Stanley Munga Githunguri v Republic

High Court, at Nairobi

July 11, 1985

Simpson CJ, Sachdeva & Mbaya JJ

 In the Matter of the Constitution of the Republic of Kenya

Miscellaneous Criminal Application No 180 of 1985

 Criminal Practice and Procedure – powers of a trial court - power to disallow abuse of court process - power to disallow a prosecution which is an abuse of court process – court in which such power is vested – whether the subordinate court is vested with such power.

Attorney-General – powers of – power to institute and undertake criminal proceedings – how such power exercised – whether High Court has inherent power to supervise exercise of such power – accused investigated for offence - accused informed by Attorney General that he would not be prosecuted – accused’s property under investigation restored to him – accused charged with offence five years after Attorney-General’s decision – whether accused’s prosecution vexatious, abuse of court process and contrary to public policy – right of an accused to fair treatment and protection from misuse of the court process - Constitution of Kenya section 26.

The applicant was charged in a subordinate court with four counts of offences under the Exchange Control Act (cap 113) which were alleged to have been committed in 1976 and 1979. The applicant’s advocate stated to the trial court that the charges against the applicant had been the subject of a police investigation six years earlier which resulted in the office of the Attorney-General deciding not to prosecute, a decision which the office had officially communicated to the applicant and certain money which was the subject of the investigations had been restored to him. The advocate stated further that this position prevailed through the terms of two Attorneys-General and was reiterated in parliament by one of the successive holders of that office.

The applicant’s advocate made a preliminary application under section 67(1) of the Constitution for the reference to the High Court of the issue of whether the Attorney-General’s office had properly exercised its power under section 26 of the Constitution in reviving the charges against the applicant. The trial court allowed the application and referred the issue to the High Court. In the High Court, the respondent’s counsel raised a preliminary objection seeking to strike out four of the five questions framed by the applicant’s advocate for the interpretation of the Court on the ground that the questions were outside the Court’s Constitutional function.

Held:

1. Notwithstanding the powers conferred upon the Attorney-General by section 26(3) of the Constitution, the High Court has an inherent power and duty to secure fair treatment for all persons who are brought before it or a subordinate court and to prevent an abuse of the process of the court.
2. In Kenya, subordinate courts have no inherent power or discretion to refuse to hear a criminal case prosecuted by the Attorney-General or his representative on the ground that it is an abuse of the process of the court.
3. It was mandatory for the trial magistrate to refer to the High Court the questions framed by the applicant and if the respondent’s counsel objected to any of them, he should have raised that objection in the subordinate court.
4. The Attorney-General is given an unfettered discretion to institute and undertake criminal proceedings by section 26 of the Constitution but this discretion should be exercised in a judicious way. It should not be exercised arbitrarily, oppressively or contrary to public policy.
5. It is proper for the office of the Attorney-General to institute criminal proceedings charging a person with offences allegedly committed over nine years earlier even if this is done after that office had upon a full inquiry decided not to prosecute but to close the relevant file.
6. The right of the Attorney-General’s office to change its decision not to prosecute a person may be lost if the accused has been publicly informed that he will not be prosecuted and his property which was seized in investigating the alleged offence has been restored to him. The accused person may have destroyed or lost his evidence as a consequence of being led to believe that there would be no prosecution.
7. The preferment of a charge against any person nine years after the alleged commission of the offence, six years after a full inquiry in respect of it and five years after the decision of the office of the Attorney- General not to prosecute and to close the file is vexatious, harassing, an abuse of the process of the court and contrary to public policy unless a good and valid reason exists for doing so, such as the discovery of important and credible evidence or the return from abroad of the person concerned.
8. In the circumstances of this case, to institute the proceedings against the applicant at the time was vexatious and an abuse of the process of the court.

Respondent’s preliminary objection dismissed, trial magistrate at liberty to proceed with trial unless the Attorney-General terminates the proceedings or the accused applies for a prerogative order.

