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|Case Number:||Constitutional Reference 3 of 2011|
|Parties:||PROTUS BULIBA SHIKUKU v ATTONEY GENERAL|
|Date Delivered:||13 Feb 2012|
|Court:||High Court at Kisumu|
|Judge(s):||Roselyn Naliaka Nambuye, Abida Ali-Aroni|
|Citation:||PROTUS BULIBA SHIKUKU v ATTONEY GENERAL  eKLR|
|Court Division:||Constitutional and Human Rights|
|Parties Profile:||Individual v Government|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
CONSTITUTIONAL REFERENCE NO.3 OF 2011
For purposes of the record, the petition has been. Presented under the High Court Practice and Procedure Rules 2006 popularly known as the Gicheru Rules, Articles 21(1 & 2) (2)(b), 22(1), 3(c) and 23(1&,2), 26(1&2)48, 50(2) (b) C&P (6a&b), Sections 389 and 297(2) of the Penal Code.
In Count 3 with the offence of Rape contrary to section 140 of the Penal Code in that on the 20th day of December, 2002 in Butere/Mumias District within Western Province unlawfully had Carnal knowledge of J. A. without her consent,
In Count IV with the offence of attempted Robbery contrary to Section 297(2) of the Penal Code in that on the night of 20thDecember, 2002 in Butere/Mumias District within Western Province jointly with others not before court being armed with a dangerous weapon namely AK 47 Riffle attempted to rob David Munyendo and at or immediately before or immediately after the time of such attempted robbery assaulted him and threatened to use actual violence.
It is undisputed that the petitioner was tried in the lower court and found guilty of a substituted offence to Count (III) of indecent assault contrary to Section 144(1) of the Penal Code, and sentenced to serve 7 years imprisonment. He was also found guilty and convicted for the offence of attempted Robbery in Count (v) and sentenced to hang as prescribed by law.
The appellant was still dissatisfied and he accordingly once again excised his undoubted right of appeal to the Court of Appeal and in a judgment delivered on the 26th day of June, 2009 summarized the last position on the petitioner\'s second appeal to the Court of Appeal at page 17 of the judgment line 8 from the top thus: -
The full stop to the afore setout passage marked the end of the litigation road of the petitioner in his pursuit for a reprieve against the convictions and the sentences which had been handed out to him by the lower court and as confirmed by the superior court.
(1) That the petitioner is a convict serving life imprisonment after the death sentence that was imposed on him was commuted to life by the President.
(3) That mandatory death sentence meted on the petitioner was excessive arbitrary and inhuman and deprived the petitioner the right to fair trial contrary to Article 50(2) of the Constitution of Kenya.
(5) That the petitioner has suffered inhuman and degrading punishment and deprived the right to life arbitrarily in breach of Article 26(1)(3) of the Constitution of Kenya.
(7) That the petitioner was wrongly convicted of indecent assault and sentenced to seven years a charge he was never informed of and even given sufficient time to respond to and neither was it an alternative charge on the charge sheet in breach of Article 50 (b) (c) of the Constitution.
(i) That the Honourable Court be pleased to grant a declaration that the Constitutional rights of the petitioner have been breached by the respondent by convicting and sentencing the petitioner to serve an unlawful sentence.
(iii) That Section 297(2) of the Penal Code contradicts Section 389 as to the sentence for the offence of attempted robbery and goes against the letter and spirit of the Constitution enshrined in Article 26(18,2) and Article 50(2) of the Constitution of Kenya and the benefit of the contradiction should be given to the petitioner.
The petition is supported by a supporting affidavit whose content is a reiteration of the content of the grounds in the petition. We have not received any reply to the petition by the State but both counsels for the petitioner and the state filed written skeleton arguments which they orally highlighted before us, and a summary of the points stressed by the petitioners counsel are that the appellant has exhausted all his appellate rights up to the Court of Appeal which was the then highest court of appeal of this jurisdiction, the exhaustion sealed the petitioners fate of serving the sentences, one of seven years for indecent assault and another of death which was later commuted to life imprisonment. They have no complaint about the sentence of seven years because it has been served.
