Right to Fair Trial Includes Right to Have the Trial Begin and Conclude Without Unreasonable Delay

Reported by Nelson K. Tunoi

Issues for determination:

i. Whether the application for judicial review orders of certiorari and prohibition was statute-barred.

ii. Whether the decision of the 2nd respondent terminating the plea bargain application between himself and the applicant was amenable to judicial review by way of an order of certiorari.

iii. Whether the conduct, attention and management of the various criminal cases against the applicant by the 1st and 2nd respondents met the established constitutional threshold for the treatment of an accused person, as to disentitle the applicant from the orders of judicial review sought.

iv. Whether the applicant’s constitutional rights to fair trial and in particular a trial within a reasonable time as guaranteed by the Constitution of Kenya, 2010 was violated to merit redress from the High Court in terms of the prohibition orders sought.

Judicial review-certiorari and prohibition-application for judicial review orders of prohibition against the respondents from prosecuting or continuing to prosecute the applicant-whether the judicial review application was statute barred-whether the decision of the 2nd respondent terminating plea bargain application between himself and the applicant was amenable to judicial review by way of an order of certiorari-validity of the application-Civil Procedure Rules (cap 21 Sub Leg) Order 53 Rules 3 (1), 4 (1) & 7 (2)

Constitutional law-fundamental rights and freedoms-right to fair trial-whether the applicant’s constitutional rights to fair trial and in particular a trial within a reasonable time as guaranteed by the Constitution of Kenya, 2010 was violated to merit redress from the High Court in terms of the prohibition orders sought-Constitution of Kenya, 2010, articles 50 (2) (e), 157

Constitutional law-powers of the Director of Public Prosecutions-statutory obligations bestowed upon the Director of Public Prosecutions under of the Criminal Procedure Code as far as plea agreements relate-whether the Director of Public Prosecutions in rejecting the plea request by the applicant, acted within his constitutional and statutory mandate-Constitution of Kenya, 2010 article 157; Criminal Procedure Code (cap 75) section 137

Brief Facts:

The applicant was one of the two shareholders in Goldenberg International Limited, a company incorporated in July 1990. The company was engaged in the exportation of gold and diamond jewelry under the Local Manufacturers (Export Compensation) Act (cap 482) scheme which provided for the payment by the Customs and Excise Department of 20% export compensation to eligible exporters on the value of goods exported. The applicant’s company applied for and was granted an additional 15% payment on its exports of gold and diamond jewelry which was paid from Treasury and treated as customs refund. In the course of implementation of the Export Compensation Scheme, the applicant and his companies Goldenberg International Limited and Exchange Bank Limited were paid export compensation of Kshs. 5.8 billion. Later this payment by Treasury was said to be illegal and fraudulent leading to abolition of the Export Compensation Scheme.

Several criminal cases were instituted against the applicant but most of the cases were brought to a standstill due to administrative transfers and promotions in the judiciary and other related institutions at the time. The 1^st respondent attempted to enter a nolle prosequi, the rationale being to enable the Goldenberg Commission of Inquiry (Bosire Commission) to sit and hear evidence on the Goldenberg affair without flouting the sub-judice rule. The then presiding Chief Magistrate declined to accept the nolle prosequi and referred the matter to the High Court as a Constitutional Reference. The Goldenberg inquiry took three years to complete and after the publication of its findings, the 1^st respondent preferred fresh charges against the applicant. Pursuant to this, the applicant requested to enter into a plea agreement with the 1^st respondent for the withdrawal of the charges leveled against him arising from the Goldenberg affair. The 1^st respondent informed the applicant of that he should submit specific proposals for settlement and give full disclosure on the Goldenberg affair. The applicant obliged with the conditions but the plea bargain agreement was declined by the 2^nd respondent.

The applicant filed an application for judicial review seeking order of certiorari to quash the remarks, decision and findings of the 2^nd respondent in declining the plea bargain offer by the applicant. The application also sought for orders of prohibition against the 1^st, 2^nd 3^rd and 4^th respondent from prosecuting the applicant and his associated companies including Goldenberg International Limited in any other matter relating to the Goldenberg affair of the Bosire Commission Report. The main grounds of the applicant’s application included alleged dereliction of duty and abuse of office on the part of the 1^st respondent; bad faith on the part of the 2^nd respondent; errors of fact; breach of the right to a fair trial and protection of the law; breach of the right to trial within a reasonable time; frustration of legislative purpose; unfairness, arbitrariness, inconsistency and capriciousness; illegal exercise of discretion; violation of the principle of legitimate expectation and natural justice; violation of the principle of proportionality; violation of the principle of equality of arms, unreasonableness and breach of fundamental rights and freedoms of the person including the right to a fair trial and the right to trial within a reasonable time.

Held:

1. The application for judicial review by the applicant was made within the requisite 6 months period and therefore the court had jurisdiction to hear and determine the application.

