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Republic V Simon Ekitela [2014] eKLR

Case Number: Criminal Case 28 of 2012 Date Delivered: 21 Jan 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Republic v Simon Ekitela

Citation: Republic V Simon Ekitela [2014] eKLR

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Jeremiah M Mwangangi V Republic [2014] eKLR

Case Number: Criminal Appeal 249 of 2011 Date Delivered: 21 Jan 2014

Judge: Beatrice Thuranira Jaden, Lucy Nyambura Gacheru

Court: High Court at Machakos

Parties: Jeremiah M Mwangangi v Republic

Citation: Jeremiah M Mwangangi V Republic [2014] eKLR

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Republic V Permanent Secretary Ministry Of Provincial Administration & Internal Security Ex-parte Lawrence Kamau P Mwangi [2014] eKLR

Case Number: Misc Application 311 of 2012 Date Delivered: 21 Jan 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Permanent Secretary Ministry of Provincial Administration & Internal Security Ex-parte Lawrence Kamau P Mwangi

Citation: Republic V Permanent Secretary Ministry Of Provincial Administration & Internal Security Ex-parte Lawrence Kamau P Mwangi [2014] eKLR

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Sidow Mohamed Ali V Republic [2014]eKLR

Case Number: Hccr Appeal 51 of 2013 Date Delivered: 21 Jan 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Sidow Mohamed Ali v Republic

Citation: Sidow Mohamed Ali V Republic [2014] eKLR

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Ekai Ekale V Republic [2014] eKLR

Case Number: Criminal Appeal 11 of 2013 Date Delivered: 21 Jan 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Ekai Ekale v Republic

Citation: Ekai Ekale V Republic [2014] eKLR

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Republic V Emuria Aropa Lokaale [2014] eKLR

Case Number: Criminal Case 36 of 2012 Date Delivered: 21 Jan 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Republic v Emuria Aropa Lokaale

Citation: Republic V Emuria Aropa Lokaale [2014] eKLR

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G.E V Republic [2014] eKLR

Case Number: Criminal Appeal 44 of 2011 Date Delivered: 21 Jan 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: G.E v Republic

Citation: G.E V Republic [2014] eKLR

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Stephen Odhiambo Owiso V Republic [2014] eKLR

Case Number: Criminal Appeal 82 of 2013 Date Delivered: 21 Jan 2014

Judge: Hilary Kiplagat Chemitei, Aggrey Otsyula Muchelule

Court: High Court at Kisumu

Parties: Stephen Odhiambo Owiso v Republic

Citation: Stephen Odhiambo Owiso V Republic [2014] eKLR

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Republic V Permanent Secretary Ministry Of Provincial Administration & Internal Security [2014] eKLR

Case Number: Misc Application 312 of 2012 Date Delivered: 21 Jan 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Permanent Secretary Ministry of Provincial Administration & Internal Security Exparte Lawrence Kamau P. Mwangi

Citation: Republic V Permanent Secretary Ministry Of Provincial Administration & Internal Security [2014] eKLR

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Captain J. N. Wafubwa V General Julius Karangi & 2 Others [2014] eKLR

Case Number: J.R. Misc. Civil Application 79 of 2013 Date Delivered: 21 Jan 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Captain J. N. Wafubwa v General Julius Karangi,Monica Juma The P/S Defence & Nancy Kirui, The Outgoing P/S Defence

Citation: Captain J. N. Wafubwa V General Julius Karangi & 2 Others [2014] eKLR

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Amalgamated Union Of Kenya Metal Workers V Parklands Motors Limited [2014] eKLR

Case Number: Cause 2292 of 2012 Date Delivered: 21 Jan 2014

Judge: Maureen Onyango Atieno

Court: Industrial Court at Nairobi

Parties: Amalgamated Union of Kenya Metal Workers v Parklands Motors Limited

Citation: Amalgamated Union Of Kenya Metal Workers V Parklands Motors Limited [2014] eKLR

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Mandare Nyongesa Wakhungu V Edward Otoro [2014] eKLR

Case Number: Civil Appeal 17 of 2000 Date Delivered: 20 Jan 2014

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: Mandare Nyongesa Wakhungu v Edward Otoro

Citation: Mandare Nyongesa Wakhungu V Edward Otoro [2014] eKLR

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James Ooko Elkana V Republic [2014] eKLR

Case Number: Criminal Appeal 24 of 2013 Date Delivered: 20 Jan 2014

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: James Ooko Elkana v Republic

Citation: James Ooko Elkana V Republic [2014] eKLR

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John Okuku Odwora & Another V Mlima Educational Trust & 2 Others [2014]eKLR

Case Number: Civil Suit 228 & 229 of 2005 (O.S) Date Delivered: 20 Jan 2014

Judge: George Kanyi Kimondo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Okuku Odwora, Wilfred Ritho Njeru, versus Samuel Gitiha Ngaruiya and James Mwangi Wainaina Sued as Trustees of Mlima Educational Trust, Amedo Madison Holdings Limited & Batian Limited,

Citation: John Okuku Odwora & Another V Mlima Educational Trust & 2 Others [2014] eKLR

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Charles Oduor Ombogo V Republic [2014] eKLR

Case Number: Criminal Appeal 1 of 2012 Date Delivered: 20 Jan 2014

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: Charles Oduor Ombogo v Republic

Citation: Charles Oduor Ombogo V Republic [2014] eKLR

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George Omondi Abudha V Republic [2014] eKLR

Case Number: Criminal Appeal 15 of 2013 Date Delivered: 20 Jan 2014

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: George Omondi Abudha v Republic

Citation: George Omondi Abudha V Republic [2014] eKLR

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Republic V National Social Security Fund Board Of Trustees & Another Ex Parte Town Council Of Kikuyu [2014] eKLR

Case Number: Judicial Review 81 of 2013 Date Delivered: 20 Jan 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Town Council Of Kikuyu v National Social Security Fund Board Of Trustees & Board Of Trustees Local Authorities Pension Trust Fund

Citation: Republic V National Social Security Fund Board Of Trustees & Another Ex Parte Town Council Of Kikuyu [2014] eKLR

Members of a Parallel Social Security Scheme which Sufficiently Caters For Their Social Security Interests Cannot Be Compelled to Contribute to the National Social Security Fund (NSSF)

 

Republic v National Social Security Fund Board of Trustees & another ex parte Town Council of Kikuyu [2014] eKLR

Judicial Review No 81 of 2013

High Court at Nairobi

G V Odunga, J.

January 20, 2014

Reported by Nelson K. Tunoi

Issues:

i)        Whether an application for judicial review orders where the applicant had filed a “supporting affidavit” instead of a “verifying affidavit” was incompetent and procedurally irregular in the circumstances?

ii)       Whether or not an affidavit used in support of the application for leave could be used to support the substantive judicial review application.

iii)      Whether the Town Council of Kikuyu (applicant) was obligated to contribute to NSSF yet it was a member of another statutorily recognized social security provider.

iv)   Whether the Board of Trustees Local Authorities Pension Trust Fund (2nd respondent) fell within the schemes to which Pensions Act applied as mandatorily required in the Second Schedule to the Pensions Act (cap 189)?

 

Judicial review-certiorari, mandamus and prohibition-application seeking judicial review orders against the respondent-whether an application for judicial review orders where the applicant had filed a “supporting affidavit” instead of a “verifying affidavit” was incompetent and procedurally irregular-whether or not an affidavit used in support of the application for leave could be used to support the substantive judicial review application-whether the applicant was obligated to contribute to NSSF where it was a member of another statutorily recognized social security provider-whether the application had merit-Civil Procedure Rules (cap 21 Sub Leg), Order 53; National Social Security Funds Act (cap 256), sections 2, 5, 7; Pensions Act (cap 189); National Social Security Fund (Registration) Order, Rules 2 & 3; Local Authorities Pensions Trust Rules, 2007, Rule 8

 

Brief Facts:

The Town Council of Kikuyu (applicant) sought judicial review orders of prohibition stopping the National Social Security Fund (1st respondent) from demanding contributions from the applicant in respect of its employees who were members and contributors of the Local Authorities Pension Trust Fund (2nd respondent); certiorari to quash the notices of demand issued by the 1st respondent; and order of mandamus to compel the 2nd respondent to seek a refund from the 1st respondent of all the monies contributed to it since 1963 when the Pension Act was enacted.

