[Ruling] – BANKRUPTCY LAW – discharge – application for discharge – where the application has not been brought on a manner prescribed by law – effect of – factors the court considers in such applications – validity of order

Charles Kagai Mwihia & another v Ndolo Ayah & another

High Court, at Nairobi December 11, 1992

Akiwumi J

Civil Case No 6287 of 1992

Constitutional Law-fundamental rights and freedoms-procedure to be followed to invoke the High Court’s jurisdiction where there is an allegation of violation - where there is a procedure for redress of any particular grievance by the Constitution-whether a party can invoke order LIII of the Civil Procedure Rules.

Election Petition - presidential elections - disqualification from nomination as a presidential candidate-facts which a party needs to establish where it is alleged that a presidential candidate was ineligible for nomination-procedure of challenging the nomination by way of a petition-provisions of section 19 of the National Assembly and Presidential Elections Act section 5(2) of the Constitution.

Election Petition-nominations-whether preliminary elections to stand for elections are part of election process-where the nomination exercise is flawed-whether such elections can be subsequently challenged by way of an election petition.

The applicants filed a constitutional reference by way of originating summons seeking a declaration that Kenya African National Union was not legally entitled to nominate H E Daniel Toroitich Arap Moi to be its presidential candidate in the General Elections scheduled for 29th December 1992 as he was disqualified by section 9 of the Constitution. It was argued for the applicants that as electors and registered voters, they were entitled to seek the intervention of the Court to prevent what they regarded as a violation of the Constitution because H E President Moi having previously held the office of President of Kenya for more than two terms was ineligible and disqualified from nomination for the same office.

The respondents applied to have the originating summons struck out on the grounds that they had no locus standi to commence the action, the application was bad in law, no violation of the Constitution or any law had occurred and that section 9 of the Constitution was not retrospective in its application.

Held:

1. Section 84(1) of the Constitution gave the High Court original jurisdiction to hear and determine applications made by a person who claims that any of his fundamental rights and freedoms guaranteed under sections 70-83 of the Constitution have been violated.

2. For a declaration to issue that the President be declared disqualified from being nominated as a presidential candidate, the application must be supported by evidence that the President does not comply with any of the conditions laid down in section 5(2) of the Constitution.

3. Whilst subsection (1) of section 10 of the Constitution provided that section 44 shall also apply to the hearing and determination of the validity of a presidential election, subsection (2) stipulates, without derogating from the provisions of section 44, that only one application shall be brought.

4. The President can thus be declared under the provisions of section 44 of the Constitution which have been made by section 10 (1) of the Constitution to apply to the President, not to have been validly elected for any number of reasons including his not being qualified to be nominated in the first place, for election as a President.

5. The National Assembly made mandatory provisions in section 19 of the National Assembly and Presidential Elections Act to the effect that such an application shall be by way of a petition subsequent to the presidential elections, to be tried by an Election Court consisting of three judges.

6. Preliminary elections such as nominations to stand for elections are part of the election process and as such, they could be challenged after the elections by way of an election petition.

7. Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Order LIII of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.

Application dismissed with costs.

Cases

1. Thande v Montgomery [1970] EA 341

2. Speaker of the National Assembly v Karume [1992] KLR 22

Statutes

1. Constitution of Kenya sections 5(2); 9; 10(2); 40; 44; 70; 71; 72; 73; 74; 75; 76; 77; 78; 79; 80; 81; 82; 83; 84(1).

2. Constitution of Kenya (Amendment) Act (No 2) 1991 (Constitution of Kenya Sub Leg)

3. National Assembly and Presidential Elections Act (cap 7) section 19.

Advocates

Mr Kariuki for the Applicants

Mr A B Shah for the Respondents

Locus standi – rate payers – whether a rate payer has sufficient interest to challenge in court the action of a public body whose expenses he contributes

Judicial Review – public authorities – whether public authorities are accountable to a court of law for the lawfulness of their action

Republic v Attorney General ex Parte Kariuki

High Court, at Nairobi November 26, 1992

Aluoch & Pall JJ

Miscellaneous Civil Case No 88 of 1991

Judicial Review - certiorari and mandamus - where a person alleges that his rights to natural justice have been breached – whether a person aggrieved by the refusal of the Attorney General to admit a foreign Advocate has locus standi to apply for judicial review.

