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

Musicraft Manufacture (K) Ltd v Doughty Ltd

High Court, at Nairobi September 3, 1992

Abdullah J

Civil Case No 5281 of 1991

Interest - power of the Court to order payment of interest – where a suit has been compromised – whether the Court can award interest antecedent to the suit or after filing the suit – where a party forbears to sue – whether such a party is entitled to interest from the date of compromise – whether an award of interest is a matter of right.

Interest – originating summons – whether a Court is empowered under section 26 of the Civil Procedure Act (Cap 21) to award interest upon orders made under originating summons – interpretation of section 26 of the Civil Procedure Act.

The plaintiff filed an originating summons to enforce a compromise and to enter judgment in the sum of Shs 211,020/- plus costs and interest from 14th May, 1984, being the date on which the plaintiff accepted the compromise. The defendant paid the sum of Shs 211,020/- on 6th November 1991 and did not dispute the plaintiff’s entitlement to costs as taxed. The only dispute was whether any interest was payable and if so whether it was to be calculated from 14th May, 1984 being the date of compromise or 2nd October, 1991 being the date of the filing in court of the originating summons.

It was argued for the plaintiff that interest should be awarded from the date of compromise on the grounds of implied agreement between the parties. On the other hand, it was contended for the defendant that interest could only be awarded from the date of filing of the suit and in any event interest could not be awarded to award interest on orders made under originating summons.

Held:

1. Interest in the Civil Procedure Act does not refer to discretion to award interest antecedent to the suit. Antecedent interest is the subject of adjudication and not discretion.

2. Forbearance to sue does not imply that the plaintiff is entitled to interest from the date of compromise.

3. An award of interest is a matter of discretion and not of right.

4. Section 26 of the Civil Procedure Act empowering the Court to award  interest on decree for payment cannot and does not apply to orders made under originating summons.

5. There can be no doubt that the omission to include “order” in section 26 with regard to award of interest was designed and deliberate.

6. There being no agreement for the payment of interest or any statutory provision for award of interest on delayed payment, the plaintiff was not entitled to any interest.

Cases

1. Bengal Nagpur Railway Company v Company Ratanji Ramji [1938] 2 Cal 72

2. London Chatham & Dover Railway Company v South Eastern Railway Company [1893] AC 429

3. Hunt v BP Exploration Co (Libya) Ltd (1980) CLR 144; [1982] 1 All ER 925

4. President of India v La Pintada Campania Navigation SA [1985] AC 104; [1984] All ER 773

5. Trans Trust SPRL v Danubian Trading Co Ltd [1952] 2 QB 297; [1952] 1 All ER 970; [1952] 1 Lloyd’s Rep 348

6. Sham, Kaur v Dhillon, Gurdial Singh [1960] EACA 795

Texts

1. Mulla, D F (1965) Mulla on the Code of Civil Procedure Bombay: N M Tripathi Private Ltd 13th Edn

2. Jacob, I H et al (Eds) (1975) Bullen & Leake’s & Jacob’s Precedents of Pleadings London: Sweet & Maxwell, 12th Edn

3. Hailsam, Lord et al (Eds) (1973 - 87) Halsbury’s Laws of England London: Butterworths & Co Ltd 4th Edn

Statutes

1. Civil Procedure Act (cap 21) sections 26(1); 27; 28

2. Civil Procedure Code [India] section 34

3. Law Reform (Miscellaneous Provisions) Act, 1934 [UK] section 3(1)

4. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rule 7

Advocates

Mr Oyatsi for the Plaintiff

Mr Fraser for the Defendant

Republic v Hussen

High Court, at Nairobi May 28, 1990

Abdullah J

Criminal Case No 54 of 1988

Criminal Practice and Procedure - evidence – sufficiency of evidence – what constitutes sufficient evidence.

Criminal Practice and Procedure - confession – oral confession – oral confession to be received with great caution – rationale for receiving the confession in such a manner - discretion of the Court to exclude a confession.

Criminal Practice and Procedure – charge – when to charge a suspect – where the investigation and gathering of evidence is continuing – whether a suspect should be charged at the first sight of sufficient of evidence.

The accused person was arrested and detained upon suspicion of murder of his wife. The accused later told the investigating officer that he had a confidential request to make. He started confessing to the murder of his wife and stated that certain evidence was in a store he owned. The investigating officer cautioned the accused who continued to plead with the officer and offered to bribe him.

They went to the store and the accused pointed out various places and items used in connection with the murder. He made oral statements amounting to confessions in respect of the murder.