Cases

1. R v Brentford Justices, ex parte Wong [1981] 1 All ER 884; (1981) 73 Cr App R 200
2. Connelly v DPP [1964] 2 All ER 401; [1964] 2 WLR 1145
3. DPP v Humphrys [1976] 2 All ER 497; [1977] AC 1; (1976) 63 Cr App R 95
4. R v Grays Justices, Ex parte Graham [1982] 3 All ER 653; [1982] QB 1239; [1982] 3 WLR 596

Texts

1. Dickens, B. M. “Control of Prosecutions in the United Kingdom” Comparative Law Quarterly 22 (1973) p 11
2. Jones, E. “The Office of the Attorney-General” Cambridge Law Journal 27 (1969) p 49
3. Williams, G. “Discretion in Prosecuting” Criminal Law Review (1959) p 222

 Statutes

1. Constitution of Kenya sections 26(1), (2), (3), (4), (5), (6), (7), (8); 67(1)
2. Exchange Control Act (cap 113)
3. Criminal Procedure Code (cap 75)

Advocates

1. Messrs B Georgiadis, AA Lakha & O Opiyo for the Applicant
2. B Chunga, Assistant Deputy Public Prosecutor, for the Respondent

Editorial Note

As the Attorney-General failed hereafter to terminate the case against the applicant, he (the applicant) filed a further application in the High Court for a prerogative order. This application is reported in [1986] KLR 1.

Land – contract for sale of – whether contract conferring interest in land – whether prospective purchaser a person entitled to redeem mortgage over land – Transfer of Property Act, 1882 sections54; 83; 91(a),(b). Mortgage – redemption of – persons ent

Republic v The Commissioner of Prisons Ex Parte Wachira

High Court, at Nairobi  

April 24, 1984

Simpson CJ

Miscellaneous Civil Case No 60 of 1984

Constitutional law - detention – without trial – arrest before detention – when detention commences – requirement of the detention order.

Constitutional law - detention – without trial – requirement for statement of the grounds for detention – sufficiency of detail of grounds - whether insufficiency invalidates the detention order – remedy for insufficiency – object and purpose of the statement of grounds – scope of grounds – whether requirement is mandatory or directory.

Constitutional law – detention – without trial – requirement for subsidiary legislation to be laid before parliament – prescribed period of twenty days – failure to comply with the said period – effect of – on detention order - prorogation of parliament when legislation was pending before it - effect of – fate of detention orders – whether they became null and void – fate of legislation when parliament is prorogued.

Parliament – prorogation of – effect of – upon business pending before it – whether the statutory period within which parliament ought to act run during recess.

The four applicants were detained under regulation 6 of the Public Security (Detained and Restricted) Regulations. An application for a writ of habeas corpus and subjiciendum was made on the grounds that the detainees were not served within the requisite period, that the grounds were insufficient and that the subsidiary legislation was not properly laid before the National Assembly in accordance with the provisions of section 6(1) of the Preservation of Public Security Act (cap 57).

Held:

1. An arrest and placement into custody of a person before the date of the detention order is not detention.

2. Normally a person is arrested in the course of police enquiries on suspicion, which once confirmed a report may be made to the Minister who will issue a detention order. The detention order will be served upon the person while in custody and it is only then that the detention order is in effect.

3. The date of the detention order, where a person is already in custody begins to run as prescribed by the constitution after service of the detention order.

4. The Public Security (Detained and restricted Persons) regulations make provision in Regulation 10(1) for serving a detention order as soon as reasonably practicable and in any case not more than 5 days after the commencement of his detention. The detained persons in this case were duly served.

5. The constitution section 83(2) provides that the grounds upon which a person detained must be specified in detail.

6. The statement of the grounds upon which a person is detained are intended to enable them to make adequate representations to the Review Tribunal.

