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David Mwaure Waihiga V Public Service Commission & 4 Others [2017] eKLR

Case Number: Petition 291 of 2015 Date Delivered: 09 Nov 2017

Judge: John Muting'a Mativo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: David Mwaure Waihiga v Public Service Commission, National Assembly, Parliament, Ethics and Anti-Corruption Commission & Attorney General

Citation: David Mwaure Waihiga V Public Service Commission & 4 Others [2017] eKLR

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Charles Kuria V Republic [2017] eKLR

Case Number: Criminal Appeal 26 of 2017 Date Delivered: 09 Nov 2017

Judge: Lucy Waruguru Gitari

Court: High Court at Kerugoya

Parties: Charles Kuria v Republic

Citation: Charles Kuria V Republic [2017] eKLR

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Peter Ndugo Muraguri V Republic [2017] eKLR

Case Number: Criminal Appeal 64 of 2015 Date Delivered: 09 Nov 2017

Judge: Teresia Mumbua Matheka

Court: High Court at Nyeri

Parties: Peter Ndugo Muraguri v Republic

Citation: Peter Ndugo Muraguri V Republic [2017] eKLR

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Stephen Gikonyo Kirugumi V William Onwonga & Another [2017] eKLR

Case Number: Miscellaneous Criminal Application 59 of 2017 Date Delivered: 08 Nov 2017

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Stephen Gikonyo Kirugumi v William Onwonga & Director Of Public Prosecution

Citation: Stephen Gikonyo Kirugumi V William Onwonga & Another [2017] eKLR

A Person Cannot Transfer a Criminal Case without Consent of the Prosecutor

 

Stephen Gikonyo Kirugumi vs William Onwonga and Another

Miscellaneous Criminal Application No 59 of 2017

High Court at Nanyuki

K Mary, J

November 8, 2017

Reported by Ian Kiptoo

 

Criminal Procedure–Director of Public Prosecution (DPP)-powers of DPP to transfer a case-whether the High Court had the power to transfer a criminal case on the direct request of a Complainant–whether a complainant had the locus standi to seek the transfer of a criminal case from one court to another without the inclusion of the Director of Public Prosecution -Constitution of Kenya, 2010, article 157(6)

Constitutional law-fundamental rights and freedoms-right to fair hearing-where an accused advocate sought to transfer his criminal case so as to avoid being judged as guilty by his clients and potential clients-whether the failure to transfer the Respondents’ criminal case would have occasioned a violation of his  right to fair trial

Civil Practice and Procedure-res Judicata-application of the doctrine of res judicata-whether the doctrine of res judicata applied to criminal cases

 

Brief Facts

The Applicant, the purchaser of the suit property, and the seller were both represented in the transaction by an advocate, the Respondent. That transaction was not completed because it transpired at some point before registration of the transfer that the title document was a forgery. As a consequence both the Seller and the Respondent were charged with criminal offences relating to the alleged forged title document before the Chief Magistrate’s Court in Nanyuki. The seller was arraigned before the Chief Magistrate’s Court Nanyuki under a criminal file number 1179 of 2016 while the Respondent was charged under criminal file number 1358 of 2016.

The Respondent brought before the Court a prayer for the transfer of his criminal case from the Chief Magistrate’s Court at Nanyuki to Chief Magistrate’s Court at Isiolo. He sought that transfer on the basis that he ordinarily represented clients before the Courts at Nanyuki, Nyeri, Embu, Muranga, Kerugoya and Karatina.  That if his criminal case proceeded before the Chief Magistrate’s Court Nanyuki in the presence of his clients and potential clients he would be prejudiced.

The seller contended that the Respondent failed to inform the Court that his criminal case and his criminal case were due to be consolidated, which consolidation was frustrated by the order of transfer of the Respondent’s criminal file. He further submitted that the transfer of the Respondent’s file to Isiolo Chief Magistrate’s Court would have prejudiced him and his witnesses who resided in Nyeri.

Issues

  1. Whether a complainant had the locus standi to seek the transfer of a criminal case from one court to another without the inclusion of the Director of Public Prosecution.
  2. Whether the failure to transfer the Respondents’ criminal case would have occasioned a violation of his right to fair trial.
  3. Whether the doctrine of res judicata applied to criminal cases.