The accused was not charged immediately. The defence argued that the police were unfair in not charging the accused the moment they had sufficient evidence to charge him. Further the investigating officer did not respond to the offer to bribe immediately hence his silence could amount to tacit inducement to obtain a confession.

The accused denied making a confession all together. To support this contention, the accused suggested that the failure by the investigating officer to mention the confessions to his superior officer who visited the scene was so incredible and indicated that the confessions were never made.

Held:

1. Sufficiency of evidence must be looked from the subjective view of the investigating officer. Sufficient evidence must be such that in the opinion of such police officer, the evidence may result in conviction.

2. Only where an investigating officer has patently overwhelming evidence in his possession and deliberately refrains from charging the accused person with a view to extracting a confession by unfair methods may the court criticize the conduct of such police officer and exercise its discretion to exclude the confession if the voluntary nature of the confession is tainted.

3. It is only after all the evidence is obtained and properly collected that a police officer may decide to charge the accused person.

4. When the police officer in the instant case had adequate evidence the investigation and gathering of evidence was continuing and could not be expected to pause at the first sight of sufficiency of evidence to charge the accused.

5. Evidence of oral confession of guilt ought to be received with great caution. Considerable danger of mistake arises from the misapprehension or malice of witnesses, the misuse of words, the failure of the party to express his own meaning and the infirmity of memory.

6. Evidence of oral confession of guilt should be received with caution also due to the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence, to magnify slight grounds of suspicion into sufficient proof.

7. The character of the witnesses, who are sometimes necessarily called in cases of secret and atrocious crime tends to impair the value of evidence of oral confession of guilt. This sometimes leads to its rejection, where, in all civil actions.

8. The police officer in this case testified as to what the accused said and his (the officer’s ) integrity and honesty was not impeached.

Accused convicted.

Cases

Rex v Kaperere s/o Mwaya (1948) 15 EACA 56

Texts

Taylor, JP (1920) A Treatise on the Law of Evidence London: Sweet &

Maxwell 11th Edn p582

Statutes

1. Penal Code (cap 63) section 204

2. Evidence Act (cap 80) section 77

Advocates

Mr Ghalia for the Defendant.

Joseph Muriithi Nyamu v Republic

High Court, at Nyeri

October 18, 1988

Abdullah J

Criminal Appeal No 172 of 1987

(Appeal from Conviction and Sentence of the District Magistrate’s Court at Baricho, J M Kairo Esq)

Sentencing – jurisdiction of a court to pass sentence – prescribed minimum sentence exceeding the sentence which trial court is authorised to pass imprisonment – whether trial court having jurisdiction to hear the case and pass sentence – Penal Code (cap 63) section 278–– Criminal Procedure Code (cap 75) sections 4, 7(3)(a), 364(2).

Jurisdiction – District Magistrate’s Court of the second class – whether court having jurisdiction to try offence for which the prescribed minimum sentence exceeds the sentence which the court is authorised to pass - Penal Code (cap 63) section 278 – Criminal Procedure Code (cap 75) sections 4, 7(3)(a), 364(2).

The appellant was convicted in a District Magistrate’s Court of the second class for stock theft contrary to section 278 of the Penal Code (cap 63).

He was sentenced to 2 years’ imprisonment with four strokes of corporal punishment.

The Penal Code section 278 prescribed a minimum punishment of seven years’ imprisonment with hard labor together with corporal punishment for the offence.

Held:

1. By the penal provisions of the Penal Code (cap 63) section 278, a sentence of imprisonment imposed under that section was not to be less than seven years. The section did not allow for discretion or room to impose a lesser sentence.

2. When a sentence which is less than the prescribed minimum is imposed, the High Court may, under its power of revision under the Criminal Procedure Code (cap 75) section 364(2), impose the correct sentence after giving the offender an opportunity of being heard, provided that the trial court had the power to impose such minimum sentence.

3. The fifth column of the First Schedule to the Code showed that the offence in this case was triable by a subordinate court of the first or second class in accordance with section 4 of the Code. However, section 7(3)(a) authorized the latter court to pass a sentence of imprisonment for a term not exceeding two years.

4. Notwithstanding the provisions of section 4 of the Criminal Procedure Code, a court which has no power to impose a minimum sentence required by the penal provisions cannot have jurisdiction to try and determine the offence under such penal provision. A conviction and sentence of a court which has no jurisdiction are a nullity.