The respondents\' response in the skeleton arguments undated but filed on 2nd March, 2011 as well as the oral highlights reiterated that the appellant has exhausted his appellate process which culminated with a court of appeal decision on his appeal to that court in a judgment delivered on the 26th day of June, 2009 and an issue arises as to whether this court has jurisdiction to entertain this petition or not. They contend that this court\'s jurisdiction invoked under Article 50(6) of the Constitution does not lie because the said Section can only arise where there is demonstration of existence of new and compelling evidence which is not being retied upon herein. Instead, the petitioner seeks to rely on errors committed during trial, misdirection by the court, wrong applications of the law or a situation of a contradiction as seen under Section 389 and 297(2) of the Penal Code, matters not envisaged by that section. But concedes that a reading of Section 388 and 389 of the Penal Code tends to demonstrate that these two sections are complete in so far as definition of what an attempt to commit an offence of the character of a felony is and the punishment for such an attempt at the commission of the felony is also provided. that they concede that there is no dispute that attempted robbery is a felony but it is unique in itself in that it stands on its own as it has its own definition as given in Section 297(1) and followed by a penalty for an attempted commission of it in Section 297(2).
The court is invited to note that all those decisions were decided before 27th August, 2010 when the current Kenyan Constitution enshrining Article 50 was not yet born and for this reason, the Court of Appeal did not have an opportunity to reconcile and address the contradiction in those provisions in Section 388, 389, 297(1), (2) vis a vis the prescriptions is in Article 50 and for this reason this court has no jurisdiction to revisit that issue.
On case law, the court was referred to the case of Reyes versus the Queen  2AC 235a decision of the Privy Council page 245 - 256. Where there is found observations on interpretation of both the constitution and statute and in our opinion the following extracts of the said observations are relevant to the issues for determination herein: -
(ii) Also to decide what kind and measure of punishment such conduct should attract or be liable to attract.
(iv)The ordinary task of the curt is to give full and fair effect to the penal laws which the legislature has enacted.
(vi) When called upon to interpret the Constitution the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution---. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the Constitution but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society---
On the basis of the reasoning in number (i) - (vii) above, the Privy Council went on to hold, allowing the appeal that:
"Since the character of the offence of murder by shooting cannot vary widely, the imposition of the death penalty for some such offence would be plainly excessive and disproportionate and so to deny a person convicted of murder by shooting the opportunity to seek to persuade the court before sentence was passed that in all the circumstances to condemn him to death would be disproportionate and inappropriate would be to treat him as no human being should be treated and to deny him his basic humanity-
We have confined this judgment to sentence in respect of murder cases, because that was what was before us and what the Attorney General conceded to. But we doubt if different arguments could be raised in respect of other capital offences such as treason under Section 40(3), robbery with violence under Section 296(2) and attempted robbery with violence under Section 297(2) of the Penal Code. Without making conclusive determination on those other sections, the arguments we have set out in respect of Section 203 as read with Section 204 of the penal code might well apply to them."
"---in terms of Section 389 of the Penal Code, the appellant shall not be liable to imprisonment for a term exceeding seven years. But he was sentenced to death. The apparent conflict in the law may only be resolved by Parliament. But the appellant is entitled to the less punitive of the two sentences---"
At the same page 4 there is observation that the court\'s attention had been drawn to a recent decision of the same court in the case of Godfrey Ngotho Mutiso versus Republic (Supra)on a similar issue. They went on at page 5 of the judgment line 8 from the top to observe and hold: "Learned Counsel Mr. Oluoch who appeared for the State readily conceded the appeal on the legality of the sentence and we think he was right to do so. In the result we dismiss the appeal on conviction and allow the appeal on sentence. We set aside the sentence of death imposed on the appellant and substitute therefore a sentence of five years imprisonment The term of imprisonment shall run from the date of the appellant\'s conviction by the trial court on 15th October, 2008.\'
(iii) The general approach to the determination whether the right has been violated is not by a mathematical or administrative formula but rather Ly judicial determination whereby the court is obliged to consider all the relevant factors within the context of the whole proceedings.
(v) Although an applicant has the ultimate legal burden throughout to prove a violation, the evidential burden may shift depending on the circumstances of the case. However, the court may make a determination on the basis of the facts emerging from the evidence, before it without undue emphasis on whom the burden of proof lies.
(vii) Although the procedure for raising a violation of the right varies from one jurisdiction to the other, the violation of the right should be raised the earliest possible stage in the proceedings to enable the court to give an effective remedy otherwise the right may be defeated by the doctrine of waiver where applicable.