 

Held

  1. The Director of Public Prosecution (DPP) was empowered by the Constitution of Kenya, 2010 (Constitution) article 157(6) to exercise the state power of criminal prosecution. That power to prosecute included the power to make application for transfer of criminal cases as sought by the Applicant. The Applicant was not a party in the criminal trial of the Respondent, but rather was a complainant whose interest were solely represented by the DPP as provided under article 157(6). The DPP’S power as provided under the Constitution was not subject to anybody’s’ consent or direction.
  2. It only made sense that although a person who reported a crime sought to withdraw his complaint, the DPP, in whose name the criminal proceedings began and could be sustained, had to be a part of the withdrawal process in a considerable manner. Indeed, the Constitution granted the DPP powers to institute, undertake, take over, continue and discontinue proceedings in article 157 of the Constitution.
  3.  The power to continue proceedings had to emphatically include the powers to rightfully oppose applications for withdrawal of complaints as such applications, if unopposed, might have caused proceedings to be improperly discontinued. Thus, the Respondent was right to submit that the Applicant had no locus standi to have sought the transfer of the criminal case.
  4. The fact that the DPP intended to consolidate the criminal cases of the Respondent and Stanley could not have been an impediment to the transfer of the Respondent’s criminal file to Isiolo Chief Magistrate’s Court. That was because the Respondent raised valid reasons which demonstrated that he would suffer prejudice in the eyes of his clients and potential clients who would have presumed him to be guilty even before the trial. The right to fair trial was the upper most consideration of the Court in making the order of transfer of the Respondent criminal case file.
  5. There was nothing to stop the DPP from seeking for the transfer of the criminal file of Stanley which was presently pending before the Nanyuki Chief Magistrates Court to Isiolo Chief Magistrate’s Court so as to ensure that it was available for consolidation with the one of the Respondent’s criminal case. If that was done it would ensure that the interest of justice in respect of the Respondent would be protected.
  6. The issue raised that the Applicant and his witnesses would have been prejudiced in that they would have to travel to Isiolo would have been covered by the fact that the Applicant and his witnesses would have been paid travelling expenses to Isiolo by the Trial Court.
  7. The doctrine of res judicata raised by the Respondent in his replying affidavit did not apply to criminal cases. That doctrine only applied to civil action. What would apply in criminal cases and was probably similar to that doctrine was the issue of abuse of court process if a party indeed filed more than one application in the same matter.

 

Application dismissed; no order as to costs

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Edmund Mwangi Waweru V Gabriel Wanjohi Waweru & Another [2017] eKLR

Case Number: Environment and Land Case 717 of 2014 Date Delivered: 08 Nov 2017

Judge: Lucy Waithaka

Court: Environment and Land Court at Nyeri

Parties: Edmund Mwangi Waweru v Gabriel Wanjohi Waweru & Kenya Forest Service

Citation: Edmund Mwangi Waweru V Gabriel Wanjohi Waweru & Another [2017] eKLR

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Mohamed Abdi Maalim & 2 Others V Cabinet Secretary Minister Of Interior And Co-ordination Of National Government & 3 Others [2017] eKLR

Case Number: Petition 12 of 2016 Date Delivered: 08 Nov 2017

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Mohamed Abdi Maalim, Yussuf Mohamud Mohamed & Omar Abdille Dagane v Cabinet Secretary Minister of Interior and Co-ordination of National Government, Regional Co-ordinator North Eastern Region, County Commissioner of Wajir & Attorney General

Citation: Mohamed Abdi Maalim & 2 Others V Cabinet Secretary Minister Of Interior And Co-ordination Of National Government & 3 Others [2017] eKLR

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Gibson Makini Onyambu V Republic [2017] eKLR

Case Number: Criminal Appeal 14 of 2016 Date Delivered: 08 Nov 2017

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Narok

Parties: Gibson Makini Onyambu v Republic

Citation: Gibson Makini Onyambu V Republic [2017] eKLR

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Peter Mugambi Muchee V Harrison Kirimi [2017] eKLR

Case Number: Environment & Land Case 72 of 2017 Date Delivered: 08 Nov 2017

Judge: Peter Muchoki Njoroge

Court: Environment and Land Court at Chuka

Parties: Peter Mugambi Muchee v Harrison Kirimi

Citation: Peter Mugambi Muchee V Harrison Kirimi [2017] eKLR

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Isaac Mutinda Mutua V Republic [2017] eKLR