Judicial Review – natural justice – whether the Attorney General can depart from the principles of Natural Justice in exercise of his discretion under s 11 (1) of the Advocates Act- whether the Attorney General should give reasons for exercise of his discretion.

Judicial Review – mandamus – to compel the Attorney General to admit a foreign advocate – whether the court can usurp the authority of the Attorney General to admit a foreign advocate.

Advocate – right to representation – foreign advocates – where a foreign advocate is admitted under section 11 (1) of the Advocates Act – whether a foreign advocate is covered within the definition of a legal representative under section 86 of their Constitution.

The applicant applied for an order of certiorari to remove into the High Court and quash the decision of the Attorney General of Kenya denying the applicant permission to bring a foreign advocate to appear for him in a treason case, and an order of mandamus to compel the Attorney General to complete his legal obligations under section 11 of the Advocates Act and grant permission for a foreign advocate to be admitted to lead the defence in the criminal case.

It was submitted for the defence that the refusal of the Attorney General was in breach of the rules of natural justice and the refusal was unreasonable, oppressive and as such null and void. The respondent argued that the applicant did not have a right which had been infringed on, the Attorney General had an absolute discretion to admit foreign advocates to practice as advocate.

Held:

1. The applicant has a right, the right or interest to require the Attorney General to exercise his discretion properly and according to law to determine whether or not to admit a foreign advocate to practice as an advocate in Kenya under s 11 (1) of the Advocates Act. If the foreign advocate is admitted under s 11 (1) of the Advocates Act, he becomes entitled to practice as an advocate in Kenya for the purpose of defending the applicant. Thus he is covered within the definition of a legal representative under section 86 of the Constitution.

2. A person aggrieved by the refusal of the Attorney General to admit a foreign advocate under s 11 (1) of the Act. The applicant has locus standi to apply for judicial review of the refusal.

3. It is not within the power of the Act to depart from the principles of natural justice when the discretion is being exercised by the Attorney General under section 11 (1) of the Advocates Act.

4. It is tantamount to arbitrary exercise of the discretion on the part of the Attorney General to exercise his discretion without giving any reason, owing to the severity of the offence and the complexity of issues involved, the Attorney General should have given his reason for the refusal.

5. As the Attorney General is the only person according to the Act who can admit a foreign advocate under section 11 (1) to practice as an advocate the Court cannot usurp his authority and cannot admit a foreign advocate.

Application allowed.

Cases

1. Onyango v Attorney General [1987] KLR 711

2. Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255; [1976] 2 All ER 865

3. Attorney General v Ryan [1980] AC 718

4. Council of Civil Service Unions and others v Minister for Civil Service [1984] 3 All ER 935; [1984] 3 WLR 1174; [1985] AC 374

5. Shah v Attorney General [1970] EA 543

6. Republic v Moss (1982) 29 SASR 385

7. Queen v City of Whyalla exparte Kittel & Others (1979) 20 SASR 386

8. Attorney-General v Bastow [1957] 1 All ER 497; [1957] 2 WLR 340; [1957] I QB 514

9. Nehemia Gotonga (Chief) v Stephen Kinyanjui [1959] EA 1076

10. Franklin v Minister of Town and Country Planning [1947] 2 All ER 289; [1948] AC 87

11. Wednesbury Corporation & 2 others v Ministry of Housing and Local Government [1966] 2QB 275

12. Armah v Government of Ghana [1968] AC 192

13. Mwau v Principal Immigration Officer [1985] KLR 72

Texts

1.De Smith, SA et al (Eds) (1968) Judicial Review of Administritive Action London: Sweet & Maxwell 2nd Edn

