John N. Michuki & another v Attorney-General & 2 others

High Court, at Nairobi

May 10, 2002

Msagha & Juma JJ

Miscellaneous Application No 975 of 2001

Constitutional Law – fundamental rights and freedoms – enforcement of – creation of districts and provinces under the Constitution – whether the creation thereof is unconstitutional - whether creation infringes on fundamental rights – act purporting to amend the Constitution – The District and Provinces Act, 1992 section 5 and the National Assembly and Presidential Elections Act (cap 7)

Constitutional Law - amendments of the constitution - how constitution amended - Act of Parliament purporting to create new districts - Constitution prescribing number of districts - whether Act unconstitutional for purporting to amend the Constitution.

Election Law – Electoral Commission – powers and duties of the Commission – orders against Electoral Commission – duty of the Electoral Commission to effect one-person one-vote principle.

Civil Practice and Procedure - court - order of court - court not to grant order which it cannot supervise - court declining to grant order because its result could be devastating.

The applicant by an originating motion filed an application for declarations inter alia that, Kenya has only 40 districts and that The Districts and Provinces Act 1992 was ultra vires the Constitution and therefore null and void. The respondents to the motion were the Attorney-General, the Electoral Commission of Kenya and the Constitution of Kenya Review Commission.

The respondent also sought orders requiring the Electoral Commission to re-draw the constituency boundaries. The basis for the application was that by their actions and or omissions the respondents had breached or were about to breach his constitutional rights.

Held:

1. An Act of Parliament cannot amend the Constitution which requires 65% or more members of the assembly to do so.

2. The Districts and Provinces Act, 1992, section 5 thereof is unconstitutional, null and void, in purporting to amend or repeal section 4 of the Constitution of Kenya (Amendment) Act, 1968.

3. The Districts and Provinces Act, 1992 was unconstitutional to the extent of its provision purporting to amend the Constitution , but not so in the creation of the disputed districts.

 4. The creation of districts under the Districts and Provinces Act, 1992 is not unconstitutional as the power is derived from the Constitution itself which in 1968, conferred the said powers upon an Act of parliament.

5. The creation of the districts was not unlawful and therefore any breaches founded thereon cannot be sustained and any declarations related thereto cannot be issued.

6. The Electoral Commission is a creature of the Constitution with power to prescribe the boundaries and names of constituencies. The Electoral Commission has no national criteria for determining the size of a constituency and no system of weighing the criteria set out in section 42(3) of the Constitution. As a result of this arbitrary exercise of its powers it has infringed on freedom of assembly and the principle of one person-one vote. There is some imbalance in representation.

7. Although it is clear to the court that there is some imbalance in representation, the court cannot grant the order sought by the applicant as the order could be devastating. The court can only give an order that it is able to supervise in default thereof.

 8. The applicant has faulted the Electoral Commission sufficiently enough to require the Commission to address the issues.

 9. (Obiter) The best the court can do with the material before it is to require that the Electoral Commission should take it upon itself to address the issues raised by the applicant to avoid future litigation of this nature.

Application against the 1st and 2nd respondent succeeds accordingly. Application against the 3rd respondent dismissed.

Cases

No cases referred to.

Statutes

 1. Constitution of Kenya sections 1, 27, 32(2), 42, 78, 80, 82, 84, 123,

 2. Judicature Act (cap 8) section 3

3. Constitution of Kenya Review Act (cap 3A) section 27

4. Civil Procedure Act (cap 21) section 3A

5. District and Provinces Act 1992 (Act No 5 of 1992) section 5

6. Constution of Kenya (Amendment) Act No 16 of 1968

8. National Assembly and Presidential Elections Act (cap 7) sections 4, 4A

Samuel Mwaura Muiruri & 2 others v Republic

Court of Appeal, at Nyeri

May 10, 2002

Kwach, Bosire & Keiwua JJ A

Criminal Appeals Nos. 117, 131, 133 of 2000 (Consolidated)

(Appeal from the judgment of the High Court at Nyeri, Juma & Mulwa JJ, dated June 6, 2000 in H.C.CR.A Nos 135, 136 and 137 of 2000)

Evidence – identification –– dock identification and identification parades – circumstances in which dock identification may be relied upon – conducting identification parades– parades involving two suspects conducted fifteen minutes apart with the same parade members and witnesses – likelihood of prejudice to the suspect in the second parade–– whether second parade properly conducted.

Criminal Law – robbery with violence – ingredients of the offence – Penal Code (cap 63) section 296 – court reducing charge to simple robbery because no person was injured and no weapon weapon was used in robbery – facts showing that the accused had been in the company of other robbers– – whether facts disclosing robbery with violence - whether charge properly reduced.

The appellants were among six persons jointly charged in a magistrate’s court with robbery with violence and a count each of rape contrary to sections 296(2) and 140 of the Penal Code (cap 63) respectively. They were convicted on the rape charge. The magistrate observed that because none of the complainants had been injured in the course of the robbery and no offensive weapon had been used, the main charge was not proved and he reduced it simple robbery under section 296(1) for which he also convicted the appellants. On first appeal, the High Court found that the evidence before the trial magistrate supported the greater offence of robbery with violence. The court set aside the appellants’ convictions and proceeded to convict and sentence them for robbery with violence. The main issue in the appellants’ second appeals was their identification. The alleged robbery had occurred during the night but the appellants had been allegedly identified by the victims both in identification parades and in court. They had been arrested on the basis of information given to police by the first accused but it was not shown in what circumstances the first accused had been arrested and the arresting officer had not been called to give evidence.

Held:

1. It cannot be said that all dock identification is worthless. The court might base a conviction on such evidence if satisfied that on the facts and circumstances of the case the evidence must be true and if prior thereto the court duly warns itself of the possible danger of mistaken identification.

2. A prosecutor is duty-bound to call witnesses necessary to establish the truth in a case. The failure to call the officer who arrested the first accused was a serious omission. Such an omission in an appropriate case might lead to the quashing of an otherwise sound conviction but not in this case. The appellants were before the court, were present when witnesses testified and were given a chance to cross-examine witnesses and to testify on their own behalf.

3. The identification parades in which the first and second appellants were identified were conducted fifteen minutes apart, and had the same parade members and witnesses. This was not proper as there was the possibility of prejudice to the first appellant in the second parade and not much weight should have been attached to it.

4. Nevertheless, the visual identification of the first appellant by four witnesses sufficed and in all, this Court was satisfied that all the appellants were correctly identified.

5. The High Court properly quashed the appellants’ respective convictions under section 296(1) of the Penal Code (cap 63) and substituted convictions under section 296(2). The incident involved more than one attacker and even assuming that they were not armed with any dangerous weapons, and that no injury was caused, a conviction under section 296(2) would still stand. But in any case, the evidence clearly showed that violence was used against three persons during the robbery.

Appeals dismissed.

Cases

1. Njoroge v Republic [1982-88] 1 KAR 1134

2. Amolo v R (1988-92) 2 KAR 254

 3. Abdalla bin Wendo & another v R (1953) 20 EACA 166

 4. Roria v R [1967] EA 583

5. Maitanyi v Republic [1986] KLR 198; (1988-92) 2 KAR 75

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

 Statutes

 1. Penal Code (cap 63) sections 140, 144, 296(1), 296(2)

2. Criminal Procedure Code (cap 75) section 179(2)

3. Evidence Act (cap 80) section 111