We have given due consideration to the above principles of case law assessed and applied them to the rival arguments herein and we are of the opinion that a number of jurisdictional issues have arisen which require determination before the merits of the petition can be interrogated. The first jurisdictional issue arises because it is apparent that the petitioner’s cause of action arose on the 26thday of June, 2009 when the court of appeal of this jurisdiction sitting as the ultimate highest appellate court dismissed the petitioner\'s appeal, confirmed the death penalty imposed by the lower court and as confirmed by the superior court without reconciling an apparent conflict of law between Section 297(2) of the Penal Code and Section 388 and 389 of the same Penal Code as it subsequently did in the Gichane case (supra) and the Juma Khisa case (supra). Also without calling upon the petitioner to persuade the court that confirming an outright death sentence would be disproportionate to the crime committed and inappropriate in the circumstances. It is also not disputed that had the petitioner thought it fit to complain then, his complaint would have been laid under the old constitutional arrangement, whose provisions ceased to operate upon the promulgation of the current constitutional arrangements which took effect on the 27th August, 2010. It is also not disputed that the jurisdiction of this court has been approached in its capacity as the superior court inferior in rank to the Court of Appeal both as it was then and as it is now. It is therefore necessary to provide basis for existence of the mandate then before translating it to the existence of the mandate as it is now.
It is now write and we have judicial notice of this fact that where issues of jurisdiction arise either on the motion of the court or upon them being raised by the parties, these have to be determined first. There is the case of owners of the motor vehicle Lillians versus Caltex Oil Kenya Ltd  KLR I where Nyarangi JA as he then was at page 14 paragraph 30 to page 15 paragraph 5 had this to say:-
The case of Boniface Waweru Mbiyu versus Mary Njeri and another Misc. Application No.639 of 2005 where Ojwang J as he them was now Judge of the Supreme Court of Kenya had this to say:
The case of Desai versus Warsame  EA 350 where it was held inter alia that: - "No court can confer jurisdiction on itself."
"Any issues regarding jurisdiction ought to be considered first so that in the event the court coming to the conclusion that h has no jurir4iction the merits of the issues at stake should not be gone into."
"To reiterate, this court must be properly moved under the correct legal provisions for it to grant the relief sought."
(2) The high court shall have original jurisdiction: -
(1) The contravention by the State of any of the protective provisions of the Constitution is prohibited and the High Court is empowered to award redress to any person who has suffered because of such contravention.
(i) That Section 84 of the defunct Constitution gave the court original jurisdiction on matters presented to the court under that section.
(iii) The section provides for the rights namely a direct right of access to the High Court under Section 84(1) and a referral right under section 84(3) from the subordinate court.
The section 84 procedure is limited to alleged breaches or threatened breaches of rights set out in sections 70-83 of the same defunct Constitution. Emukule J in the case of Benjoh Amalgameted Ltd and another versus Kenya Commercial Bank Limited  LLR 6045 (HCK] decided on the 30th day of May 2007 ruled that “transactions entered into by private individuals are governed by private law and have nothing to do with the State.” The case of Kenya Bus Services Ltd and 2 Others versus the Attorney General Nairobi HCCC Misc. application Number 413 of 2005 where once again Nyamu J as he then was now JA was categorical that:
(ii) These are principally available against the state.
(iii) The Constitutional function is to define what constitutes government and the governed.
(iv) The constitution goes further to make provision for the regulation of the relationship between the government and the governed.
(v) Rights of individual interests are taken care of in the principle of private law and are invariably dealt with as such.
Having established existence of jurisdiction vested in the superior court prior to the 27th August, 2010 had the petition been presented then and having opined that the case of action arose in 2009 when the commission omission on the part of the court of appeal arose, we now come to determine Whether the said cause of action survived the transition and this superior court is properly seized of the matter as submitted to us by the petitioner\'s counsel. The petitioner\'s Counsel has maintained that it did survive the transition through the transitional clue Article 262 provision. It reads: -
"Except to the extent that this Constitution expressly provides to the contrary, all rights and .obligations however arising, of the government or the Republic and subsisting immediately before the elective date, shall continue as rights and obligation of the National Government or the Republic under this Constitution."
These fall into two categories namely those flowing in through the Article 2(5) provisions whereby "the general rules of international law shall form part of the law of Kenya” on the one hand, and those prescribed by the current 2010 Constitution itself.
On the home front there are several prescriptions in the current 2010 Constitution. The central command in Article 19 in a summary is for this court to note that the bill of Rights is "an integral part of Kenya\'s democratic State". Sole purpose of recognizing and enforcing the bill of rights is "to preserve the dignity of the individual and communities and to promote social justice and the realization of the potential of all human beings".
These belong to each individual.
Article, 21(1) on the other hand commands "the state and every State organ inclusive of the courts to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights". Whereas as Article 22(1), 3(d) and a clearly "gives a right to every person to institute court proceedings claiming that While observing the rules of natural justice they shall not be unreasonably right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.” And when so approached courts are enjoined to note that “while observing the rules of natural justice, they shall not be unreasonably restricted by procedural technicalities”. Further that “absence of rules made under the current 2010 constitution is no bar to a litigant availing him/herself of the prescriptions in the Constitution”, meaning that the old rules under the defunct section 84(6) are still applicable and operational.