2. Hailsham, Lord, et al,(Eds) (1975) Halsbury’s Laws of England London: Butterworths & Co Ltd 4th Edn Vol 1 para 76

Statutes

1. Advocates Act (cap 16) sections 10, 11

2. Penal Code (cap 63) section 40

3. Constitution of Kenya sections 77(1), (2); 86

4. Fugitive Offenders Act, 1881 [UK]

Advocates

Ms Martha Njoka for the Applicant

Mr Ole Keiwua for the Attorney General

Robert letapin Ole Kidotu v Stephen Muiruri

High Court, at Nairobi November 24, 1992

Mbito J

Civil Suit No 3086 of 1989

Execution – purpose of execution proceedings – where execution has already commenced – where the title of the goods to be attached passes on to a party who has knowledge of the attachment – whether such a party acquires good title – whether stay of sale of the goods can be ordered.

The objector sought the release of a motor vehicle attached at the instance of the plaintiff for a debt owed by the defendant who is the husband of the objector. She contented that she was the registered owner of the motor vehicle and produced a log-book. It was submitted for the objector that by the date of attachment which was 5/8/92 the vehicle had become the property of the objector from 18/4/92. It was argued for the decree holder that the transfer was fraudulent as at the time it was done execution was in progress.

Held:

1. The goods of a judgment debtor are deemed to be under attachment as from the time the warrant is delivered to the court broker until the execution is completed and any alienation in the meantime is declared invalid unless the purchaser at the time he acquired title was unaware of such warrant which was unsatisfied.

2. The objector must have been aware of the attachment and the application for stay of execution, therefore she could not acquire a good title while the attachment remained unsatisfied.

Cases

No cases referred to.

Statutes

Sale of Goods Act (cap 31) section 27

Advocates

Mr Keyonzo for the Plaintiff

Mr Iseme for the Defendant

Leonard Soloo Ringos  v Republic

High Court, at Nairobi November 18, 1992

Oguk J

Criminal Appeal No 1428 of 1990

(From original conviction and sentence in Criminal Case No 1685 of 1986  of the Senior Resident Magistrate’s Court at Nakuru: O G Githinji: Esq)

Criminal Law – stealing – offence of – contrary to section 275 of the Penal Code – accomplice evidence – whether it’s safe to convict on uncorroborated evidence of an accomplice.

The appellant was convicted after trial by the learned Senior Resident Magistrate, Nakuru on 5 counts of offence of stealing contrary to section 275 of the Penal Code. He was sentenced to serve 9 months imprisonment in respect of each count.

The case for the prosecution was that, the appellant a postal clerk at Quary Road Post office, Nairobi and one John Bosco Kimani, who had savings account No NAI /9860 and another postal clerk stole money from this account. It is alleged that Kimani purported to have deposited money in this account which was reflected in the passbook whereas in the actual fact, there was no deposit made. He had irregular withdrawals and by the time it was discovered he had overdrawn the account to the tune of Kshs 7864/27. The accused used the stamp of one Gladwin in Gathigia to effect the payment.

The appellant denied effecting the payments, and even when his specimen writings were taken for examination by document examiner, he was found not to have been involved in the payments. But the appellant was nevertheless found guilty and convicted on the evidence of his colleagues at work one Lydia Misumi, who prepared the list reflecting the payment made to the 1st accused, and, Gladwin Githigia on whose counter the stamp was used on the rest of the payments.

Held:

1. PW6 and PW7 were clearly accomplices in the case. Generally the uncorroborated evidence of the accomplice should be held to be untrustworthy.

2. The Court below failed to make specific finding that PW6 and PW7, inspite of their involvement or role in the crime were creditworthy. It followed therefore that in the absence of corroboration of their testimony,  the conviction of the appellants on such evidence was unsafe.

Appeal upheld.

Cases

1. Rex v Baskerville (1916) 2KB 658

2. Murungi Njau v R [1929] KLR 257

3. Emperor v Maganlal [1889] 14 BOM 115

Statutes

1. Penal Code (cap 63) section 275

2. Evidence Act (cap 80) section 141

Jaramogi Oginga Odinga & 3 others v Zachariah Richard Chesoni & another

High Court, at Nairobi November 13, 1992

Abdullah, Githinji & Mwera JJ

Miscellaneous Civil Application No 602 of 1992

Civil Practice and Procedure – appearance- government proceedings – Whether the Attorney General can appear in a suit on behalf of the Electoral Commission where the Commission is a party.

