exhibit. Failure to produce amounted to non-reception and legal exclusion of the document.

 

 

Orders:

i.                    Appeal allowed with costs

ii.                  High Court Judgment set aside in entirety the judgment of dated 18th April, 2008

iii.                Appellant awarded the sum of Kshs.1, 500,000/= as general damages for defamation and no award for aggravated or exemplary damages.

iv.               Interest on the general damages to run with effect from 18th April, 2008 being the date of judgment of the trial court

 

Cases:

East Africa;

  1. Abdul Hameed Saif v Ali Mohamed Sholan (1955) 22 EACA 270 – (Mentioned)
  2. Biwott v Clays  Limited  &  5  others  [2001] KLR 597 – (Mentioned)
  3. Des Raj Sharma v Reginam (1953) 19 EACA 310 – (Explained)
  4.  Gicheru v Morton [2005] 2 KLR 332 – (Mentioned)
  5.  Karua, Martha v Standard Limited & another Civil Case No 295 of 2004 – (Mentioned)
  6. Machira v Mwangi [2001] KLR 532; (2001) 1 EA 110 – (Mentioned)
  7. Selle v Associated Motor Boat Co [1968] EA 123– (Mentioned)
  8. Timsales Limited v Harun Thuo Ndungu Civil Appeal No 102 of 2005 – (Followed)

Nigeria;

1. Michael Hausa v The State (1994) 7-8 SCNJ 144 – (Followed)

Statutes: None referred to

Advocates:

  1. Mr Chacha Odera for the Appellant
  2. Mr James Githaiya fro the Respondents

 

 

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Joseph Mutavi Mulavu V Republic [2015] eKLR

Case Number: Criminal Appeal 452 of 2010 Date Delivered: 16 Oct 2015

Judge: Paul Kihara Kariuki, Jamila Mohammed, Fatuma sichale

Court: Court of Appeal at Nairobi

Parties: Joseph Mutavi Mulavu v Republic

Citation: Joseph Mutavi Mulavu V Republic [2015] eKLR

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