Appeal allowed, retrial ordered.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 264(2); 308(1); 322

2. Criminal Procedure Code (cap 75) sections 4, 7(3)(a); 221, First

Schedule, Fifth Column

Advocates

Appellant unrepresented

Gacivih for the Respondent

Jamlick Gachari Musikiri v Republic

High Court, at Nyeri October 16, 1987

Abdullah J

Criminal Appeal No 120 of 1986

(Appeal from the Resident Magistrate’s Court at Kerugoya,

Muchemi Esq)

Criminal law – sexual offences – defilement – necessity of corroboration of prosecution evidence in cases involving such offences.

Evidence – evidence of a minor – duty of the court to comply with the Oaths and Statutory Declarations Act (cap 15) section 19 before taking such evidence – necessity of corroboration of such evidence – Evidence Act (cap 80) section 124.

Criminal Practice and Procedure - trial within a trial – accused stating he was beaten before making extra-judicial statement - failure to call police officer who recorded statement – accused not given opportunity to testify as to his alleged beating – whether statement properly admitted.

The appellant was originally charged with rape but he was convicted on a substituted charge of defilement contrary to section 145 of the Penal Code (cap 63) and sentenced to 5 years’ imprisonment together with 3 strokes of corporal punishment. He was also convicted and sentenced on a charge of possessing bhang under section 10 of the Dangerous Drugs Act (cap 245).

The case involved a complainant whose age had not been medically assessed and who had given evidence on oath without an inquiry being made as to whether she was intelligent enough to understand the nature of the oath. The trial magistrate, apparently guided by the testimony of the complainant’s mother, found that she was 12 years old.

A vaginal smear examination report made by an unknown person was produced in evidence by a police officer.

The trial magistrate conducted a trial within a trial to determine the admissibility of an extra-judicial statement which the appellant stated was recorded by him after he was beaten. Only a police officer in charge of the report office was called as a witness, after which the magistrate ruled that the statement was admissible because the appellant “did not challenge witness on cross-exam”.

The appellant appealed.

Held:

1. It would have been desirable to seek better evidence as to the age of the complainant, such as medical assessment of her age or birth certificates, before making a finding as to age on the mere say of the complainant’s mother.

2. If the complainant was of the age of 12 years, then the court, before taking her evidence, should have complied with section 19(1) of the Oaths and Statutory Declarations Act (cap 15) in that if the court was of the opinion that the complainant did not understand the nature of an oath, it could receive her evidence, even if not on oath, if it was of the opinion that she was possessed of sufficient intelligence to justify the reception of her evidence and that she understood the duty of telling the truth.

3. The necessity of material corroboration of the evidence of a child of tender years is, under section 124 of the Evidence Act (cap 80), an indispensable condition to a conviction of a person charged with an offence.

4. Moreover, in order for a conviction to be had in a sexual offence, the need for corroboration of the evidence of the prosecution is essential. The corroboration evidence given in this case was not corroboration evidence implicating the appellant.

5. The medical evidence had not been properly adduced as the report produced was not a report under the hand of the Government Analyst under section 77 of the Evidence Act (cap 80) nor had it been shown that the person who made the report could not be called in accordance with section 33 of that Act.

6. The cautionary statement of the appellant had not been properly admitted in evidence as the inspector who had recorded the statement had not adduced evidence at the trial within a trial and the appellant ought to

have been allowed to state when, where and by whom he had been beaten.

7. On the charge of possession of bhang, the trial magistrate was entitled to accept the evidence of the arresting officer, which was not disputed by the appellant.

Appeal against conviction and sentence for defilement allowed, appeal against conviction and sentence for possession of bhang dismissed.

Cases

1. Nyasani s/o Bichana v Republic [1958] EA 190

2. Kibangeny Arap Kolil v Republic [1959] EA 92

3. Oloo s/o Gai v R [1960] EA 86

4. Gabriel s/o Maholi v Republic [1960] EA 159

Statutes

1. Penal Code (cap 63) section 145

2. Dangerous Drugs Act (cap 245) section 10

3. Oaths and Statutory Declarations Act (cap 15) section 19

4. Evidence Act (cap 80) sections 33, 124

Advocates

Mr Mugu for the Republic.

Kamau Ngatia & another v Republic

High Court, at Nyeri September 11, 1987

Abdullah J

Criminal Appeal No 390 of 1986

(Appeals from the Senior Resident Magistrate’s Court at Nyeri,

E B Achieng)

Criminal law – housebreaking – ingredients of the offence – accused entering into open house and stealing property – whether offence of housebreaking committed – Penal Code (cap 63) section 304(1)(a).

Criminal law – handling stolen property – guilty knowledge – whether accused person who claims to be innocent purchaser may be imputed to have had guilty knowledge for having denied possession – Penal Code (cap 63) section 322.