2.  Although the applicant had advanced compelling grounds for purposes of his plea bargain application, such grounds were not, in the context of judicial review proceedings, considerations that a court of law would hold against the 2nd respondent, to the extent that his decision on whether or not to accept the plea offer was concerned. What suffices is that the 2nd respondent, in rejecting the plea request, acted within his constitutional and statutory mandate, even if the ensuing decision was absurd in the light of the grounds advanced.

3. As far as plea agreements relate, the 2nd Respondent had conformed with the statutory obligations bestowed upon him under Section 137 of the Criminal Procedure Code. Therefore the judicial review court could not fault the conclusion reached by the 2nd Respondent and needed only to satisfy itself that he did comply with the statutory steps set out for plea bargaining.

4.  Instructively, article 25 (c) of the Constitution lists the right to a fair trial as one of the fundamental rights and fundamental freedoms that shall not be limited despite any other provision in the Constitution. In effect, the right to a fair trial is sanctified and insulated from derogation even under other provisions of the Constitution itself.

5.  The right to fair trial under article 50 (2) (e) of the Constitution of Kenya, 2010 is not limited to the commencement of the trial but also applies to the conclusion thereof. The applicant in this case had been charged with diverse offences since year 1993, none of which have ever been concluded. Notwithstanding the convoluted history of the charges brought against the applicant and others, being placed at a considerable and grave risk to freedom for nearly the past two decades is by any standards astounding. Being placed at such risk for an indeterminable period of time with no end in sight must leave the conscience of the drafters of the Constitution shattered. This was not the treatment the Constitution contemplated for any accused person, irrespective of their status in society. Criminal trials should be commenced and concluded within a reasonable time.  

6.  The observations made by the “Bosire Commission” in their report impaired the applicant’s presumption of innocence in that the Commission had concluded that the applicant was guilty of the offences of fraud, forgery and theft stated identified in the Commission’s report. Only through abundance of caution did the Commission leave it to the Attorney General to place the last nail on a sealed fate as regards the applicant’s guilt.

7.  It is a matter of public notoriety that the applicant has had to contend with adverse and intrusive media coverage in nearly all aspects of his life of which his court battles top the agenda. Therefore the publication of the press statement dated 15th March 2006 had the potential to impair the applicant’s presumption of innocence, which is protected under the Constitution. 

8.  As regards the publicity surrounding the publication of the Bosire Report, the adverse impact of the press releases by the 1st Respondent applied in equal measure. Further, to the extent that the criminal prosecution was commenced on the basis of the recommendations of the Bosire Report in spite of the findings and recommendations of the Bosire Report having found to be flawed in the Saitoti and Kotut cases, such prosecution was a scornful of the presumption of innocence. This position was not helped by the fact that the 1st Respondent commenced prosecution without further investigations as recommended by the Commission.

9.  The argument that delay does not per se constitute a ground for finding a violation of the right to fair trial withers in the face of the Constitution which explicitly provides that an accused person must be accorded a fair trial without delay. No exception is made by the Constitution on this requirement. The reality is that unless trial begins and concludes without unreasonable delay, an accused person’s constitutional rights are violated not only because of the delay but also because of other incidental consequences of delay such as loss of memory of witnesses, witnesses falling by the wayside in one way or another, and loss of documents among other pertinent considerations.

10.  The law does not impose time limitation for the prosecution of offences except where a limitation is imposed by statute. Thus, the 2nd respondent should remain at liberty to prosecute, provided however that in doing so, he meets due compliance with the rights conferred on an accused person by the Constitution.

11. The Bosire Report itself recommended that fresh investigations before the applicant and other named persons could be charged with the criminal charges contested. This was never done. Therefore, no new evidence was relied upon as a basis for the fresh criminal charges preferred against the applicant in May 2006.

12. To lay fresh charges against the applicant and others after passage of more than fourteen (14) years after the events occurred was inordinate delay. Further, failing to conclude a criminal case after the passage of more than twenty (20) years with the applicant having the noose hanging over his neck by the State can in no manner whatsoever be a reasonable time. Neither the 1st nor 2nd respondents had offered any explanation or any reasonable explanation to the inordinate delay in taking any action or in concluding this or any other case against the Applicant and others.

13.  Adverse media publicity may negatively impact upon the rights of an accused person, particularly where the reporting extends to opinions that amount to pre-judging the applicant’s guilt (“trial by press”). The Kenyan jurisdiction is replete with skewed media reporting of court proceedings, which at times defies the sub-judice rule.

14.  It is within public domain that the applicant’s protracted court battles have consistently attracted immense media interest and publicity, at times fair, at times negative, at times intrusive and at times skewed. However, at the end of the day, where media publicity is seen as carrying the potential to infringe upon any right of an accused person, it should be for the trial court to intervene and set parameters of reporting that respect such rights. For the present purposes, the court is however unable to give much weight to past media publicity as a basis for the grant of the orders sought.