We also note as observed by Nyamu J as he then was now JA when construing the mandate of the high court under the defunct Section 84(1) procedures that this mandate is without exceptions, meaning that issues touching on the Bill cc Rights are proper candidates for interrogation by the superior court even if these have arisen as a result of actions of a court higher to the superior court like the scenario we are faced with herein, the only caveat being that these must be those that touch on the Bill of Rights as between individuals and state organs.
(a) A declaration of rights;
(c) A conservatory order;
(d) A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Dill of Rights and is not justified under Article 24;
(f) An order of judicial review.
"Article 50 (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or of appropriate another independent and impartial tribunal or body.”
"Article 50(6) a person who is convicted of a criminal offence may petition the high court for a new trial if:-
(b) New and compelling evidence has become available."
(a) That justice shall be done to all
Articles 165(i), 3(a) (b)(d), (i) (ii) which establishes the high court with unlimited original jurisdiction in criminal and civil matters, jurisdiction to determine the question
(i) The question whether any law is inconsistent with or in contravention of this constitution.
We hove given due consideration to the afore set out assessment of the applicable fecal prescriptions both at the International and Municipal levels and applied them to the rival arguments for and against the petition and we proceed to make the following general findings on the petition before us.
(2) That we have not been approached in an appellate jurisdiction to overturn that decision in our capacity as an appellate court over the court of appeal not withstanding that there is no such jurisdiction vested in this court being a court of inferior jurisdiction to the court of appeal.
(4) That from the facts before us this breach accrued to the petitioner on the same date the appeal was dismissed namely 26th day of June, 2009.
(5) At the time of dismissal of the said appeal, constitutional grievances could be directed to the high court vide the provisions of the then defunct section 84(1) (2) and 84(6) of the defunct constitution.
(7) We are in agreement that Article 23 procedures of the current Constitution is the equivalent of the Section 84(1) procedures.
(9) In a unique way the superior court is being asked to interfere with a decision of the court of appeal. We are in agreement that Article 23 of the current 2010 Constitution as read with Article 165(1) 3(a)(b) (d) (i) (ii) have donated the same mandate without exception to this superior court and for this reason of donation of jurisdiction without exception we feel confident that we are properly seized of the petitioner\'s complaints which arise from an alleged act of omission or commission by the courts of this jurisdiction as laid out in the petition.
(a) Equality before the law courts, tribunals and equal protection of the law is a fundamental right.
(c) There is entitlement to a right to an effective remedy meaning one which is capable of enforcement with a leaning towards conferring of a right.
(e) Adjudication of the rights are between the individual as the governed and the state as the governor and are not adjudicatable as between individuals under private law.
(g) The interpretation should also bear in mind the need to observe respect and protect the dignity of the individual.
(i) Even where no specific remedies were prescribed as being inbuilt in the defunct Section 84(1) Provisions, the courts had jurisdiction to grant appropriate remedies known in law. Some of which have now been entrenched in Article 23 with a rider that they ace not exhaustive.
"Section 297(2) of the Penal Code provides: If the Offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more other \'persons or if at or immediately before or immediately after the lime of the assault he wounds, beats, strikes, or uses any other personal violence to any person he shall be sentenced to death.
Section 389 of the Penal code provides: Any person who attempts to commit a felony or a misdemeanor is guilty of an Offence and is liable if no other punishment is provided to one half of such punishment as may be provided for the offence attempted, but so that if that offence is once punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years."
(13) The highest court of this jurisdiction then has ruled se in the case of Godfrey Ngotho Mutiso verus Republic (supra).
(15) The state of affairs the appellants in the cases, mentioned in number 14 above faced the same set of circumstance that faced the petitioner herein when he appeared before the same court of appeal in the year 2009 but no reconciliation was done in his favour.
(17) This court -has a mandate donated by Article 23(1) as read with Article 165(1)(2), 3(a)(b)(d)(i)(ii) to interrogate Section 297(2) 388(1), 389 all of the penal code and arrive at a determination as to whether these conflict with any of prescriptions in the Bill of Rights enshrined in the 2010 Constitution, declare the existence of incompatibility and then proceed to render an effective remedy to the petitioner.