Case Number: Criminal Case Appeal 39 of 2017 Date Delivered: 08 Nov 2017

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Isaac Mutinda Mutua v Republic

Citation: Isaac Mutinda Mutua V Republic [2017] eKLR

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Omar Jibril Mohamed V County Governor, Mandera County & 3 Others [2017] eKLR

Case Number: Constitutional Petition 2 of 2016 Date Delivered: 08 Nov 2017

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Omar Jibril Mohamed v County Governor, Mandera County, County Secretary, Mandera County, County Government of Mandera & County Assembly of Mandera

Citation: Omar Jibril Mohamed V County Governor, Mandera County & 3 Others [2017] eKLR

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Republic V University Of Nairobi Exparte Bargorett Victor Kiprop [2017] eKLR

Case Number: Judicial Review 454 of 2016 Date Delivered: 08 Nov 2017

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v University of Nairobi Exparte Bargorett Victor Kiprop

Citation: Republic V University Of Nairobi Exparte Bargorett Victor Kiprop [2017] eKLR

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James Lebite V Republic [2017] eKLR

Case Number: Criminal Appeal 31 of 2017 Date Delivered: 08 Nov 2017

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: James Lebite v Republic

Citation: James Lebite V Republic [2017] eKLR

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Elias Munene Muchira V Republic [2017] eKLR

Case Number: Criminal Appeal 108 of 2016 Date Delivered: 08 Nov 2017

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Elias Munene Muchira v Republic

Citation: Elias Munene Muchira V Republic [2017] eKLR

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Republic V Robert Kiprotich Koech [2017] eKLR

Case Number: Criminal Case 46 of 2014 Date Delivered: 08 Nov 2017

Judge: Mumbi Ngugi

Court: High Court at Kericho

Parties: Republic v Robert Kiprotich Koech alias Kipkoikoie

Citation: Republic V Robert Kiprotich Koech [2017] eKLR

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Bob Marsellus Oile V Joseph Okelo Odeyo [2017] eKLR

Case Number: Environment and Land Case 15 of 2017 Date Delivered: 08 Nov 2017

Judge: Stephen Kibunja

Court: Environment and Land Court at Kisumu

Parties: Bob Marsellus Oile v Joseph Okelo Odeyo

Citation: Bob Marsellus Oile V Joseph Okelo Odeyo [2017] eKLR

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Moses Githinji Mbaya & Another V Republic [2017] eKLR

Case Number: Criminal Appeal 110 & 111 of 2016 (Consolidated ) Date Delivered: 08 Nov 2017

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Moses Githinji Mbaya & Charles Ng’orua Benjamin v Republic

Citation: Moses Githinji Mbaya & Another V Republic [2017] eKLR

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Geoffrey Kariuki Machira V Republic [2017] eKLR

Case Number: Criminal Appeal 2 of 2017 Date Delivered: 08 Nov 2017

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Geoffrey Kariuki Machira v Republic

Citation: Geoffrey Kariuki Machira V Republic [2017] eKLR

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Katiba Institute V Presidents Delivery Unit & 3 Others [2017] eKLR

Case Number: Constitutional Petition 468 of 2017 Date Delivered: 08 Nov 2017

Judge: Enock Chacha Mwita

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Katiba Institute v Presidents Delivery Unit,Andrew Wakahiu,Nzioka Waita & Joseph Kinyua

Citation: Katiba Institute V Presidents Delivery Unit & 3 Others [2017] eKLR

Circumstances under which a Body Corporate may be considered as a Citizen for the Purpose of Actualizing the Right to Access Information

Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR

Constitutional Petition 468 of 2017

High Court of Kenya at Nairobi

E  C Mwita, J

November 8, 2017

Reported by John Ribia and Njeri Mweha

Constitutional law - fundamental rights and freedoms - right to access to information - right of access to information limited to citizens - whether a corporate body is a “citizen” for purposes of enforcement of the right to access to information under article 35 of the Constitution of Kenya, 2010 and under the Access to Information Act. – Constitution of Kenya 2010 article 35; Access to Information Act section 2.