15.  The role of the court in cases such as the present application is carve out a balance between the need for persons who have committed crimes to be prosecuted and made to account for their acts or omissions as by law prescribed and in the public interest while at the same time ensuring that justice is administered in a manner that accords with the same law and indeed respects the public interest in having justice dispensed fairly. This is what is now known in international criminal justice system as the concept of proportionality.

16.  The applicant’s and the interested party’s fundamental rights and freedoms guaranteed by the Constitution have been violated by the State in several respects and on this ground and only on this ground, the court issues prohibitory orders against the State, effectively bringing to an end any current or future criminal proceedings against the applicant and the interested party (Mr. Bii) arising from or in any way connected to the Goldenberg affair or Bosire Report.

17.  Both the 1st and the 2nd respondents in their respective conduct of the criminal cases involving the applicant and his co-accused have failed to meet the constitutional thresholds for a fair trial as well as the principle of equality of arms. This, without more, renders further prosecution of the cases unconstitutional.

18.  The protection of a person accused of any criminal conduct as afforded by the Constitution of Kenya must be observed. All persons in Kenya whether innocent or guilty are equal before the law. All persons in Kenya are entitled to the protection of the law. Any person charged with any criminal offence must be reassured by the prosecuting authority and the State that their prosecution would be conducted in strict compliance with the Constitution. This court has the jurisdiction and authority without fear or favour to prohibit any conduct that goes against the Constitution, be it by an individual, the State or any other body.

19.  The court has found in favour of the independence of the 2nd respondent in relation to the institution, control and termination of prosecution, including plea bargaining, as mandated under article 157 of the Constitution and section 137 of the Criminal Procedure Code. The finding however does not absolve the 2nd respondent from adherence with the Bill of Rights as relates to the rights of an accused person.

20.  (Obiter per Mutava, J.) “The discharge of a judge’s constitutional mandate is never easy. It is not meant for the faint-hearted. Any reaction arising from a decision made by a judge should be seen as one of the many vagaries of the calling, as long as the judge’s appreciation of the law and facts, his analysis and conclusions and, above all, the judge’s conscience, remain sanctified.”

Application allowed in terms of prayer 2 and 4. Orders granted do issue to the interested party in so far as they relate to him. Each party to bear their own costs.

PLEADINGS- APPLICATION TO SET ASIDE AN ARBITRATION AWARD

Reported by Njeri Githang'a

Issue

1. Whether a Chamber Summons application to set aside an arbitration award can be termed as a pleading capable of being struck out

Civil Practice and Procedure-pleadings-nature of pleadings –application for setting aside an arbitral award-whether a Chamber Summons application to set aside an arbitration award can be termed as a pleading capable of being struck out -Civil Procedure Rules, Order 2 Rule 15 

Held:

1. Pleading includes a petition or summons, and the statements in writing of the claim or demand of any plaintiff and of defence of any defendant thereto, and of the reply of the Plaintiff to any defence or counterclaim of a defendant.
2. Chamber Summons application seeking to set aside an arbitration award does not answer to the definition of “pleading”. The application is neither a Plaint nor a Defence and neither is it a reply to either. Such an application cannot therefore be considered for striking out under any of the grounds stipulated in Order 2 Rule 15 of the Civil Procedure Rules.

Preliminary Objection allowed

Reported by Sylvie Nyamunga

Issue

Whether the clause in restraint of trade placed in the contract of services executed between the parties is legal and constitutional.

Constitutional law- fundamental rights and freedoms-right to fair labour practices – whether a restrictive covenant is contrary to public policy- whether the covenant impedes upon a person’s right to earn a living-Article 41 of the Constitution of Kenya, 2010.

Employment law-restrictive covenant- constitutionality of restrictive covenants-test for enforcement of a restrictive covenant-Section 2 of the Contracts of Restraint of Trade Act Cap 24 laws of Kenya


Held

1.  A restraint clause would be unconstitutional if that restraint does not meet the limitations imposed under Section 2 of the Contracts of Restraint of Trade Act aforesaid. Article 24 of the Employment Contract fairly captures the elements contemplated in Section 2 of the Act and would, on the face of it not be unconstitutional.

2.  The test that courts have laid down with regard to enforcement of a restrictive covenant is the question whether such clause is reasonable

3.  Enforcing such a clause would not be in the interest of justice for two reasons, namely, the damage, if any, which was bound to be inflicted upon the Plaintiff by the Defendant’s employ in a competitor company, has by now been substantially suffered as it has been now seven months since the Defendant left employment with the Plaintiff. Secondly, the effect of the restraint would be to remove the Defendant from employment for a period of only 5 months without any guarantee that he will be re-employed once the 12-month contractual hiatus elapses.

4.   In a country like Kenya where unemployment is soaring every single day, subjecting the Defendant to loss of employment on the basis of the restrictive clause would be unreasonable and not in the interest of either party. Indeed such action would be contrary to public policy as courts should not be seen to be unduly impeding upon a person’s right to earn a living.

Notice of Motion dismissed with costs to the Respondent