Sentencing – severity of sentence – disparity of sentences – lenient sentence imposed on accused who pleads guilty and co-operates with police - severe sentence imposed on accused who is found guilty after trial for same offence – whether manifest disparity in sentences proper.

The first appellant was convicted of housebreaking and theft from a dwelling house contrary to sections 304(1)(a) and 279(b) of the Penal Code (cap 63) respectively. He was sentenced to concurrent terms of imprisonment for 4 years on each charge and to 4 strokes of corporal punishment on the second charge.

The court found that Stephen, one of the accused persons, had taken a gas cylinder from the house of the complainant while the first appellant was waiting outside, and the two later sold the cylinder to the second appellant. Stephen had pleaded guilty to the same offences and he gave testimony adverse to his co-accused. He also co-operated with the police in investigating the offences. He received concurrent sentences of 12 months’ imprisonment on each charge plus two strokes of corporal punishment on the second charge.

The second appellant was also convicted and sentenced on a charge of handling stolen property.

The appellants appealed.

Held:

1. There was no evidence that the house of the complainant had been broken into as Stephen had found the door open, entered it and stole the property. In these circumstances, the conviction for housebreaking was not correct.

2. A person who pleads guilty and co-operates with the police deserves to be treated with leniency; equally, an accused person has an inherent right to plead not guilty and to require the state to prove the charge.

3. The fact that an accused person has pleaded not guilty and is found guilty after trial should not be considered as a factor to impose a sentence in excess of what ought to be a reasonable and just sentence.

4. The sentence meted out on the first appellant was manifestly disparate in comparison with the sentence meted out on Stephen for the same offence.

5. The fact that a person accused of handling stolen property who claims to have been an innocent purchaser had denied possession of the property may not impute guilty knowledge at the time of acquiring possession.

First Appellant’s sentence reduced to 18 months’ imprisonment and two strokes, Second Appellant’s appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 20(b),(c),(d); 279(b); 322; 304(1)(a)

Advocates

Mr Mahan for the 1st Appellant.

Mr Mugu for the Republic.

Bencivenga v Amimo

High Court, at Machakos March 10, 1986

Abdullah J

Civil Case No 74 of 1983

Negligence – road traffic accident – motor vehicle emerging onto public road colliding with motor-cycle – driver’s view of road obstructed by object – whether driver of motor-vehicle negligent.

Damages – general damages – assessment of - for pain, suffering and loss of amenities – for loss of earnings - plaintiff suffering personal injuries in traffic road accident – fractures in bones of left leg and soft tissue injuries – plaintiff claiming that injuries prevented him from pursuing his career of choice – quantum of damages.

The defendant, while driving his motor vehicle, emerged from the driveway of his residence onto a public road and his vehicle collided with a motorcycle on which the plaintiff was a pillion passenger. The driveway used by the defendant before the collision was lined with a tall hedge which obstructed the view of traffic on the public road.

The plaintiff suffered various injuries on his left leg which included fractures of several bones, a torn knee ligament, various soft tissue injuries and post-haemorrhagic shock. The plaintiff sued the defendant claiming damages for pain, suffering and loss of amenities, loss of pleasure and salary in not having pursued his chosen career as a naval officer and loss of the accompanying benefit of free education and maintenance.

In his defence, the defendant contended that the motorcycle had been ridden at a high speed and that it had hit the bonnet of his car.

Held:

1. If the motorcycle was being driven at a high speed as the defendant contended, the defendant could have joined the rider as a party from whom to claim contributory negligence and indemnity, which the defendant had not done.

2. The defendant, who lived for sometime in the residence near which the accident had occurred, must have been aware of the traffic on the road and the obstruction of the high hedge on the driveway and as a prudent driver, it was his duty to stop and check for the traffic on both sides of the road onto which the driveway emerged before emerging onto that road.

3. The defendant did not stop and check for the traffic on both sides of the road before emerging onto it and as a result of that, the collision between his motor vehicle and the motorcycle occurred.

4. Where an injured person claims compensation for loss of earnings and for out-of-pocket expenses incurred by him, the basic principle is that the injured person should be placed in the same financial position as far as can be done by an award of money as he would have been had the accident not happened.

5. In the absence of proper evidence that the plaintiff was planning to pursue a career as a naval officer, the court could not award him damages for loss of the benefits which he would have earned in such a career.

6. For loss of amenities, pain and suffering, the plaintiff was entitled to general damages in the amount of Shs 200,000.

Judgment for the Plaintiff.