Constitutional Law – fundamental rights and freedoms - duty of public entities to provide information to citizens - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the corporate body’s right to access information - whether a public entity had a constitutional obligation under article 35(1)(a) and (b) of the Constitution of Kenya, 2010 to provide information to  citizens - Constitution of Kenya, 2010, article 35; Access to Information Act sections 2, 4, 5 and 8.

Constitutional Law – national values and principles of governance – rule of law – participation of the people – human rights – good governance – transparency – accountability - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the values of rule of law, participation of the people, human rights, good governance, transparency and accountability – Constitution of Kenya, 2010 article 10.

Constitutional Law – leadership and integrity – obligations imposed on public entities and State officers – responsibilities of leadership – conduct of state officers - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the obligations imposed on public entities by articles 73(1) and 75(1) of the Constitution of Kenya, section 3 of the Leadership and Integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act – Constituion of Kenya, 2010 articles 73(1) and 75(1);Leadership and Integrity Act section 3;  Public Officers Ethics Act sections 8, 9 and 10.

Brief facts

On diverse dates in 2017, the 1st Respondent published advertisements in the media, through billboards and in business messaging or tags named ’GoK Delivers’ and #Jubilee Delivers. The Petitioner in pursuit of its right to access information, wrote to the 1st Respondent seeking information on how many advertisements had been published through what media schedules and dates when it was done, copies of the documents advertised, total cost incurred and information on the relevant government accounting office(r) and the individual or government agency that met the cost. The information sought was to cover the period between May 25, 2017 to August 16, 2017.

The letter was delivered but no response was received from the Respondents.  That forced the Petitioner to file the instant petition to compel the Respondents to furnish it with the information.

Issues

  1. Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the corporate body’s right to access information.
  2. Whether a corporate body is a “citizen” for purposes of enforcement of the right to access to information under article 35 of the Constitution of Kenya, 2010 and under the Access to Information Act.
  3. Whether a public entity had a constitutional obligation under article 35(1) (a) and (b) of the Constitution of Kenya, 2010 to provide information to a citizen.
  4. Whether article 35 of the Constitution and section 5 of the Access to Information Act set out conditions for accessing information.
  5. Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the values of rule of law, participation of the people, human rights, good governance, transparency and accountability provided under article 10 of the Constitution.
  6. Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the obligations imposed on public entities by articles 73(1) and 75(1) of the Constitution of Kenya, section 3 of the Leadership and Integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act.
  7. Whether the jurisdiction of the High Court to determine petitions that sought to challenge the violations of the right to access information was pegged on the condition that a report had to be made before the Commission on Administrative Justice.

Relevant Provisions of the Law

The Constitution of Kenya 2010

Article 35

Access to Information

(1) Every citizen has the right of access to—

(a) information held by the State; and

(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

Article 165(3)

High Court

(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;                                              

Access to Information Act

Section 2

Interpretation

"citizen" means any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens.

"exempt information" means information that may be withheld by a public entity or private body in accordance with section 6;

“public entity” means—

(a) any public office, as defined in Article 260 of the Constitution; or

(b) any entity performing a function within a commission, office, agency or other body established under the Constitution

Section 4

Right to information

(1) Subject to this Act and any other written law, every citizen has the right of access to information held by—

(a) the State; and

(b) another person and where that information is required for the exercise or protection of any right or fundamental freedom.

(2) Subject to this Act, every citizen's right to access information is not affected by—

(a) any reason the person gives for seeking access; or

(b) the public entity's belief as to what are the person's reasons for seeking access.

(3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.

(4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.

(5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.

Section 5

Disclosure of information by public entities

(1) Subject to section 6, a public entity shall—

(a) facilitate access to information held by such entity and which information may include—

(i) the particulars of its organization, functions and duties;

(ii) the powers and duties of its officers and employees;

(iii) the procedure followed in the decision making process, including channels of supervision and accountability;

(iv) salary scales of its officers by grade;

(v) the norms set by it for the discharge of its functions;

(vi) guidelines used by the entity in its dealings with the public or with corporate bodies, including the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; and

(vii) a guide sufficient to enable any person wishing to apply for information under this Act to identify the classes of information held by it, the subjects to which they relate, the location of any indexes to be inspected by any person;

(b) during the year commencing on first January next following the first publication of information under paragraph (a), and during each succeeding year, cause to be published statements updating the information contained in the previous statement or statements published under that paragraph;

(c) publish all relevant facts while formulating important policies or announcing the decisions which affect the public, and before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interests of natural justice and promotion of democratic principles;

(d) provide to any person the reasons for any decision taken by it in relation to that person;

(e) upon signing any contract, publish on its website or through other suitable media the following particulars in respect of the contract entered into—

(i) the public works, goods acquired or rented, and the contracted service, including any sketches, scopes of service and terms of reference;

(ii) the contract sum;

(iii) the name of the service provider, contractor or individual to whom the contract has been granted; and

(iv) the periods within which the contract shall be completed.