Jurisdiction – High Court – jurisdiction over constitutional matters – where a party invokes section 60 of the Constitution – whether section 60 creates a course of action for a party – provision of section 60 and 123(8) of the Constitution.

Jurisdiction – High Court – where there is a dispute concerning the composition of the Electoral Commission- whether the High Court can declare any Commission member unfit and unqualified to hold their position – provision of section 41 (1), (3), (5) and (6) of the Constitution.

Election Law- powers of the court- composition of the Electoral Commission – whether the High Court can declare a member unfit and unqualified.

Civil Practice and Procedure – locus standi – consideration by court – determination of what interest amounts to special interest which has been prejudiced.

Election Law- voter – where a voter is aggrieved before and after elections – procedure which such an aggrieved voter can seek recourse to for redress – whether another individual can seek such redress for and on behalf of other voters.

Election Law – voter – locus standi – the right of a voter to appear before the court when aggrieved before and after elections

By an originating motion the applicants came to court asking for declarations and orders on eleven grounds against the 1st respondent and the 2nd respondent. They sought orders that the 1st respondent was unfit and unqualified to head the Electoral Commission, the voter registration exercise which was going on then was null and void therefore they beseeched the Court to restrain the first respondent from acting as the Electoral Commission Chairman, an order to stop the voter registration and the voters cards which had been issued to be destroyed.

The respondents varied preliminary points on law that; there was non-joinder of the Electoral Commission, the form and procedure adopted by the applicants in bringing the application was fatal; the applicants did not have a cause of action and finally, did not have locus standi to commence the action.

Held:

1. The Electoral Commission should be considered in the same class as the Public Service Commission on whose behalf the Attorney General appeares in court when it is sued.

2. Where no mode of coming to Court is provided for yet one has a cause of action the originating motion may be used. In fact the party suing will choose the mode. If it is found unsuitable a proper one will have to be adopted so that justice is done to the parties.

3. Section 60 of the Constitution of Kenya does not create courses of action or courses to follow. Section 123(8) gives the Court power to review actions of persons or authorities given duties and functions they should execute without control and direction from any source. The Court is mandated to determine questions arising from whether such authority or body has exercised such functions according to the legal provisions applicable.

4. Under section 41(1) of the Constitution, the Electoral Commission is established with its chairman plus the members. This is a presidential prerogative. The qualifications for an electoral commission members are set out in section 41(3). The manner to remove a commission member is by a presidential tribunal appointed under section 41 and (6) reasons for removal fall in (5). There is no room for the court to declare any electoral commission member “unfit and disqualified” therefore removing him from the Electoral Commission. That is how the Legislature intended it to be and the Court cannot arrogate itself the duty on any thing regarding the removal of electoral commission members.

5. It is trite law that a party coming to Court for redress should have a genuine interest known to law which has been or is likely to be prejudiced.

6. The law is clear that a voter who is aggrieved before and after the elections can come to Court. During voter registration, any aggrieved person who feels that there is any irregularity likely to affect his right to vote can go to the local registration officer and then to the subordinate court for redress. It does not allow for some busybody to raise a complaint on behalf of others in this respect. After elections, if one is aggrieved about the results he can go to the subordinate court for local authority elections by way of an application. Or he can move the High Court by filing a petition. The aggrieved party has the ground on which he stands to be heard. There is no ground on which an individual can stand before the court in the voter registration claiming to do so on behalf of the public who are described as millions of Kenyans.

7. Even a person who can demonstrate a special interest he thinks entitles him to a declaration or relief. The Court must be satisfied, not only that the interest exists but also that it has been prejudiced. It has been prejudiced and therefore the litigant is entitled to a relief from the Court he has approached.