Cases

1. Yorkshire Electricity Board v Naylor [1968] AC 529; [1967] 2 All ER 1

2. Jones v Lawrence [1969] 3 All ER 267

3. British Transport Commission v Gourley [1955] 3 All ER 796; [1956] AC 185

4. Attorney General v Waiyera [1983] KLR 97; (1982-88) 1 KAR 84

5. Southern Engineering Co Ltd v Mutia, Musingi [1985] KLR 730; (1982- 88) 1 KAR 878

6. Mbatha, Mumo v Nzau Kiilu Machakos High Court Civil Case No 14 of 1985 (unreported)

7. Ali v Muhozozo [1983] KLR 602; (1982-88) 1 KAR 315

8. Ugenya Bus Services v Gachoki [1986] KLR 567

Texts

Hailsham, Lord et al. (Eds) (1973-87) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XII pp 446, 447, para 1147

Statutes

No statutes referred.

Advocates

Mr Mohamed for the Plaintiff

Mohamed Khamis Mazrui  & 2 others v Republic

High Court, at Nairobi

March 12, 1985

Abdullah J

Criminal Applications Nos 81,82,83 of 1985 (consolidated)

(In intended appeals from the convictions and sentences of the Chief Magistrate’s Court at Nairobi)

Bail – bail pending trial – application for – exercise by court of discretion to grant or not to grant bail – factors to be considered and principles to be applied in the exercise of this discretion – whether bail pending trial is an absolute and fundamental constitutional right – interpretation of sections 70, 71, 72(5) and 71 to 83 of the Constitution of Kenya.

Constitutional law – fundamental rights and freedoms - right to liberty – whether relevant in granting of bail – whether absolute or subject to other rights - Constitution of Kenya Chapter V.

The three applicants, who were students of the University of Nairobi, were charged in a magistrate’s court with taking part in an unlawful assembly and failing to comply with an order issued by a police officer contrary to the Public Order Act (cap 56) sections 5(11)(c)(i), (ii) and 5(1)(a). On two occasions, the applicants’ advocates applied for them to be released on bail but the applications were refused. The applicants filed fresh applications for bail in the High Court. It was submitted on behalf of the applicants that since the alleged assembly had been confined to the University and since the University had subsequently been closed and the students required to report to their local administration, there was no likelihood of a threat to public peace, tranquillity or security.

Held:

1. In principle, generally and because of the presumption of innocence, an accused person should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that: a) the accused will fail to turn up at his trial or to surrender to custody; or b) the accused may commit further offences; or c) he will obstruct the course of justice d) the fact that the applicant would lose more by absconding was a relevant factor in favour of granting bail.
2. The High Court in considering the applications for bail may in so far as the circumstances so necessitate look at the rulings of the Chief Magistrate to enable it to draw its own conclusions with regard to the question of bail.
3. The provisions of the Constitution, the Criminal Procedure Code and general practice do not provide that the right to bail pending trial is absolute.
4. The right to liberty is a fundamental right and freedom as set out in section 70 of the Constitution. However, it is not absolute but is subject to respect for the rights and freedoms of others and for the public interest.
5. The fundamental rights and freedoms are subject to limitations set out in sections 71 to 83 of the Constitution which are designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or public interest. The Constitution therefore permits the deprivation of personal liberty of a person on, among other grounds, reasonable suspicion of his having committed or being about to commit a criminal offence.
6. The word “shall” in subsection (5) of section 72 of the Constitution is not construed to confer an absolute fundamental right to bail; that word is construed to mean that bail shall be granted where the person “is not tried within a reasonable time”.
7. In the present case, it could not be said that there was no likelihood of a threat to public peace, tranquillity and security if the applicants were released on bail.

Applications for bail refused.

Cases

1. Rahim Obedi v People [1977] Zanzibar Law Reports 119
2. Nganga v Republic Misc Criminal Application No 61 of 1981; [1985] KLR 451
3. Opinder Singh Haul vs R Miscellaneous Criminal Application No 178 of 1981 (unreported)
4. Frimble v Stone
5. Mutunga v Republic Miscellaneous Criminal Application No 101 of 1982

Statutes

1. Criminal Procedure Code (cap 75) section 123 (3)
2. Public Order Act (cap 56) sections 5(1)(a); (11)(c)(i),(ii)
3. Constitution of Kenya sections 70-86 (Chapter V)

Advocates

1. Mr. Wetangula for the 1st Applicant
2. Mr. Ombete for the 2nd Applicant
3. Mr. Ombete for Nyamwamu for the 3rd Applicant
4. Mr. B Chunga, Asst. Dep. Public Prosecutor, for the Republic