It was the applicant’s case that its employees were registered members of Local Authorities Pension Trust (LAPTRUST), a social security provider statutorily registered and that they should be exempted from remitting statutory contributions to the 1st respondent on the sole basis that its employees remitted their contributions to Local Authorities Provident Fund.

It was the 1st respondent’s case that it was not merely a pension scheme but the first pillar social security scheme that provided mandatory cover for all workers except the expressly exempted employers and it did not matter that an employee not exempt was contributing to other schemes.

 

Held:

1.      Although the filing of the “supporting affidavit” instead of “verifying affidavit” was an irregularity, this was the kind of irregularity that was contemplated by article 159(2)(d) of the Constitution. Therefore, in the circumstances of this case, it could not be said that the ex parte applicant’s case was not supported by any factual averments.

2.      Once leave to apply for judicial review was granted under Order 53 rule 1 of the Civil Procedure Rules, the applicant was expected to make the application by way of notice of motion within 21 days of the grant of leave. Under Order 53 rule 4(1) and (2), once leave to apply for judicial review was granted, the applicant was expected to only rely on the statement and the verifying affidavit filed in support of the application for leave which affidavit ought to contain all the evidence intended to be relied upon by the applicant. Therefore, unless leave of the Court was sought and granted no further affidavit was permissible in support of the substantive motion. [See: Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321 - Nyamu, J.]

3.      Under Order 53 rule 4(1) of the Civil Procedure Rules, 2010, the applicant was only entitled to the reliefs which were expressed in the statement. However, whereas the applicant was only entitled to be granted the reliefs indicated in the statement, there was nothing wrong in the applicant abandoning some of the reliefs expressed in the statement in his notice of motion.

4.      In judicial review applications, the applicant was always the Republic rather than the person aggrieved by the decision sought to be impugned. [See: Farmers Bus Service & Others vs. Transport Licensing Appeal Tribunal [1959] EA 779].

5.      Whereas the failure by a party to properly intitule the proceedings could lead to denial of costs in the event that the party in default succeeded in the application or even being penalised in costs, that blunder was not incurably defective and ought not on its own be the basis upon which an otherwise competent application was to be dismissed. With respect to the grounds relied upon, the requirement that the applicant set out the grounds upon which the application was to be based in the statement was meant to put the other parties on notice in order to enable them address the issues which the applicant intended to rely on. Where the grounds, though not clear enough were sufficient to bring the matter within the purview of judicial review and where there was no prejudice occasioned by the failure to plead the grounds with clarity, it would be stretching the requirement too far to disallow the application solely on that ground.

6.      A legal opinion by the Attorney General was like any opinion of an expert, and was entitled to the highest possible regard. However, the Court was not bound to accept and follow it as it should form its own independent opinion based on the entire evidence before it but like other expert evidence, the said opinion must not be rejected except on firm grounds. Such opinion evidence, like all opinion evidence would be considered by the Court and acted upon if the Court was satisfied that it could be but true on consideration of the surrounding circumstances. [See Juliet Karisa vs. Joseph Barawa & Another Civil Appeal No. 108 of 1988; Maina Kiama vs. Peter Kiama Mutahi Civil Application No. Nai. 25 of 2001; John Cancio De SA vs. V N Amin (1934) 7 EACA 13 at 15].

7.      It was clear that if the applicants were members of a scheme (statutory or non-statutory) approved by the Minister in writing for the purposes of providing comparable benefits, being persons in the public service, local government authority or any corporation or body established for public purposes, the members of the applicant who had subscribed to the 2nd respondent would be exempt from contributing to the Fund since section 7(3) of the NSSF Act under which a Gazette Notice was required only applied to situations where the Minister intended to add to, delete from or vary any class or description of exempt person in the Second Schedule. Where the Second Schedule had already provided that a certain class of persons were exempted, then it was not necessary for the already exempted persons be Gazetted.

8.      The 2nd respondent was one of the schemes contemplated under Second Schedule to the Pensions Act (cap 189) pursuant to the Legal Notice No. 313 of 1963 hence its members, unless they opted otherwise, were exempted from being contributors to the 1st respondent.

9.      It was not the intention of the Legislature in enacting section 7 of the NSSF Act that even those who had in place schemes which sufficiently catered for their social security interests would still be compelled to contribute to the 1st respondent. The purpose of the NSSF Act was to cater for the vulnerable members of the society as required under article 21(3) of the Constitution of Kenya, 2010.

10. To compel the very people for whom the NSSF Act was meant to protect and cushion to double contributions for substantially the same purpose would defeat the purpose for which the Act was enacted. What article 43 of the Constitution, 2010 required the State to do was to ensure that there were adequate pension scheme or facilities available for its citizens and the enactment of the Act was meant to achieve this purpose. As long as this was achieved in accordance with the law, then membership to the 1st respondent was not mandatory in all circumstances. There was in place a legal instrument which exempts the applicant from the provisions of the section 5 of the NSSF Act.

11. Apart from the legality of the Laptrust Scheme, the principle of legitimate expectation emanating from the long practice of not demanding contributions from the applicant’s members barred the 1st respondent from compelling the applicant’s members to contribute to the 1st applicant’s fund.

12. With respect to the order of mandamus sought, as a general rule, the law required a demand by the applicant for action and refusal as a prerequisite to the granting of such an order. Of course there would be exceptions to the general rule but it was upon the applicant to satisfy the court that in the circumstances of the case the exception applied. Thus, without evidence that a demand to that effect was made and without any material before court on the basis upon which it could invoke the exception, the remedy was not available to the applicant.

 

Application allowed; order of certiorari issued to quash the notices of demand issued by the 1st respondent, and prohibition orders against the 1st respondent from demanding payments from the applicants in respect of the applicant’s employees who are members and contributors of the 2nd respondent pensions fund; no order as to costs.

Cases:

East Africa;

  1. Commissioner General, Kenya Revenue Authority Through Republic v Silvano Anema Owaki T/A Marenga Filing Station Civil Appeal No 45 of 2000 – (Explained)
  2.  District Commissioner Kiambu, v R & others ex parte Ethan Njau [1960] EA 109 – (Mentioned)
  3. Farmers Bus Service & others v Transport Licensing Appeal Tribunal [1959] EA 779 – (Mentioned)
  4. John Cancio De SA v V N Amin (1934) 7 EACA 13 – (Mentioned)
  5. Karisa, Juliet v Joseph Barawa & another Civil Appeal No 108 of 1988 – (Mentioned)
  6. Keroche Industries Limited v Kenya Revenue Authority & 5 others [2007] KLR 240 – (Explained)
  7. Maina, Kiama v Peter Kiama Mutahi Civil Application No Nai 25 of 2001 – (Mentioned)
  8. Mohamed Ahmed v Republic [1957] EA 523 – (Explained)
  9. Republic ex parte the Minister For Finance & The Commissioner of Insurance as Licensing and Regulating Officers v Charles Lutta Kasamani T/A Kasamani & Co Advocate & another Civil Appeal (Application) No 281 of 2005 – (Explained)
  10. Republic v Commissioner of Lands Ex parte Lake Flowers Limited Miscellaneous Application No 1235 of 1998 – (Explained)
  11. Republic v Kenya National Examinations Council ex parte Gathenji & 3 others Civil Appeal No 266 of 1996 – (Explained)
  12. Republic v Land Disputes Tribunal Court Central Division & another ex parte Nzioka [2006] 1 EA 321 – (Mentioned)
  13. Republic v Public Procurement Administrative Review Board & another ex parte Selex Sistemi Integrati [2008] KLR 728 – (Explained)