7. In this case the statement served upon the detainees was stereotype and insufficient. It merely informed them that they have engaged themselves in activities and utterances which are dangerous to the good government of Kenya

. 8. The statement of the grounds should contain basic facts and material but should not include evidence, as too much detail could prejudice public security and order.

9. Insufficiency of the statement of the grounds is a mere matter of procedure, it is not a condition precedent and hence inadequate grounds though improper is not fatal so as to render the detention order invalid.

10. Where the particulars in the statement are insufficient the remedy is for the detainee to apply for an order that further and better particulars be given and the forum is not the High Court but the Review Tribunal.

11. The subsidiary legislation upon which the detention order was made were required to be laid before Parliament within 20 days of the first sitting for either, an affirmative resolution to bring it into effect or a negative resolution to annul it.

12. The prorogation of parliament is an adjournment or an interruption of its sessions. Once a subsidiary legislation is laid before parliament it does not cease to have effect even if parliament is adjourned.

13. The subsidiary legislation laid before parliament remains in effect and is valid until and unless a resolution for its annulment is passed within 20 days. In this instance, the 20 day period began to run from when parliament commenced after the recess, after which no member moved a resolution for annulment.

14. The requirement that statutory instruments, in this case detention, be laid before parliament subject to negative resolution is directory and not mandatory, hence failure to comply would not render the order invalid.

Application disallowed.

Cases

1. Uganda v Commissioner of Prisons, Ex parte Matovu [1966] EA 514

2. Herbert v Phillips & Sealey (1967) 10 WIR 435 3. Mutale v AG of Zambia (1976) ZR 139

4. Attorney-General of Zambia v Chipango (1971) ZR 1 5. Das v State of West Bengal (1975) 1 AIR 550 (SC)

6. Ooko v Republic High Court Civil Case No 1159 of 1966

7. Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1979] 3 All ER 129; (1979) 43 WIR 108

Texts

1. May, Erskine (1976) Parliamentry Practice Law Library 19th Edn pp 250, 259

2. Allen, C. K. Law and Orders London: Stevens & Sons4th Ed p 163

Statutes 1. Constitution of Kenya sections 72; 76; 79; 80; 81; 83(2)(a), (b) 2. Preservation of Public Security Act (cap 57) section 6(1) 3. Public Security (Detained and Restricted Persons) Regulations (cap 57) Sub Leg) regulations 6, 10(1)

Advocates

Mr K Murungi & Mr GK Kuria for detainees

Attorney General and Assistant Deputy Public Prosecutor for the Commissioner of Prisons

Kasanga Joel Mulwa & another v Republic

High Court, at Nairobi

January 18, 1983

Simpson CJ

 Criminal Appeals Nos 1264 of 1982 & 19 of 1983 (consolidated)

Bail bond - sureties – undertakings by - duties of surety – duty to ensure accussed’s presence at trial – whether undertaking is absolute – liability to forfeiture - considerations before ordering forfeiture.

The appellants stood sureties for an accused person who left the jurisdiction of the court. The appellants appeared before the court to show cause why the bonds should not be forfeited. The court ordered that part of the bonds be forfeited. The appeal is against that order.

Held:

1. The undertaking by a surety to secure the presence of the accused person in court is absolute and the liability to forfeiture on default is unqualified.
2. The court has under section 131(5) of the criminal procedure code the power and it is within its discretion to limit any portion of the penalty and force part payment only. However this does not detract from the terms of the undertaking.
3. Forfeiture of recognizance is not a penalty imposed on the surety for misconduct.
4. There need be no collusion or want of diligence on the part of a surety before a court can order the whole amount to be forfeited.
5. When sureties enter into recognizance with an accused person they take on a serious obligations and must forfeit, should the person abscond. If the surety desires that the court exercise its discretion to remit the whole or part of the amount he has undertaken to pay he must persuade the court that by his efforts he deserves such remission or that his means are such that forfeiture of the whole amount would be unjust.

Appeal dismissed.