(2) Information shall be disseminated taking into consideration the need to reach persons with disabilities, the cost, local language, the most effective method of communication in that local area, and the information shall be easily accessible and available free or at cost taking into account the medium used.

(3) At a minimum, the material referred to in subsection (1) shall be made available—

(a) for inspection by any person without charge;

(b) by supplying a copy to any person on request for which a reasonable charge to cover the costs of copying and supplying them may be made; and

(c) on the internet, provided that the materials are held by the authority in electronic form.

(4) Subsection (1) (a) shall come into operation twelve months after the commencement of this Act.

Section 8

Application for access

(1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the

public officer or any other official to understand what information is being requested.

(2) Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability,

the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs.

(3) The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request.

(4) A public entity may prescribe a form for making an application to access

information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form.

Section 9

Processing of application

(1) Subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty one days of receipt of the application

(2) Where the information sought concerns the life or liberty of a person, the information officer shall provide the information within forty-eight hours of the receipt of the application.

(3) The information officer to whom a request is made under subsection (2)  may extend the period for response on a single occasion for a period of not more than fourteen days if—

(a) the request is for a large amount of information or requires a search through a large amount of information and meeting the stipulated time would unreasonably interfere with the activities of the information holder; or

(b) consultations are necessary so as to comply with the request and the consultations cannot be reasonably completed within the stipulated time.

(4) As soon as the information access officer has made a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester, indicating—

(a) whether or not the public entity or private body holds the information sought;

(b) whether the request for information is approved:

(c) if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and

(d) if the request is declined, a statement about how the requester may appeal to the Commission";

(5) A public officer referred to in subsection (1) may seek the assistance of any other public officer as the first mentioned public officer considers necessary for the proper discharge of his or her duties and such other public officer shall render the required assistance.

(6) Where the applicant does not receive a response to an application within the period stated in subsection (1), the application shall be deemed to have been rejected.