United Kingdom;

  1. R v Wandsworth London Borough Council exparte Beckwith [1996] 1 All ER 129 – (Explained)
  2. R v Brecknock and Abergavenny Canal Co (1835) 111 ER 395 – (Mentioned)
  3. R v The Bristol and Exeter Railway Co (1886) 114 ER 859 – (Mentioned)

 Statutes:

East Africa;

  1. Civil Procedure Rules Rule, 2010 (cap 21 Sub Leg) order 53 rules 1(2); 4(2) – (Interpreted)
  2. Constitution of Kenya, 2010 articles 21(3); 43(1)(e); 50(2)(n); 157(6)(9)(12); 159(2)(d) – (Interpreted)
  3. Constitution of Kenya, 2010 section 31(5) Sixth Schedule– (Interpreted)
  4. Interpretation and General provisions Act (cap 2) section 31(b) – (Interpreted)
  5. Local Authorities Pensions Trust Rules, 2007 rule 8– (Interpreted)
  6. Local Government (Pension) Regulations, 1963 regulation 8 – (Interpreted)
  7. National Social Security Fund (Registration) Order (cap 256 Sub Leg) rules 2, 3 – (Interpreted)
  8. National Social Security Funds Act (cap 256) sections 2, 5, 7(1)(a)(b)(3); 36; 37(b) – (Interpreted)
  9. Pensions Act (cap 189) sections 2, 4, 5(1); 8(1)(g) – (Interpreted)

Texts & Journals;

  1. Jacob. IH., (Ed) (1976) The Supreme Court Practice: Butterworth’s & Co London Vol 1 para 53/1/7

International Instruments & Conventions

  1. Municipalities Corporations Ordinance, 1928

 

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Patremmy Mwalima Mwakweka V Republic [2014]eKLR

Case Number: Criminal Appeal 257 of 2012 Date Delivered: 20 Jan 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Patremmy Mwalima Mwakweka v Republic

Citation: Patremmy Mwalima Mwakweka V Republic [2014] eKLR

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S K O V Republic [2014] eKLR

Case Number: Criminal Appeal 139 of 2012 Date Delivered: 20 Jan 2014

Judge: Francis Gikonyo

Court: High Court at Bungoma

Parties: S K O v Republic

Citation: S K O V Republic [2014] eKLR

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Godfrey Wekesa Murunga V Republic [2014] eKLR

Case Number: Criminal Appeal 160 of 2012 Date Delivered: 20 Jan 2014

Judge: Francis Gikonyo

Court: High Court at Bungoma

Parties: Godfrey Wekesa Murunga v Republic

Citation: Godfrey Wekesa Murunga V Republic [2014] eKLR

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Joseph Wanyonyi Wafukho V Republic [2014] eKLR

Case Number: Criminal Appeal 200 of 2012 Date Delivered: 20 Jan 2014

Judge: Francis Gikonyo

Court: High Court at Bungoma

Parties: Joseph Wanyonyi Wafukho v Republic

Citation: Joseph Wanyonyi Wafukho V Republic [2014] eKLR

Elements of the offence of obtaining money through false pretence

Joseph Wanyonyi Wafukho v Republic

Criminal Appeal No 200 Of 2012

High Court of Kenya at Bungoma

F. Gikonyo J.

January 20, 2014

Reported by Njeri Githang’a Kamau

Case History

(Appeal arising from the original conviction and sentence by M.A. NANZUSHI, RM in KIMILILI PMCCRC NO 21 OF 2011 on 31.10.2012)

Brief Facts

The Appellant made a representation of fact in writing to the complainant through an agreement for sale of 1 acre of land. He received a sum of Kshs. 252,000 leaving a balance of Kshs. 18,000 which was to be paid by the complainant upon transfer of the land. The suit land was surveyed and a boundary demarcated but the complainant was not able to enter the suit land because he was prevented from doing so by the relatives of the Appellant. The Appellant did not also deliver vacant possession of the land to the complainant because he had not obtained the consent of the relevant Land Control Board (LCB). The Appellant was consequently charged with the offence of obtaining money through false pretence contrary to section 313 of the Penal Code. He was tried for the offence, convicted and sentenced to pay a fine of Kshs. 50,000 or in default to serve 12 months imprisonment hence the appeal.

 

Issues

        I.            What were the elements of the offence of obtaining money through false pretence?

      II.            Did the facts of the case support a charge of obtaining money through false pretence?

    III.            Whether the charge of obtaining money through false pretence was proved beyond any reasonable doubt.

  IV.            Whether the judgment of the trial court conformed to section 169 of the CPC.

 

Criminal Law- Obtaining through false pretence-elements of the offence-definition of false pretence-where the appellant had entered into a sale agreement for sale of land with the complainant-however the appellant failed to deliver vacant possession of the land to the complainant because the appellant’s relatives did not approve of the sale- whether the charge of obtaining money through false pretence was proved beyond any reasonable doubt-Penal Code, section 313, 312-Land Control Act sections 6,7,22

 

Penal code

section 313  Obtaining through false pretences

 Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.

 

Section 312  Definition of false pretence

 Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence.

 

Land Control Act, Cap 302 of the Laws of Kenya section 6

6     An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto:

 Provided that the High Court may, notwithstanding that the period of six months may have expired, extend that period where it considers that there is sufficient reason so to do, upon such conditions, if any, as it may think fit.

Section 7 provides for the remedy as follows:

 7      If any money or other valuable consideration has been paid in the course of a controlled transaction that becomes void under this Act, that money or consideration shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to section 22.

           Section 22 provides for penalties as follows:

 22     Where a controlled transaction, or an agreement to be a party to a controlled transaction, is avoided by section 6 of this Act, and any person—

                 (a) pays or receives any money; or

                 (b) enters into or remains in possession of any land,

 in such circumstances as to give rise to a reasonable presumption that the person pays or receives the money or enters into or remains in possession in furtherance of the avoided transaction or agreement or of the intentions of the parties to the avoided transaction or agreement, that person shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment.

 

Held,

1.      The essential elements of the offence of obtaining through false pretences were: that the person;

 a)      Obtained something capable of being stolen;

 b)      Obtained it through a false pretence; and

 b)      With the intention to defraud.

2.      The Appellant received a sum of Kshs. 252,000 from the complainant, which was something capable of being stolen under the law. However, it’s not the taking of money that constitutes the offence, but rather that it was taken with the intention to defraud. The fraud was found in the false pretence

3.      Definition of false pretence was that; there must be:

 a)     A representation of fact by word, writing or conduct;

 b)     The representation is either past or present;

 c)     The representation must be false; and

 d)     The person made the representation knowing it to be false or did not believe it to be true.

4.      The offence of obtaining does not relate to future events. The representation should be of either a past or present fact, not future fact.

5.      A statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law. Devlin, J. R v DENT 1955 2 Q.B. pp 594/5

6.      The Appellant was the registered proprietor of the suit land and had proprietary interest in the suit land. The only problem was that family members did not support or approve of the sale. There was nothing false or untrue about the agreement for sale of the land or the land itself. Therefore, it could not be said in the circumstances of the case, that the Appellant made a false representation of fact about the land.

7.      The sale was a controlled transaction covered by section 6 of the Land Control Act, Cap 302 and as a matter of law, it needed consent from the relevant Land Control Board (LCB) in order to complete and validate the sale of the suit land. Under section 8 of the said Act, the Appellant ought to have applied for consent from LCB within six months of the making of the agreement for sale or within such period of time as shall have been extended by the High court.