(1) Whether in light of Article 50(a) and (b) of the Constitution we have jurisdiction to hear the matter and make a declaration that the petitioners rights were violated when the court of appeal affirmed the death sentence meted out by the trial court and as confirmed by the superior court
(2) Whether there is a contradiction between Sections 297(2) and 388 all of the Penal Code and if so,
We have considered these questions in the light of the rival argument for and against the petition, the general assessment done by us general observations or findings set out herein and the applicable guiding principles as found in general finding number (10) and we proceed to make the following concluding findings as hereunder: -
(1) Although we have jurisdiction under Article 50) (a) & (b) to reopen the matter and order a retrial, we are inclined not to take that route because of the following reasons: -
(c) We are satisfied that on the basis of the mandate bestowed on us
(2) We are in agreement with the assertion of the petitioner both in the petition and submissions and as not seemingly contested by the State that there is conflict between Section. 297(2), 388(1) and 389 all of the Penal Code, a position confirmed by the Court of Appeal in the Gichane Case (supra) and the Juma Khisa Case (supra). We are also in agreement that this is the current correct position in law and binding on court\'s subordinate to the court of appeal in the exercise of their criminal jurisdiction. -
(4) That since there is no period of limitation prescribed in the Constitution as to when one can avail himself/herself benefit of a fundamental right which ought to have accrued to her/him earlier, there is nothing that can prevent the petitioner from claiming equal treatment on the basis of the recent jurisprudential development of the law which has benefited others like him.
"Every accused person has the right to a fair trial which includes the right to the benefit of the least severe of the prescribed punishment for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time- of sentencing." By reason of our mandate in Article 20(3) as read with articles 165(1)(2), 3(a)(b)(d)(e)(ii), that the courts do interpret the constitutional provisions broadly, liberally With a view to favouring the enforcement of enjoyment of the right by the individual, we wish to construe this provision Article 50(2)(p) and state that it applies also to recent jurisprudential development in law that bestows a right on to an individual and which right is not limited to the beneficiary alone but can be enforced to be enjoyed by other beneficiaries in similar situations. Herein we have no doubt that the jurisprudence generated by the Gichane case (supra) and Juma khisa case (supra) will benefit others in like situations other than the original beneficiaries and there is no reason as to why the petitioner should not benefit in a like manner.
(c) It will be in line with the principle in Article 20(3) (a) (b) of interpreting the fundamental right to equal treatment before the law and equal protection of the law, broadly so as to make it available for enforcement and enjoyment by litigants, who ought to have benefited from the same on the day pronouncement on the last appellate right were made.
(e) it will he in line with the principle in Article 19(2) in that sentencing a young man of the age of the petitioner to death but later commuted to life if allowed to stand would be against the realization of the full potential of the petitioner as a human being as he will not be in a position to contribute to the common good of himself and that of his community due to long incarnation and by the time he will be released upon serving the life sentence he will be too old as his prime life would have been spent in rotting in jail
(g) It will be in line with the mandate donated to the superior court vide Article 165(1)(2)(3)(a),(b)(d)(i)(ii) of being enabled to declare existence of incompatibility and then go ahead to provide a remedy.
(h) It will be in line with the recent jurisprudential development in the Godfrey Ngotho case (supra) that the provision of a death penalty is antithetical to the right of life and a right against subjection of an individual to inhuman and degrading treatment contrary to the provision of the Constitution.
(6) By reason of what has been stated in number (1) - (5) above, we invoke our mandate in Article 23(3) as read with Articles 165(1) (2) 3(a) (b) (d) (i)
(ii) of the Constitution and proceed to grant the following reliefs: -
(a) An order be and is hereby made and declared that Section 297(2) of the Penal Code contradicts Section 389 of the Penal Code a to the sentence of the offence of attempted robbery and goes against not only the letter and spirit of Article 389 providing a general penalty for attempted felonies among them attempted robbery as robbery is a felony, but also goes against the previsions of the Constitution as well as International norms end best practices accessed through Article 2(5) of the Constitution assessed above.
(c) An order be and is hereby made ordered and declared that the petitioner is entitled, as of tight to benefit from the general sentence provided for under Section 389 of the Penal Code as opposed to the penalty of ,death prescribed therein because as opined and found by the court of appeal in the Godfrey Ngotho case (Supra) a death penalty where it exists negatives an individual\'s right to life and protection against subjection of an individual to inhuman and degrading punishment more so when all the courts through the petitioner was processed never gave him an opportunity to address them on the issue of non proportionality and inappropriateness of handing out a death penalty for an attempted offence from which the perpetrator never benefited.
(7) Each party to bear own costs.
DATED, READ AND DELIVERED AT KISUMU THIS 13th DAY OF February 2012.