Held

  1. The right to access information was a right that the individual had to access information held by public authorities acting on behalf of the state.  It was an important right for the proper and democratic conduct of government affairs, for these right enabled citizens to participate in that governance.
  2. Successful and effective public participation in governance largely depended on the citizen’s ability to access information held by public authorities. Where they did not know what was happening in their government and or if actions of those in government were hidden from them, they could not be able to take meaningful part in their country’s governance. In that context, the right to access information became a foundational human right upon which other rights must flow. For citizens to protect their other rights, the right to access information became critical for any meaningful and effective participation in the democratic governance of their country.
  3. The importance of the right to access information was fully appreciated by the drafters of the Constitution of Kenya, 2010 and they dutifully included article 35 to make the right attainable as the foundation for an open, responsive, accountable and democratic government and its institutions. The Constitution granted citizens’ access to information as a constitutional right and only the same Constitution could limit that access.
  4. The Constitution was clear that information held by the State was accessible by citizens and that information was available on request. What that meant was that once a citizen placed a request to access information, the information was to be availed to the citizen without delay.
  5. Article 35 of the Constitution did not in any way place conditions for accessing information. On the other hand, section 5 of the Access to Information Act (the Act) further provided that a public entity should facilitate access to information held by it. Under section 8 of the Act, a citizen who wanted to access information had to do so in writing with sufficient details and particulars to enable the public officer to understand what information was being requested. The Act was also sufficiently clear that the information should be given without delay and at no fee, notwithstanding why the citizen wanted to access information. Section 9 of the Act stated that a decision on the request to access information should be made and communicated within 21 days. The communication should include whether the public entity had the information and whether it would provide it.
  6. The right to access information was inviolable because it was neither granted nor grantable by the State. It was a right granted by the Constitution and was protected by the same Constitution.
  7. State organs or public entities had a constitutional obligation to provide information to citizens as of right under the provisions of article 35(1)(a) of the Constitution. They could not escape the constitutional requirement.
  8. The right to access information was a basis for accountability, responsiveness and openness.  To give effect to the values of accountability, responsiveness and openness, the public had to have access to information held by the state.  
  9. The right to access information was also founded on International instruments. Article 19 of the Universal Declaration of Human Rights, article 19(2) of International Convention on Civil and Political Rights and article 9(1) of Africa Charter on Human and Peoples Rights also made the right to information imperative. These international instruments were ratified by Kenya and by virtue of article 2(5) of the Constitution, general rules of international law and any treaties or conventions ratified by Kenya formed part of the law of Kenya.
  10. The State had constitutional obligation, without qualification, to allow citizens access information and they could not be denied that right by the state.
  11.  In the case of Nairobi Law Monthly Company Limited V Kenya Electricity Generating Company & 2 Others [2013] eKLR  the Court stated that the right to access information was only available to citizens and in arriving at that conclusion, the Court relied on the decision  of  Famy Care Limited v Public Procurement Administrative Review Board & another & 4 others [2012] eKLR. Both of the above decisions were made before the enactment of Access to Information Act, in 2016.  Section 2 of the Act defined a citizen as any individual who had Kenyan citizenship, and any private entity that was controlled by one or more Kenyan citizens. From the definition, a juristic person whose director(s) was a citizen was considered a citizen for purpose of exercising the right to access to information under article 35(1) (a) of the Constitution as read with section 4 of Access to information the Act.
  12. The Petitioner, by virtue of having Kenyan directors, though a juristic person, was a citizen for purposes of article 35(1)(a) as read with section 4 of  Access to information Act and was entitled to seek and have information as a citizen.
  13. It was up to the Respondents to show how the information sought affected state security and therefore, fell within section 6 of the Act. From the letter dated August 17, 2017, the information sought was about dates, nature of advertisements and copies thereof, the cost of advertisements and who met that cost.
  14.  Dates when advertisements were done, nature and copies of advertisements, cost of advertisements and who met the cost of those advertisements could not be information that affected state security. Where a party alleged, like the Respondents had done, that information sought affected state security, it was the duty of that person to show to the satisfaction of the Court that indeed that was the case.  It was not enough for a party to merely allege without showing how, that disclosure of information would affect state security.
  15. There was greater responsibility given the nature of the Constitutional obligation the State, State officers or public bodies had for disclosure. The exercise of the right to information should not require individuals to demonstrate a specific interest in the information. Where a public authority sought to deny access to information, it was to bear the onus of justifying the refusal at each stage of the proceedings. The Access to Information Act was also absolutely clear that information should be disclosed free of charge, the reason for seeking information notwithstanding.
  16.  In the instant case no clear legal provision notwithstanding, no access to information was given or reason given; either that the respondents did not have the information or that they would not disclose the information and give justification for it. The Respondents’ contention that the information sought was limited by section 6(1) (a) and 6(2)(j) of the Access to Information Act could not be accepted. The Respondents did not demonstrate the rationale for that contention given the fact that article 35 had no limitation to the right to access information. They were also under duty to show that the purported limitation fell within the ambit of article 24(1) of the Constitution and that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the importance of the right in the citizens’ quest for public participation in the democratic governance of Kenya.
  17. There was no provision in the Access to Information Act that made a report to the Commission on Administrative Justice (CAJ) a condition precedent to triggering the jurisdiction of the High Court to deal with petitions filed that sought to challenge violations of the right to access information under article 35 of the Constitution. The High Court had unlimited jurisdiction under article 165(3)(b) to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened. The Respondents’ contention that the petition was premature was unsustainable.
  18.  The Petitioner sought information in exercise of its constitutional right under article 35 of the Constitution.  Even though the law required the public entity to respond to the request within 21 days on whether or not it was in possession of the information and would or would not disclose, the Respondents ignored the law. The Respondents were under both a constitutional and legal obligation to allow the Petitioner to access information in their possession and held on behalf of the public. That was an inviolable constitutional right and that was clear from the language of article 35 of the Constitution. Any limitation had to meet the constitutional test and only then could one raise limitation as a ground for non-disclosure.
  19. Rights have inherent value and utility and their recognition, protection and preservation is not an emanation of state largesse because they are not granted, nor are they grantable, by the State. They attach to persons, all persons, by virtue of their being human and respecting rights is not a favour done by the state or those in authority. They merely follow a constitutional command to obey.
  20. The Respondents were under obligation to obey the law and allow the Petitioner access information or where not possible give reasons for that. They failed in both instances thus violated the Petitioner’s rights under the Constitution and the law.
  21. The right to access information was not a fringe right to other rights in the Bill of Rights. It was integral to the democracy conceptualised by the Constitution of Kenya, 2010 in that it encouraged public participation, abhorred secrecy in governance and above all sought to ensure that public power delegated to leaders was not abused.
  22.  The Respondents violated the Petitioner’s right of access to information .No effort was made to justify the violation.