8.      The grant or refusal to grant consent to a controlled transaction was a preserve of the LCB, and was dependent upon certain conditions being met by the transaction and the applicant. Grant of consent was not automatic or under the control of the applicant. Therefore, the fact that consent from LCB was not applied for or obtained did not in itself convert the representation to sell land into a false pretence for purposes of section 313 of the Penal Code.

9.      Under section 6 of Cap 302 of the Laws of Kenya, where consent was not obtained within the prescribed period, the controlled transaction became void. As a consequence thereof, the law provides the remedy for the purchaser under section 7 of the said Act and penalties for furtherance of voided transactions.

10. The legal framework which governed the transaction in controversy; made the transaction a purely civil action, thus removing it from the realm of criminal law except where section 22 of Cap 302 had been called into play; and provided for a complete mechanism for and the relief in the event the transaction became void.

11. Section 7 should be read together with the conditions of sale in the agreement, especially the clause dealing with default, which offered relief to the complainant’s gravamen. Guided by the relevant law attending the case, the transaction did not constitute a false pretence or intention to defraud for purposes of the offence of obtaining through false pretences under section 313 of the Penal Code and further, the charge before the trial court was not a charge under section 22 of Cap 302.

12. Criminal process was never a substitute for criminal remedy or to be used as a means to settle a civil claim or to avail a party in a commercial transaction undue or collateral advantage over the other. That kind of practice was fraudulent, demented and abuse of the court process; should always be avoided by parties, resisted and forcefully suppressed by courts of law whenever it manifested itself before court.

13. The judgment by the trial court fell short of compliance with Section 169 of the Criminal Procedure Code.  It did not, inter alia, contain the point(s) for determination; the evaluation of the defence; the decision arrived at; and reasons for that decision. 

 

Appeal allowed, conviction quashed and the sentence set aside.

 

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Peter Wafula Juma & 2 Others V Republic [2014] eKLR

Case Number: Criminal Appeal 144,145 & 146 of 2011 (Consolidated) Date Delivered: 20 Jan 2014

Judge: Francis Gikonyo

Court: High Court at Bungoma

Parties: Peter Wafula Juma,Samwel Juma Nyongesa & Peninah Nasimiyu Wafula v Republic others v Republic

Citation: Peter Wafula Juma & 2 Others V Republic [2014] eKLR

REPUBLIC OF KENYA

IN THE HIGH CCOURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL NO 144 OF 2011

(Consolidation of BGM HCCRA NO 144/2011, 145 OF 2011 & 146 OF 2011)

(CORAM: F. GIKONYO J)

PETER WAFULA JUMA......................................1ST APPELLANT

SAMWEL JUMA NYONGESA.........................2ND APPELLANT

PENINAH NASIMIYU WAFULA.....................3RD APPELLANT

Versus

REPUBLIC...............................................................RESPONDENT

(Appeal arising from the original conviction and sentence by D. WANGECHI, DM II (Prof) in BGM CMCCRC NO437 OF 2011 made on 16.8.2011)

JUDGMENT

Consolidation

[1]     PETER WAFULA JUMA, SAMWEL JUMA NYONGESA and PENINAH NASIMIYU WAFULA had initially filed separate appeals, to wit; BGM HCCRA NO 144 OF 2011, BGM HCCRA NO 145 OF 2011 and BGM HCCRA NO 146 OF 2011 respectively. On 11.11.2013, these appeals were consolidated and file number BGM HCCRA NO 144 OF 2011 was made the controlling file. In that consolidation, PETER WAFULA JUMA, SAMWEL JUMA NYONGESA and PENINAH NASIMIYU WAFULA assumed 1st, 2nd and 3rd Appellants, respectively. In this judgment, except where it is necessary or the context requires reference to the particular Appellants, I shall refer to them as the Appellants.

The charge

[2]     The Appellants jointly faced a charge of assault causing actual bodily harm contrary to section 251 of the Penal Code. Particulars of the offence were that; on the 18th day of October, 2009 at Ndakaru village, Namwacha sub-location, East Bukusu location in Bungoma South District within Western province, the Appellants jointly unlawfully assaulted MARTIN WANAMBISI BARASA thereby occasioning him actual bodily harm. They were tried for the offence, convicted and sentenced each to pay a fine of Kshs. 2,000, and in default to serve six (6) months imprisonment.

The appeal

[3]     The Appellants were aggrieved by the conviction and sentence, and filed separate appeals through M/S J.S. KHAKULA & COMPANY ADVOCATES. But all of them proffered similar grounds of appeal reproduced below.

a)     The learned trial magistrate was openly prejudiced against the Appellants and that prejudice has resulted injustice;

b)     The learned trial magistrate erred in law in convicting the Appellants on the unsatisfactory and contradictory testimonies of prosecution witnesses; and

c)     The learned trial magistrate erred in law by shifting the burden of proof from the prosecution to the accused.

[4]     Mr D.M. Wanyama, the learned counsel for the Appellants submitted that the evidence of the prosecution was characterized by contradictions; the complainant at one point talked of having been admitted in hospital for one day while at another for three days; the dates of recording statements also differ; the complainant said his leg was fractured while the doctor said there was no fracture; and dates for the filling of the P3 Form also differ. For these reasons, the Appellants feel they should receive justice through this appeal.

The state opposed the appeal

[5]     Mr Kibelion, the learned state counsel opposed the appeal. He submitted that the Appellants were properly charged with and convicted for assault. The Appellants assaulted the complainant on 8.10.2009 at 6.00pm and he saw them well. He knew them all. He gave an account as to how they attacked him with sticks thus injuring him. He was treated for the injuries. PW2 and PW3 rushed to the scene after they heard PW1 screaming. PW2 and PW3 saw the Appellants beating PW1 and they identified them. They fled when they saw PW2 and PW3. PW2 and PW3 assisted in taking PW1 to hospital. The assault took place in broad day light-the light was sufficient to identify a person. In the circumstances, the conviction was safe and the sentence was really lenient.

COURT’S ANALYSIS

Duty of the court

[6]     The court is under a duty to evaluate evidence recorded by the trial court and come to own findings and conclusions, except, however, I should make an allowance for the fact that I neither saw nor heard the witnesses. See OKENO v REPUBLIC [1973] EA 32 where it was held:

An Appellants on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination [Pandya vs. Republic (1957) EA 336] and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala v. Republic [1957] EA 570.) It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424.)”

[7]     With the exception of ground (b), the other two grounds basically raise issues which I think I should determine straight away. I propose to deal with ground (a) and (c) first and in that order, and then ground (b).   

Alleged open prejudice by trial magistrate

[8]     A claim of bias or prejudice by the trial magistrate against a judicial officer is a grave juridical issue as it imputes a serious charge on the conduct of the officer. The Appellants have raised it as ground 1 and posit that the prejudice resulted into injustice to the Appellants. Such ground should be raised where evidence is readily available on record, for it requires strict and specific proof. The court had occasion to consider impleading of bias in an appeal in the case of HIGH COURT OF KENYA AT MERU CRIMINAL APPEAL NO 238 OF 2010 (MAKAU & GIKONYO JJ) and stated as follows:

We have perused the judgment and the entire record of the trial court; we have not found anything which suggests bias on the part of the trial magistrate. Bias in its legal connotation entails prejudice on the part of the trial magistrate that he decided the case on extraneous factors rather than the law. Black’s Law Dictionary, 7th Edition clearly sets out that Bias entails:-Inclination, prejudice; Judge’s bias usually must be personal or based on some extrajudicial reasons. And further it states that Prejudice entails:-A preconceived judgment formed without a factual basis, a strong bias. No wonder the law requires that the facts constituting bias must be specifically alleged and established. It is a kind of allegation which requires the counsel making it to first establish presence of bias that can be proved, and then make a conscientious decision to raise the matter only where proof is readily available. The law is tailored that way, in recognition of the fact that an allegation of bias imputes a serious charge on the integrity of the trial court and the propriety of the proceeding. The word bias assumes a particular legal meaning in any judicial proceeding and it should not, therefore, be used just loosely. It is most desirable that care should be taken before making a submission such as the one made herein. We say no more on that issue. The ground fails.