Cases

1. Murithi v Attorney General [1983] KLR 1

2. Boyes v Gathure [1969] EA 385

3. E v E [1970] EA 604

4. St Benoist Plantation Ltd v Felix (1956) 21EACA 105

5. Masaba v Republic [1967] EA 488

6. Republic v Thames Magistrates Court ex parte Greenbawn (1957) 55 LGR 129

7. Republic v Paddington Valuation Officer Ex Parte Peachy Property Corporation Ltd [1966] 1QB 380; [1965] 2 ALL ER 836 [1965] 3 KLR 426

Texts

Denning, AT (Ed) (1979) The Discipline of Law London: Butterworths & Co Ltd p 115

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order I rule 9, order L rule 1

2. Government Proceedings Act (cap 40) sections 12(1); 13 A; 16 (1) (i)

3. Constitution of Kenya sections 41(1), (3), (5), (6); 60; 67; 70; 71; 72; 73; 74; 75; 76; 77; 78; 79; 80; 81; 82; 83; 84; 123

4. Mohammedan Marriage, Divorce and Succession Act (cap 156)

5. Companies Ordinance, 1984 [UK] section 136

6. Civil Procedure Act (cap 21) sections 61, 62

7. National Assembly and Presidential Elections Act (cap 7)

Advocates

Mr M’Inoti for the Applicants

Mr Ransley and Miss Jan Mohamed for the 1st Respondent

Mr Keiuwa for the Attorney General

John Kinyanjui & another v Attorney General & another

High Court, at Nairobi November 4, 1992

Mwera J

Civil Case No 3502 of 1990

Negligence - contributory negligence - where an infant aged 7 years old jumps from moving vehicle and suffers injuries - whether the infant can be deemed to have contributed to his misfortune - whether a minor aged 7 years is expected to realise the risk he exposed himself to.

The plaintiff sued on behalf of his infant son aged 7 years old. The infant was a passenger on a lorry having aided the defendant to load it with desks and later while the lorry was being driven away fell from the moving lorry. Evidence showed that the minor attempted to jump from the vehicle which was over speeding and suffered loss and damage.

Held:

1. Despite the age of the plaintiff he was expected to realise the risk he exposed himself to by jumping from a moving vehicle, hence liability is awarded at the rate of 80:20 between the plaintiffs and defendants respectively.

Cases

1. Seka, Monique v Kasira & another High Court Civil Case No 2098 of 1978

2. Okello, John v Otieno & another High Court Civil Case No 109 of 1983

3. Tayab v Kinanu [1983] KLR 114

4. Butt v Khan [1981] KLR 349

5. Olesa, Hadija v Hakai & another High Court Civil Case No 1870 of 1984

Statutes

Criminal Procedure Code (cap 75) section 210

Republic v Jonah Orao Anguka

High Court, at Nairobi October 28, 1992

Abdullah J

Criminal Case No 41 of 1992

Advocate – qualification of advocate - disqualification of an advocate to represent a client – whether the Court has power to bar an advocate from representing a client.

Jurisdiction – discretionary/inherent jurisdiction of the court – consideration by the Court – source of inherent or discretionary jurisdiction of the court.

Jurisdiction – High Court - unlimited original jurisdiction of the High Court – exercise of such jurisdiction by the Court – whether such jurisdiction is limited.

Criminal Practice and Procedure – prosecution – whether a police officer who has investigated a case is forbidden from prosecuting the case.

Criminal Practice and Procedure – prosecution – procedure where a prosecution counsel should be summoned as a witness by the defence – consideration by Court.

Counsel for the accused applied to Court to disqualify or bar the learned Deputy Public Prosecutor from prosecuting the above case on the grounds that, the prosecutor had adopted a certain stand at early stage as to the cause of death; he had assumed investigative role at the Ouko Commission of Inquiry and the defence intended to call him as a witness. The defence argued that the continued presence of the prosecutor was legally and actually not permissible; ethically forbidden, oppressive and likely to cause prejudice to the accused; against the Principles of Natural Justice and will not afford a fair hearing thereby contravening section 77(1) of the Constitution.