Cases

1. Reg v Southampton Justices, Ex parte Green [1975] 3 WLR 277; [1975] 2 All ER 1073
2. Regina v Horseferry Road Stipendiary Magistrate, Ex parte Pearson  [1977] 1 WLR 1197; [1979] 2 All ER 264

Texts

1. Mitra, B.B. The Code of Criminal Procedure (Act V of 1898) Calcutta 12th Edn p 2009

Statutes

1. Criminal Procedure Code (cap 75) section 131(5)
2. Magistrates Court Act 1952 [UK] section 96(1)

Advocates

1. Mr K Mulwa for the Appellants
2. Mr B Chunga for the Republic

Chrispus Keah v Joyce Mburu

High Court, at Nairobi

June 4, 1982

Simpson CJ

Civil Case No 615 of 1979

 Defamation - libel - letter alleging dishonesty, corruption, inefficiency, disloyalty to employer and tribalism - whether sending letter to specific addressees amounts to publication - whether common interest existed in subject matter of letter - defence of justification - proof of justification - malice - whether letter was defamatory.

Damages - for defamation - libel - allegations of dishonesty, corruption, inefficiency, disloyalty to employer and tribalism contained in letter - publication of letter to director, chairman and managers of plaintiff company - whether letter lowered plaintiff’s estimation in the eyes of his employers - quantum of damages - assessment of damages.

The plaintiff was a Personnel Assistant at a company factory in which the defendant owned and operated a canteen business. The plaintiff, on the instructions of a director of the company that owned the factory, wrote to the defendant asking her to advice her husband, who was understood to have addressed the company’s workers on matters to do with the canteen, that visitors were not allowed in the factory premises. In due course, the plaintiff received a copy of a four-page letter addressed to the company’s chairman, a director and four managers. The letter, which was from the defendant, accused the plaintiff of dishonesty, corruption, inefficiency, disloyalty towards his employers and tribalism. The plaintiff sued the defendant for damages for libel.

At the trial, the defendant stated that she had handed a copy of the letter to the plaintiff but denied sending it to any other addressees and counterclaimed against the plaintiff for “loss of business gains.” The defence and counter-claim not only did not contain any denial of publication but also made a reference to the “intention” of “the correspondence in issue.” In support of her defence of justification, the defendant called her husband who was not asked of the allegedly defamatory allegations and a worker at the canteen who, among other things, could not testify as to the plaintiff’s alleged dishonesty.

It was submitted for the defendant that the allegedly defamatory statement was on a subject matter in which the defendant and all those to whom it was published had a common interest.

Held:

1. The court was satisfied that the letter had been published to the persons to whom it was copied and the words used in the letter were clearly defamatory.
2. The defendant’s plea of justification failed as her evidence had been unconvincing and unreliable.
3. By the date the director of the company received the defendant’s letter, the defendant had ceased to run the canteen and had no common interest with that Director.
4. Even if the other copies of the letter were delivered while she was still running the canteen, the contents, the tone and the timing of the letter and the number of addressees showed that the defendant was actuated by malice.
5. The defendant’s counter-claim failed because it was based on unproven allegations and even if it had succeeded, any attempt to assess her loss would have been based on guesswork as she had given no evidence of her outgoings.
6. The letter must have lowered the plaintiff’s estimation in the eyes of his employers though there was no evidence that it was the reason his promotion was refused and his annual increment reduced.
7. The plaintiff had been defamed and an appropriate award for damages in this case would be Kshs 12,000.

Judgment for the plaintiff.

 Cases

Olowo v Attorney General [1972] EA 311 Distinguished

Statutes

No statute referred to.

Advocates

Mrs Khaminwa for Plaintiff

Mr Kimiti for Defendant

Aggarwal v Singh

High Court, at Nairobi April 30, 1981

Simpson J

Civil Case No 2140 of 1980

Civil practice and procedure - summary judgment - determination of existence of triable issues - defective affidavits.