[9]     In line with the above observation, I too do not find anything which would suggest an open prejudice by the trial magistrate against the Appellants. It is desirable that, when a judicial officer exhibit open bias or prejudice against a party in a proceeding, as is being claimed in this appeal, the Appellants should make an application in the original proceedings for the trial magistrate to recuse herself, rather than wait for the same trial court to complete the trial only to raise it during the appeal. Except where the record is so soiled in a manner that prejudice could easily be discernible, I do not think a ground of appeal based on alleged bias or prejudice would be an easy one for the appellate court to determine as it would be by the trial court. I say these things because this court is a court of record. Ground 1 fails and is rejected.

Shifting burden of proof

[10]   The Appellants placed as a ground of appeal; that the trial magistrate shifted the burden of proof to the Appellants. Before I determine whether

the trial magistrate shifted the burden of proof to the Appellants, let me engage a little useful discourse. The subject of shifting the burden of proof is quite elusive as it is important especially in criminal cases. In other jurisdictions, shifting of the burden of proof is referred to as ‘reverse burden’- a term I do not like using for it blurs the subject completely; shifting the burden of proof is much simpler, easy to understand and expressly represents the subject. Nonetheless, the subject on shifting the burden of proof becomes more complicated when one realizes that the expression ‘’Burden of proof’’ entails; ‘legal burden of proof’ and ‘evidential burden’. The two should not be confused, and I will write something to elucidate on what each entails later.  Of instant benefit to this appeal is that, after a long raging debate, dating back to the late part of 1700, on whether or not legal burden of proof could shift under any circumstances, it is now a well settled principle of law that, the legal burden of proof in criminal matters never leaves the prosecution’s backyard. Viscount Sankey L.C in the case of H.L. (E)* WOOLMINGTON V DPP [1935] A.C 462 pp 481 in a subtle and masterly fashion stated the law on legal burden of proof in criminal matters, that;

‘’Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’

[11]    Kenya adopted common law tradition and the position on legal burden of proof in criminal cases is as stated by Viscount Sankey L.C (ibid); the prosecution bears the legal burden of proof throughout the trial. In Kenya, a statutory provision which shifts the legal burden of proof in criminal cases is unconstitutional except is so far as it creates only evidential burden, relates to acceptable exceptions such as the defence of insanity, or other rebuttable presumptions of law. This law is consistent with and upholds the constitutional right of the accused; presumption of innocence, not to give incriminating evidence and to remain silent.  Did the trial magistrate shift the legal burden of proof to the Appellants?

[12]    I have perused the entire proceedings and I do not find anything which suggests that the trial magistrate shifted the legal burden of proof to the Appellants. The trial magistrate evaluated all evidence including that of the defence and came to the correct conclusion. I can just suppose that perhaps the Appellants mistook some statements by the trial magistrate to mean shifting of the legal burden on the Appellants, such as:

‘’In my view, the injuries are consistent with assault using sticks. There is no doubt or contrary evidence adduced’’.

          Or;

‘’The 1st accused did not offer any defence as he elected to remain silent’’.

[13]    But those statements do not amount to shifting of the legal burden. They were made within the context of the entire judgment, and when they are so read, they are perfectly consistent with the law. I, therefore, find and hold that the trial magistrate was alive of the law on legal burden of proof in criminal cases and she did not at any time or at all shift it to the Appellants. Her finding was that the prosecution discharged its burden of proof and had proved the case beyond any reasonable doubt. That ground fails.  

[14]   As I exit this ground of appeal, let me fulfil the promise I made; a précis on the difference between legal burden of proof and evidential burden.

Burden of proof: Legal burden of proof and evidential burden

[15]    As I have already stated, the expression ‘’burden of proof’’ entails two distinct concepts; ‘’legal burden of proof’’ and ‘’evidential burden’’. The two are different, and understanding the distinct application of each is essential. It is also important to understand the position of the law on burden of proof in criminal cases and civil cases; there is a marked difference especially on the legal burden of proof. We shall deduce that difference in the application of the legal burden from the sources I am going to quote below.

Legal burden of proof; does it shift?

[16]   According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:

13.     The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.

14.    The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.

[17]   It is clear that the legal burden of proof in criminal cases is only one, and rests upon the shoulders of the prosecution; it remains constant throughout the trial and does not shift. Remember what I said earlier on this and the words of Viscount Sankey L.C (supra). Over the years, any discussion or attempt to deviate from the norm, or put in other words, to provide for the shifting of the legal burden of proof to the accused, has generated extreme jurisprudential controversy and caused problems of interpretation of statutes authorizing the shift in systems which uphold the principle of the Rule of Law and Human Rights. In many jurisdictions, Kenya included, such statutory provisions allowing the shifting of legal burden of proof in criminal cases have been declared by the courts to be unconstitutional for being inconsistent with the constitutional right to presumption of innocence and to remain silent, or have been deliberately read-down that they impose no more than evidential burden on the accused in order to make them compatible with the Constitution. The latter step of ‘reading down’ of a statutory provision is often taken in reliance on a Constitution that requires legislation to be construed in a manner that is consistent with it as is the case with the Constitution of Kenya, 2010. The policy considerations of this approach is; 1) to respect the will of the legislature; 2) to preserve the integrity of our statute law so far this is possible; and 3) to uphold the principles of justice enshrined in the Constitution. It is worth of note that, one might say that normally, creation of evidential burden on a party, or a shifting of an evidential burden only is unlikely to be held unconstitutional, but what really matters is the court testing the constitutionality of the shift; the decisive character and effect of the evidential burden so created on the rights of the accused. See R v LAMBERT [2002] 1 All ER 2; R v OAKES [1986] 1 S.C.R. 103; TSE MUI CHUN v HKSAR (2003); and S v COETZEE AND OTHERS [1997] ZACC 2 which analysed a great many other decided cases on the subject.  

[18]   Does the legal burden shift? In criminal case, it does not. But in civil cases, there could be separate legal burden of proof and lying on different parties in a case with more than one issue; for instance; in a case founded on negligence, legal burden of proof of breach of duty and damages lies upon the plaintiff; while proof of contributory negligence lies on the defendant. It will also shift to the party who must make substantiation of a particular allegation or fact.

Evidential burden: does it shift?

[19]   Evidential burden initially rests on the party with the legal burden, but as the weight of evidence given by either party during the trial varies, so also will the evidential burden shift to the party who would fail without further evidence. On this, see Halsbury’s Laws of England para 15. Evidential burden is the basis for the practice in criminal law where the trial court makes a ruling as to whether the prosecution has adduced prima facie evidence as to warrant the accused person to be placed on his defence. See section 211 of the Criminal Procedure Rules. Even in civil cases, when prima facie evidence is adduced by the plaintiff, evidential burden is created on the shoulders of the defendant who must be called upon to prove the contrary. In both cases, where evidential burden has been properly created in law, the accused and the defendant are entitled to call for evidence in rebuttal, and where the evidential burden is not discharged, judgment may be entered against the defendant- in case of a civil case- or a conviction against the accused- in case of a criminal case. Except, it must be understood that, judgment or conviction will not be entered because the defendant or the accused did not call for evidence in rebuttal; but because the plaintiff or the prosecution, as the case may be, has proved its case to the required standard. Needless to state that, the standard in civil cases is on a balance of probabilities and in criminal cases is beyond any reasonable doubt. The trial court will therefore, have to evaluate the entire evidence after the defendant or the accused has not offered any evidence to determine whether the case has been proved to the standard before entering such judgment or conviction on the evidence. The right to presumption of innocence or to remain silence in criminal cases is, therefore, not infringed. By this small treatise, I have justified the position I have adopted in my decision on ground (c) of the appeal, which also casts indents in the resolution of any issue around the question of burden of proof whenever it arises.