The respondents argued that section 60(1) of the Constitution did not grant such inherent jurisdiction to exercise the power and grant the orders sought. It was further submitted that: the role of the Commission was not investigatory; the prosecutor did not interview witnesses; his role was not pivotal in the Commission; he was not a cardinal investigator and did not combine the functions of counsel assisting the Commission with those of the Deputy Public Prosecutor.

Held:

1. The right of an officer of the court duly qualified and competent, to appear and present the case of his client to the Court, is prima facie unfettered and unchallenged. There is nothing in the written laws of this Country which empowers the High Court to disqualify a duly qualified advocate to appear and conduct a case unless it be a matter arising or incidental to having committed contempt of court. Even where it is partially clear that the interest of the advocate is in conflict with his client, it is doubtful that the Court may order disqualification, though such conflict may be pointed out and commented and then left to good sense of such advocate to withdraw from representing the client.

2. In so far as Kenyan Courts are concerned with regard to discretionary and inherent powers, they are creatures of the of the Constitution and it cannot be said that the inherent powers of the Courts are derived from vacuum or breast of judges. These powers must appear to emanate from statute. In this case the Constitution.

3. S 60(1) of the Constitution not only establishes the High Court with unlimited original jurisdiction. Such unlimited jurisdiction is not limited or restricted by the closing words “and such other jurisdictions …” It is ejusdem generis and does not for inherent powers to be exercised have to look elsewhere. True, such unlimited powers cannot be exercised arbitrarily but must be exercised with judicial restraint in a case where there is no known power or remedy to prevent occurrence of injustice or abuse of process. Such powers ought to be used sparingly and in a situation where ends of justice may be defeated by failing to exercise the same.

4. In Uganda there is no express provision of law which forbids a police officer from prosecuting a case which he has investigated and a trial is not ipso facto invalidated if the investigating officer gives evidence. Similarly, there is no such express provision of law in Kenya.

5. If a prosecuting counsel has important piece of evidence to give on behalf of the prosecution, he is expected to know what such evidence is and to judge for himself that there is a good reason to return the brief. In a case where the defence intends to call the prosecuting counsel as a witness to give important piece of evidence then it becomes the duty of the defence to indicate to such counsel at the earliest possible opportunity the nature and importance of such evidence in order for such counsel to decide whether it is prudent and there are good reasons to return the brief. Merely to summon a prosecuting counsel as a defence witness at the eleventh hour without indicating to him the nature of evidence which he has and which he is expected to give is not sufficient to disbar such counsel from the case.

6. Counsel entrusted with the public task of prosecuting accused persons should realise that one of the primary duties is to be absolutely fair.

Application dismissed.

Cases

1. Connelly v DPP [1964] 2 All ER 401; [1964] AC 1254; 48 Cr App Rep 183

2. Githunguri v Republic [1985] KLR 91

3. Bukenya & others v Uganda [1972] EA 549

4. Gamaliere Mubito v R [1961] EA 244

5. Reginald Arthur Wadley (1934 - 36) 25 Cr App R 104

6. Alec Bennet Sugarman (1934 - 36) 25 Cr App R 109

Texts

1. Boulton, WW (1961) A Guide to Conduct and Etiquette at the Bar London: Butterworths and Co Ltd 3rd Edn p31

2. Mitra, B B et al (Eds) (1963) The Code of Criminal Procedure Calculta: Kamal Law House 14th Edn p33

3. Napley, D (1991) The Technique of Persuasion London: Sweet and Maxwell, 4th Edn p79

4. Hilbery, J (1946) Duty and Art in Advocacy London: Steven and Sons Ltd p8

Statutes

1. Constitution of Kenya sections 26(2); 60(1); 77(1)

2. Commissions of Inquiry Act (cap 102) sections 3, 4(1);

3. Criminal Procedure Code [India] sections 4, 495(4)

4. Criminal Procedure Code (cap 75) section 252

5. Police Act (cap 84)

6. Interpretation and General Provisions Act (cap 2)

Advocates

Mr Chunga for the State

Mr Bowry for the Accused