Petition Allowed.

Orders:

  1. Declaration issued that the failure by the 1st and 2nd Respondents to provide information sought under article 35(1) of the Constitution and also to publicise the information in accordance with article 35(3) thereof on the basis of the Petitioner’s request dated August 17, 2017 was a violation of the right to access information.
  2. Declaration issued that the failure by the 1st Respondent to provide information sought under article 35(1)(a) of the Constituion and also publicise the information in accordance with article 35(3) thereof on the basis of the Petitioner’s request dated August 17, 2017 was a violation of article 10 of the Constitution specifically the values of the rule of law, participation of the people, human rights good governance transparency and accountability.
  3. Declaration issued that failure by the 2nd, 3rd and 4th Respondents to provide information sought under article 35(1) (a) and also to publish the information in accordance with article 35(3) thereof was a violation of the obligations imposed on the Respondents by chapter 6 of the Constitution, specifically articles 73(1) and 75(1) of the Constitution, section 3 of the leadership and integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act.
  4. Order of mandamus issued that compelled the 1st and 2nd Respondents to provide at the Respondents cost, information sought by the Petitioner in their letter to the Respondents dated August 17, 2017.
  5. Costs awarded to the Petitioner.

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The Duty of a Court to Inform an Accused Person Represented by an Advocate of the Options Available to him on Defence

 

Joseph Mwangi Njoroge v Republic [2017] eKLR

Criminal Appeal Number 314 of 2012

High Court at Nairobi

G.W.Ngenye-Macharia, J

November 8, 2017.

Reported by Kakai Toili

 

Criminal Procedure – criminal trial process – defence – options available to an Accused person – duty of the Court to inform an Accused person the options available to him – where an Accused person was represented by an advocate - whether it was mandatory for a court to inform an Accused person represented by an advocate, of the options available to him in defence – Criminal Procedure Code, sections 211 & 311

Constitutional Law – fundamental rights and freedoms – right to fair hearing – submissions – written submissions – failure to give an Accused person an opportunity to file written submissions - whether failure to give an Accused person an opportunity to file written submissions amounts to violation of the right to fair hearing.

Criminal Procedure – submissions – written submissions – filing of written submissions – whether it was mandatory for an Accused person to file written submissions – Constitution of Kenya, 2010, article 159; Criminal Procedure Code, sections 311

Criminal Procedure – retrial – factors to consider before ordering a retrial - what were the factors to be considered before ordering a retrial.

Statutes – interpretation of statutes – interpretation of section 4 (a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994  – whether section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994 provided for a mandatory sentence - Narcotic Drugs and Psychotropic Substances Control Act, 1994, section 4(a).

 

Brief Facts:

The Appellant was charged with trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances Act, 1994(the Act). The particulars of the offence were that on February 29, 2012 at around 7.00 a.m, at Ngara within Nairobi area, trafficked by conveying narcotic drugs namely cannabis to wit 50 stones with a street value of Kshs. 15,000/- in contravention of the Act.

 The Appellant was found guilty and sentenced to pay a fine of Kshs. 1,000,000/- or in default serve 5 years imprisonment and in addition serve a life imprisonment. He was dissatisfied with both the conviction and sentence as a result of which he filed the appeal on the grounds that; the charge sheet was defective, that the provisions of article 50(2)(c) and (k) of the Constitution were  contravened, that he was not granted an opportunity to present his defence, that the prosecution did not prove its case beyond a reasonable doubt and that section 213 of the Criminal Procedure Code was not complied with.