Whether evidence was unsatisfactory and contradictory

[20]   The Appellants impleaded that: The learned trial magistrate erred in law in convicting the Appellants on the unsatisfactory and contradictory testimonies of prosecution witnesses. The advocate for the Appellants submitted that there were material contradictions on the date or recording the statement, the period the complainant was admitted in hospital and when the P3 Form was filled. PW1 had initially stated that he recorded his statement on 9.10.2009 but when he was shown the actual statement he recorded, he corrected the earlier mistake and confirmed that he recorded the statement on 28.09.2009. On admission in hospital, he simply said he was admitted in hospital and he did not state the period of the admission. I have perused the record and there is nowhere PW1 told the trial court that he was admitted in hospital for a particular period of time. I think the source of confusion is that counsel for the Appellants referred to the evidence which had been recorded by the predecessor to the succeeding trial magistrate; but as the case started de novo, that evidence is of no use. The other supposed contradiction; that PW1 said he suffered a fracture whereas the doctor said there was no fracture. I do not think PW1 is an expert in medical field to give an expert opinion on the exact nature of his injuries. PW1 could only give a general description of the injuries he suffered. The doctor’s work is to give expert medical evidence about the exact nature of the injuries PW1 suffered. And that is why he was called as a witness. The doctor confirmed there was no fracture and that clarification resolves any supposed contradiction in the evidence of PW1. I do not see any material contradiction which would benefit the Appellants in this case.

[21]    PW1 gave a coherent account as to how the Appellants jointly assaulted him with sticks injuring him. The doctor confirmed that PW1 sustained injuries and medical evidence in form of a P3 Form was produced in court. The assault was unlawful. PW2 and PW3 saw the Appellants assaulting PW1 with sticks; they then ran away when they saw PW2 and PW3 approaching the scene. PW1, PW2 and PW3 knew the Appellants well and saw them in the act. It was 6.00pm in a broad day light and it was not difficult to identify the Appellants as the people who assaulted PW1. The evidence before the trial magistrate was water-tight and overwhelming; it proved the charge of assault beyond any reasonable doubt. The sentence meted out was most lenient. I, therefore, uphold the conviction and sentence by the trial magistrate. The appeal is dismissed.

Dated and signed at Nairobi this 20th day of January, 2014

 

F. GIKONYO

JUDGE

Dated, signed and delivered at Bungoma this 20th day of January, 2014

 

                A MABEYA

               JUDGE

 

 

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East Africa Pentecostal Churches Registered V Charles Nakali Emejen & 8 Others [2014] eKLR

Case Number: Civil Case 49 of 2012 Date Delivered: 20 Jan 2014

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: East Africa Pentecostal Churches Registered v Charles Nakali Emejen & 8 Others

Citation: East Africa Pentecostal Churches Registered V Charles Nakali Emejen & 8 Others [2014] eKLR

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Isaack Njiru Muriithi V Republic [2014]eKLR

Case Number: Criminal Appeal154 of 2012 Date Delivered: 20 Jan 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Kerugoya

Parties: Isaack Njiru Muriithi v Republic

Citation: Isaack Njiru Muriithi V Republic [2014] eKLR

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Vincent Ochieng Aringo V Republic [2014] eKLR

Case Number: Criminal Appeal 40 of 2013 Date Delivered: 20 Jan 2014

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: Vincent Ochieng Aringo v Republic

Citation: Vincent Ochieng Aringo V Republic [2014] eKLR

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Charles Enose Makokha V Republic [2014] eKLR

Case Number: Criminal Appeal 84 of 2012 Date Delivered: 20 Jan 2014

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: Charles Enose Makokha v Republic

Citation: Charles Enose Makokha V Republic [2014] eKLR

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George Owino Opiyo V Republic [2014] eKLR

Case Number: Criminal Appeal 9 of 2012 Date Delivered: 20 Jan 2014

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: George Owino Opiyo v Republic

Citation: George Owino Opiyo V Republic [2014] eKLR

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Boniface Mwangi Kinae V Republic [2014] eKLR

Case Number: Criminal Appeal 176 of 2011 Date Delivered: 17 Jan 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Boniface Mwangi Kinae v Republic

Citation: Boniface Mwangi Kinae V Republic [2014] eKLR

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Samuel Ndirangu Muchiri & Another V Republic [2014] eKLR

Case Number: Criminal Appeal 215 & 216 of 2012 Date Delivered: 17 Jan 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Kerugoya

Parties: Samuel Ndirangu Muchiri & Joseph Maina Kirika v Republic

Citation: Samuel Ndirangu Muchiri & Another V Republic [2014] eKLR

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James Humhrey Oswago V Ethics And Anti-Corruption Commission [2014] eKLR

Case Number: Petition 409 of 2013 Date Delivered: 17 Jan 2014

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: James Humhrey Oswago v Ethics and Anti-Corruption Commission

Citation: James Humhrey Oswago V Ethics And Anti-Corruption Commission [2014] eKLR

James HumhreyOswago v Ethics and Anti-Corruption Commission

Petition No 409 of 2013

High Court at Nairobi

MumbiNgugi, J

January 17, 2014

Reported by Phoebe Ida Ayaya

Brief facts:

The petitioner who was the Chief Executive Officer (CEO) of the Independent Electoral and Boundaries Commission (IEBC) was on several occasions summoned by the Ethics and Anti-Corruption Commission to its offices where he gave information in his capacity as CEO of IEBC on issues touching on the tendering and procurement process of the Election Voter Identification Device (EVID) kits used in the 4th March 2013 general elections. The said summons were not issued to him in his personal capacity but as the CEO of IEBC. The commission was investigating alleged malpractices in the procurement of the EVID kits used in the said election. The commission then applied and was granted orders to search the petitioner’s premises. Pursuant to the grant of these orders, the respondent proceeded to search the petitioner’s homes in Loresho and Fedha Estate in Nairobi and his rural home in Kisumu, and took away therefrom various documents and electronic equipment.

Issues:

  1. Whether the Ethics and Anti-Corruption Commission could invoke the provisions of section 118 of the Criminal Procedure Code to obtain search warrants against the petitioner.
  2. Whether in making an application for a search warrant, the Ethics and Anti-Corruption Commission had to give advance notice to the person against whom the order was sought.
  3. Whether the petitioner was entitled to be heard before an order authorising search and seizure could be made.

 

Criminal Practice and Procedure– warrant – issuance of search warrants – procedure for issuance of search warrants – where the application for a search warrant was in investigation of an investigation under the provisions of the Anti-Corruption and Economic Crimes Act (ACECA) – where the applicant was to abide by the procedure provided for under the Anti-Corruption and Economic crimes Act – where the application was done in regard to the provisions of the Criminal Procedure Code – whether the Ethics and Anti-corruption Commission could invoke the provisions of the Criminal Procedure Code to obtain search warrants – ACECA sections 23 & 29, Criminal Procedure Code section 118.

Criminal Practice and Procedure– warrant – issuance of search warrants – procedure for issuance of search warrants – where the application for a search warrant was done ex-parte – where the party against whom the warrant was issued averred that he ought to have been given notice of the application – where the party against whom the warrant was made averred that he ought to have been heard before the warrant was issued – whether an application for issuance of a search warrant ought to have been made inter parte – whether the party against whom a search warrant was made was entitled to be heard before the order was be made – ACECA sections 23 & 29, Criminal Procedure Code section 118.