Landlord and tenant - lease - termination of lease by notices - notices not properly served - controlled tenancies - whether an application for assessment of rent amounts to a decontrol order - whether previous assessment of rent by tribunal makes the premises a controlled tenancy.

This was an application for summary judgment for possession and mesne profits by the landlords of a block of flats. The tenants had failed to recognize the notice to vacate alleging that it was improperly served. The tenants also argued that theirs was a controlled tenancy.

Held :

1. The assessment of rent by the Tribunal amounted to ceasure of the tenancies being within the Rent Restriction Act.

2. The respondents have failed to show that there were triable issues.

3. The applicants are entitled to mesne profits.

4. The notices to quit were valid.

5. The omission to state that in their belief there is no defence to the action is not fatal, since it is for the court to determine whether or not the defence filed raises triable issues.

6. The order by consent, record by the tribunal is merely a record made by the tribunal of an oral agreement reached by the parties and is not an order made by the tribunal.

Cases

1. Kalyan v Rasi Properties Ltd (CA 127 of 1979)

2. Valji v Byramjee & Sons [1952] XXV KLR 8

Statutes

1. Civil Procedure Act (Sub Leg) Civil Procedure Rules Order XXXV rule 1 & 2

2. Transfer of Property Act 1882 of India Section 106

3. Rent Restriction Act (Cap 296)

Advocates

Mr RN Khanna for Respondent

Shah v Shah

High Court, at Nairobi April 9, 1980

Simpson J

Civil Case No 1981 of 1979

Injunction - ex parte injunction - dispensing with service in the face of urgency - effect of failure to provide for an undertaking - relevance of injunction to the subject matter of the relief claimed in the proceedings already initiated - possibility of obtaining a permanent injunction in interlocutory proceedings.

Lease - tenant in breach of a covenant - the right of such a tenant to an entitlement to a renewal of lease - when such a right is extinguished - when landlord is entitled to forfeiture of lease.

The dispute arose from a six year lease between a tenant and a landlord over shop premises. The tenant had failed to pay a proportion of site value tax within seven days of receiving a notice from the landlord. Accordingly, the lease became liable to forfeiture and when the landlord sought to regain possession so as to carry out demolition, the tenant obtained an ex parte injunction to stop the demolition. In their defence and counter claim the tenant sought relief from forfeiture and for his option to renew the lease as provided for to be affirmed. The landlord seeks to set aside the ex parte injunction and further prays for a permanent injunction restraining the tenant from trespassing in the shop premises occupied by him.

Held :

1. That where a matter is so urgent that if notice were to be served the mischief would be done before the injunction could be obtained, then service can be dispensed with.

2. That where a court overlooks to order for an undertaking in granting an injunction subject to it, this alone is insufficient reason for setting aside such an injunction.

3. That it is a well settled principle that an injunction sought in an interlocutory proceeding must bear some relationship to the cause of action in proceedings already initiated.

4. That there is no provision under Order XXXIX or in the Supreme Court of Judicature Act 18 for granting a permanent injunction in interlocutory proceedings.

5. That where a tenant is in breach of a covenant conditional to a renewal of the lease, the option to exercise such renewal is extinguished and the landlord is entitled to forfeiture of the lease.

6. The ex parte injunction is set aside and the tenant is declared in breach.

Application allowed.

Cases

1. Montgomery v Montgomery [1964] 2 All ER 22

2. Winstone v Winstone [1959] 3 All ER 580

3. Des Salles d’Epinoix v Des Salles d’Epinoix [1967] 2 All ER 539

4. McGibbon v McGibbon [1973] 2 All ER 836

Statutes

1. Landlord and Tenant (Shop, Hotels and Catering Establishments) Act (Cap 301)

2. Civil Procedure Act (Cap 21, Sub Leg) Order XXXIX

3. Transfer of Property Act, 1882 Section 114

4. Supreme Court of Judicature Act 1873 Section 25(8)

Advocates

Mr DN Khanna for Applicants

Mr Lakha & Mr Hira for Respondent