 

Issues:

  1.  Whether it was mandatory for a court to inform an Accused person represented by an advocate, of the options available to him in defence.
  2. Whether failure to give an Accused person an opportunity to file written submissions amounted to violation of the right to fair hearing.
  3. Whether it was mandatory for an Accused person to file written submissions.
  4. What were the factors to be considered before ordering a retrial.
  5. Whether section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994 provided for a mandatory sentence.

 

Relevant Provisions of the Law:

Constitution of Kenya, 2010

Article 159 – Judicial authority.

  1. Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
  2. In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
  1. justice shall be done to all, irrespective of status;
  2. justice shall not be delayed;
  3. alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
  4. justice shall be administered without undue regard to procedural technicalities; and
  5. the purpose and principles of this Constitution shall be protected and promoted.
  1. Traditional dispute resolution mechanisms shall not be used in a way that—
  1. contravenes the Bill of Rights;
  2. is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
  3. is inconsistent with this Constitution or any written law.

Criminal Procedure Code

Section 211 – Defence

  1. At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).
  2. If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of the witnesses.

Section 213 - Order of speeches

The prosecutor or his advocate and the accused and his advocate shall be entitled to address the court in the same manner and order as in a trial under this Code before the High Court.

Section 310 - Prosecutor’s reply

If the accused person, or any one of several accused persons, adduces any evidence, the advocate for the prosecution shall, subject to the provisions of section 161, be entitled to reply.

Section 311- Where accused adduces no evidence.

If the accused person says that he does not intend to give or adduce evidence and the court considers that there is evidence that he committed the offence, the advocate for the prosecution shall then sum up the case against the accused person, and the court shall then call on the accused person personally or by his advocate to address the court on his own behalf.

Narcotic Drugs and Psychotropic Substances Control Act, 1994

Section 4 - Penalty for trafficking in narcotic drugs, etc.

Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—

  1. in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life; or

 

Held:

  1. It was a settled practice under the Constitution of Kenya, 2010 dispensation that filing of written submissions had become the norm. Under article 159 courts could not dwell on technicalities but focused on doing substantive justice, written submissions served the purpose of expedience. Therefore, submissions could be oral or written, it all amounted to addressing the Court as provided by sections 213 and 310 of the Criminal Procedure Code. Submissions simply put meant an evaluation of the evidence of each party and analysis of the law.
  2. The Appellant failed to exercise the leave granted to him to file written submissions, that was occasioned by the failure of his advocate to file the written submissions. The Trial court ought to have given the Appellant an opportunity to file the submissions himself if he so wished since his counsel had failed him.
  3. The Appellant’s right to a fair trial was not violated, the right to file written submissions in a criminal case was only spelt out under section 311 of the Criminal Procedure Code which allowed the prosecution to sum up the case where the Appellant chose to exercise his right to remain silent with the same right being conversely applied to the defence. In instant case, the Appellant gave an unsworn statement of defence in which case the right to submit did not accord to him.
  4. Submissions by themselves were neither law nor evidence. They were only intended to sum up a case for a party. They did not constitute a new avenue to adduce evidence in a case but are rather meant as a guide to the Trial Court when evaluating the evidence before it. They did not form an integral part of the hearing and therefore they could not be said to be part and parcel of the trial.
  5. The Trial Court did not inform the Appellant of the options available to him as set out in section 311 of the Criminal Procedure Code. That duty was bestowed on the Court personally and it could not be dispensed with simply because the Appellant had an advocate on record. It sufficed for the Trial Court to merely indicate that section 211 had been complied with, that would have constituted an indicator that he understood the implications of giving a particular form of defence. That was not done and even if the Appellant was represented, it was important that it was understood that he had understood the import of adducing the unsworn defence he gave. The failure to comply with the provision meant that the entire trial was vitiated. That necessitated the Court to order a retrial.
  6. Several factors had to be considered before a retrial was ordered amongst them being;
  1.  Whether the retrial was likely to result in a conviction.
  2. Whether the retrial would aid the prosecution to close gaps in its case.
  3. Whether any prejudice would be occasioned to the Accused.
  4. Whether the interests of justice would be served.
  1. The Appellant had been in custody for over five years. The sentence imposed against the Appellant was harsh and excessive as section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994 did not provide for a mandatory sentence. Taking into account the nature and the quantity of the drug, the Appellant had served sufficient sentence.

 

 

Conviction quashed, sentence set aside and Appellant to be set free unless otherwise lawfully held.

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