 

Anti-Corruption and Economic Crimes Act (ACECA)

Section 23(1) “The Director or a person authorized by the director may conduct an investigation on behalf of the Commission.”

(2) “Except as otherwise provided by this part, the powers conferred on the Commission by this part may be exercised, for the purposes of an investigation, by the director or an investigator.”

(3) “For the purposes of an investigation, the director and an investigator shall have the powers, privileges and immunities of a police officer in addition to any other powers the director or investigator has under this part.”

(4) “The provisions of the Criminal Procedure Code (Cap 75), the Evidence Act (Cap 80), the Police Act (Cap 84) and any other law conferring on the  police the  powers, privileges and immunities necessary for the detection, prevention and investigation of offences  relating  to corruption and economic crime shall, so far as they are not inconsistent with the provisions of this Act or any other law, apply to the Director and an investigator as if reference in those provisions to a police officer included  reference to the Director or an investigator.”

Section 29(1)“The Commission may, with a warrant, enter upon and search any premises for any record, property or other thing reasonably suspected to be in or on the premises and that has not been produced by a person pursuant to a requirement under the foregoing provisions of this Part.”

(2) “The power conferred by this section is in addition to, and does not limit or restrict, a power conferred by section 23(3) or by any other provision of this part.”

Criminal Procedure Code

Section 118“Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.”

 

Held:

  1. A reading of section 29 of the ACECA showed that it did not provide a process for obtaining the search warrant contemplated. It only permitted the Commission to enter premises ‘with a warrant’ without providing how such warrant was to be obtained. However, when read with section 23(4) of the Act, it was clear that the warrant required was to be obtained as provided under section 118 of the Criminal Procedure Code.
  2. The commission properly exercised its powers under the provisions of the ACECA in obtaining warrants to search the petitioner’s premises by invoking the procedure provided under section 118 of the Criminal Procedure Code.
  3. The purpose of obtaining search warrants was two-fold. With regard to the protection of the rights of citizens, it was to ensure that any entry into a citizen’s premises or property was done in accordance with, and with the sanction and authority of the law. With regard to the public interest, the administration of justice and the apprehension of offenders, the section was intended to ensure that investigating authorities could gain access to incriminating information or evidence without the suspected offender getting an opportunity to conceal or destroy such evidence.
  4. That being the case, it would defeat the purposes and intention behind searching premises as contemplated under section 118 of the Criminal Procedure Code if an application for a search warrant were to be made inter parte, with notice, and for the person in respect of whose property or premises the search warrants were directed to be heard before such warrants were issued.

Petition dismissed.

Cases

East Africa

1.Cargo Distributions Ltd v Director of Criminal Investigations [2006] 1 KLR 245–(Approved)

2.Kenya Bus Services v Attorney General Miscellaneous Civil Suit No 413 of 2008 – (Explained)

3.Nairobi Law Monthly Company Ltd v Kenya Electricity Generating Company & 6 others Petition No 278 of 2011 –(Followed)

4.Ruiyi, David Njane & another v Republic Revision Case No 352 of 2009 –(Explained)

United Kingdom

1.Harrikisoon v Attorney General of Trinidad & Tabago [1980] AC 265 –(Mentioned)

Statutes

East Africa

1.Anti-Corruption and Economic Crimes Act, 2003 sections 12, 23(4); 27; 28; 29; 48; 50(2)(b) –(Interpreted)

2.Constitution of Kenya, 2010 articles 23(3)(f); 24(1); 25; 31; 35(1)(b); 40; 48; 50(2)(b)(j)(K); 79; 249–(Interpreted)

3.Criminal Procedure Code (cap 75) sections 118, 121(1); 382–(Interpreted)

4.Evidence Act (cap 80) –In general –(Interpreted)

5.National Police Service Act, 2011 (Act No 11A of 2011) section 52–(Interpreted)

6.Police Act (Repealed) (cap 84) –In general–(Interpreted)

Advocates

1.Mr Jotham Arwa for the Petitioner

2.Mr Waudo for the Respondent

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Daniel Munyambu V Director Of Public Prosecutions & Others [2014] eKLR

Case Number: Petition 407 of 2013 Date Delivered: 17 Jan 2014

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Daniel Munyambu v Director of Public Prosecutions & others

Citation: Daniel Munyambu V Director Of Public Prosecutions & Others [2014] eKLR

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Julius Waweru Muchiga V Republic [2013] eKLR

Case Number: Criminal Appeal 164 of 2012 Date Delivered: 17 Jan 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Kerugoya

Parties: Julius Waweru Muchiga v Republic

Citation: Julius Waweru Muchiga V Republic [2013] eKLR

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Paul Tono Pymto & Another V Giles Tarpin Lyonnet [2014] eKLR

Case Number: Succession Cause 57 of 2010 Date Delivered: 17 Jan 2014

Judge: Fred Andago Ochieng

Court: High Court at Eldoret

Parties: Paul Tono Pymto & Charles Kibiego Rono v Giles Tarpin Lyonnet

Citation: Paul Tono Pymto & Another V Giles Tarpin Lyonnet [2014] eKLR

 

When presumption of marriage entitled a party to take out letters of adminstration

Paul Tono Pymto & Another v Giles Tarpin Lyonnet

Succession Cause No 57 of 2010

High Court at Eldoret

F A Ochieng, J

January 17, 2014

Reported by Teddy Musiga

Issue:

  1. Whether presumption of marriage could entitle one to take out letters of administration.

 

Law of Succession – Probate and Administration – intestate succession - Objector proceedings – objector’s claim to be made sole administrator of the estate of the deceased – scope of powers administrators to estate of deceased persons -– Law of Succession Act, section 66

 

Held:

  1. There was an irrefutable legal presumption of marriage between the objector and the deceased. The objector was therefore declared the sole administrator of the estate of the deceased.
  2. When a person died intestate, the estate of the deceased could not be effectively distributed outside the court. “Effective distribution” meant the exercise which could thereafter enable each beneficiary to get their lawful title to the portion which had been given to him or her.
  3. The Chiefs and members of the respective families had a role to play in trying to help in resolving issues of distribution, but without an order from the court, the Commissioner of Lands or the Registrar of Lands could not issue a title to any beneficiary.
  4. It was only when the court of law gave an order, specifying the property which was to be transferred to a particular person, that the said person would thereafter acquire a title thereto lawfully.
  5. In matters of administration of the estates of persons who died intestate, Chiefs and family members had a very limited role to play.
  6. Administrators had to appreciate that their role was to gather together all the assets of the deceased. They then also identified the liabilities. They had no authority to dispose of the assets without express orders from the court. They did not even have authority to distribute the assets.
  7. When they had paid off all liabilities, the administrators had to return to the court to seek authority to distribute the remaining assets to the beneficiaries.
  8. Administrators were answerable to the court and to the dependants for their actions.

 

Objection proceedings allowed. Each party were to bear the costs of the objection proceedings.

Cases: None Refered

Statutes:

East Africa;

  1. Succession Act (cap 160) section 66 – (Interpreted)

Advocates: None Mentioned

 

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Case Number: Criminal Appeal 163 of 2012 Date Delivered: 17 Jan 2014

Judge: Cecilia Wathaiya Githua

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Citation: F M W V Republic [2013] eKLR

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Case Number: Criminal Appeal 41 of 2013 Date Delivered: 17 Jan 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Kerugoya

Parties: Anthony Kinyua Mbogo v Republic

Citation: Anthony Kinyua Mbogo V Republic [2014] eKLR

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Peter Maina Mureithi V Republic [2014] eKLR

Case Number: Criminal Appeal 132 of 2012 Date Delivered: 17 Jan 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Kerugoya

Parties: Peter Maina Mureithi v Republic

Citation: Peter Maina Mureithi V Republic [2014] eKLR

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Republic V District Surveyor Kajiado District & 2 Others Ex-Parte Kisiangu Parmuseine Salaashi & Another [2014] eKLR

Case Number: Misc. Civil Application 449 Of 2012 (J.R) Date Delivered: 17 Jan 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v District Surveyor Kajiado District,District Lands Registrar Kajiado District & David Parmusien Loikuni Ex-Parte Kisiangu Parmuseine Salaashi & Regina Parmuseine

Citation: Republic V District Surveyor Kajiado District & 2 Others Ex-Parte Kisiangu Parmuseine Salaashi & Another [2014] eKLR

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Samuel Githua Ngari & Another V Republic [2014] eKLR

Case Number: Criminal Appeal 70 of 2012 Date Delivered: 17 Jan 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Kerugoya

Parties: Samuel Githua Ngari & Mary Njoki Njogu v Republic

Citation: Samuel Githua Ngari & Another V Republic [2014] eKLR

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Benson Muriithi Kabogo V Republic [2014] eKLR

Case Number: Criminal Appeal 182 of 2012 Date Delivered: 17 Jan 2014

Judge: Cecilia Wathaiya Githua

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Court: High Court at Eldoret

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George S Onyango OGW V Board Of Directors Of Numerical Machining Complex Limited Minister For Industrialization Attorney- General

Case Number: Petition 35 of 2012 Date Delivered: 16 Jan 2014

Judge: James Rika

Court: Industrial Court at Nairobi

Parties: George S Onyango OGW v Board of Directors of Numerical Machining Complex Limited, Minister for Industrialization & Attorney - General

Citation: George S Onyango OGW V Board Of Directors Of Numerical Machining Complex Limited Minister For Industrialization Attorney- General

 

Enforcement of Constitutional Jurisdiction in Labour Law Practices

George S. Onyango v  & Board of Directors of Numerical machining Complex Ltd & 2 others

Petition No 35 of 2012

Industrial Court at Nairobi

James Rika, J

Reported by Phoebe Ida Ayaya

 

Constitutional Law –petition- constitutional jurisdiction -whether the petitioner properly invoked the constitutional jurisdiction-whether the constitutional jurisdiction was enforced- The Constitution of Kenya, 2010

 

Employment Law-employment practices-validity of decisions made by company with regards to employment practices of a company-

 

Statutes-interpretation of statutes-whether sections a 3 and 38 of the State Corporations Act Cap 446 governed the company- State Corporations Act Cap 446 sections 3 , 38

Issues

 

[a] Whether the Petitioner properly invoked the Constitutional Jurisdiction?

[b] Whether the Company is fully governed to the State Corporations Act Cap 446 the Laws of Kenya?

 [c] Whether the Board of Directors of the Company was properly constituted so as to render its employment decisions concerning the Petitioner legitimate?.

 

Held:

  1. Every exercise of state power was subject to constitutional review. All law derived its force from the organic law, and all conduct sourced in law, shall as a logical matter be consistent with the organic law. There were common considerations in private and public law claims. Although the bewitching perception of the Constitution is that it defined the relationship between the State and its Citizens, there was a growing seepage of fundamental rights into common law disputes between private parties. Interpretation of the law was not necessarily contingent upon the parties to the case. 
  2. An act that was deemed unconstitutional when raised by an individual against the state would still be deemed unconstitutional when raised by the individual against another individual. Some of the most notorious violators of fundamental freedoms and rights in the labour market today were not states; they were individual and corporate employers. The Court did not see the Petitioner’s invocation of constitutional jurisdiction as misplaced. His contract was the first port of entry, and he may as well have sought remedy from within the common law, or relevant legislation.

 

  1.  Numerical Machining Complex was wholly owned by two Government Institutions- Kenya Railways and the University of Nairobi, and though registered as a Private Company under the Companies Act, was fully governed by the State Corporations Act.  Section 3 allowed the President to establish State Corporations, while Section 5A allowed the President to exempt State Corporations not created by the President under Section 3, from any of the provisions of the State Corporations Act. There was no material availed by the Petitioner to suggest that the Company was exempted from any provisions of the Act.  The Act applied in full to the Company
  2. The Respondents submitted there was no properly appointed Board prior to the 18th November 2011. The truth is that even after 18th November 2011, there was no validly created Board. It was not made clear why the previous Board was not, in the eyes of the Respondents, properly in office.  There was nothing reversing the instruments by which the first Board was established.
  3.  The Court was convinced the Board Chaired by Professor Nick Wanjohi, which was the subject matter of the Petition, had no legal validity.; that any decisions made by the illegally constituted Board were illusory and had no effect in law.
  4. Any decisions made by the Board constituted after 18th November 2011 relating to labour and employment at the workplace; the recruitment, supervision, promotion, demotion, and administration of contracts of employment were not valid. {Julius Nyarotho v. the Attorney General & 3 Others [2013] e-KLR]

Orders

[a] It is declared that the President of Kenya and the Acting Minister for Industrialization contravened the Articles of Association of the Numerical Machining Complex Limited, the State Corporations Act, and the Constitution of Kenya by appointing the Chairman to the Board of Numerical Machining Complex Limited on 18th November 2011, and by appointing the Board Members of the Numerical Machining Complex Limited, on 20th January 2012.

 

[b] The Board of the Numerical Machining Complex Limited was declared to have been unlawfully created.

 

[c] The Legal Notice No. 14701 appointing the Chairman, and Legal Notice No. 450 appointing the aforesaid Board Members, were declared null and void ab initio.

 

[d] The Petitioner shall be compensated by the Respondents for violation of his fundamental rights and for breach of his contract of employment by payment of coalesced damages assessed at Kshs. 600,000.

 

[e] The Respondents shall bear the costs of the Petition.

 

Cases

East Africa

1.East African Portland Cement Co Limited v Attorney General & another Petition No 9 of 2012 –(Followed)

2.GMV v Bank of Africa Limited Cause No 1227 of 2011–(Applied)

3.Kinyua, Anne v Nyayo Tea Zone Development Cause No 1065 of 2012 –(Followed)

4.Kenyatta, Uhuru Muigai v Nairobi Star Publications Limited Petition No 187 of 2012 –(Mentioned)

5.Munga, Alphonse Mwangemi & 11 others v Africa Safari Club Petition No 564 of 2004 –(Applied)

6.Musau, Isabel Wayua v Copy Cat Limited Cause No 1562 of 2011 –(Followed)

7.Njeru, Julie Topirian v Kenya Tourist Board Cause No 886 of 2010 –(Explained)

8.Nyarotho, Julius v the Attorney- General and 3 others Miscellaneous Civil Application No 36 of 2012 –(Applied)

9.Wafubwa, Alex Malikhe & 7 others v Elias Nambakha Wamita & 4 others Petition No 7 of 2012 (Mentioned)

South Africa

1.Carmichele v Minister of Safety and Security [2001] [4] SA 938, 2001 [10] BCLR 995 –(Explained)

India

1.JP Bansal v State of Rajastan & another Civil Appeal 5982 of 2001 –(Applied)

Texts & Journals

1.Tribe, LH., 1989. The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics. 103 Harvard Law Review pp 1, 7, 8, 20

Statutes

East Africa

1.Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 53 –(Interpreted)

2.Companies Act (cap 486) –(Interpreted)

3.Constitution of Kenya, 2010 articles 22, 23, 27(1)(c); 28; 41; 47; 258–(Interpreted)

4.State Corporations Act (cap 446) sections 3, 5(3); 6(1); 7(3) –(Interpreted)

Advocates

1.Mr JO Arwa for the Petitioner

2.Mr Imende for the 1st Respondent

3.Mr L Muiruri, Senior Principal State Counsel, for the 2nd & 3rd Respondents

 

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