Weekly Newsletter 024/2020



Kenya Law

Weekly Newsletter


Failure of a sign interpreter in a criminal trial to interpret in a manner that enables a disabled accused person to understand the proceedings violates the rights to a fair trial and right to information.
 
Kenga Hisa v Republic [2020] eKLR
Criminal Appeal No. 3 of 2019
High Court at Malindi
RN Nyakundi, J
March10, 2020
Reported by Kakai Toili
Download the Decision

 
Constitutional Law fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to a fair trial and right to information – where an accused person was charged with the offence of defilement – where the accused person was dumb – where during the trial an interpreter was appointed to interpret the proceedings to the accused person – where the interpreter failed to interpret in a manner that enabled the accused person to fully understand the proceedings - whether the failure to interpret violated the accused person’s his rights to a fair trial and right to information – Constitution of Kenya, 2010, articles 35 and 50(2)(m.
Constitutional Law – fundamental rights and freedoms – right to fair hearing – right to legal representation at State expense – where an accused was charged with the offence of defilement - what were the circumstances in which accused persons were entitled to legal representation at State expense - Constitution of Kenya, 2010, article 50; Legal Aid Act, 2016, section 29(1), 30, 35 and 36.
Jurisdiction – jurisdiction of the High Court – appellate jurisdiction - what was the role of the High Court as an appellate court in criminal matters.
Evidence Law – evidence – examination of witnesses – where the witness was a child - voire dire examination - what was the purpose of conducting voire dire examination - Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya, section 19.
Criminal Law– sexual offences – defilement – proof of defilement - factors to be considered – where an accused person was arrested soon after allegedly committing the offence of defilement but was not subjected to a medical test– whether it was necessary to subject the accused to a medical test - Sexual Offences Act, 2006, sections 2 and 8(1).
Criminal Law – sexual offences – defilement – age assessment of victims – requirement for  age assessment of the victims in sexual offences - rationale of age assessment - imprecise assessment of age - what was the effect of imprecise assessment of the victim’s age - Sexual Offences Act, 2006, sections 8(2).

Brief facts:
The appellant was charged, tried, convicted and sentenced to life imprisonment for the offence of defilement contrary to section 8(1) and 8 (2) of the Sexual Offences Act. Aggrieved by the decision, he filed an appeal to the instant court on among other grounds that; the trial court erred in fact and law in convicting the appellant when there was no proof of penetration of the offence; and that the trial court erred by failing to acknowledge and appreciate the contradictions on the prosecution’s case which created reasonable doubt in the prosecution case.

Issues:
  1. Whether the failure of a sign interpreter to interpret in a manner that enabled a disabled accused person to fully understand the proceedings violated his rights to a fair trial and right to information.
  2. What were the circumstances in which accused persons were entitled to legal representation at State expense?
  3. What was the role of the High Court as an appellate court in criminal matters?
  4. What was the purpose of conducting voire dire examination?
  5. What were the factors to consider in proving the offence of defilement?
  6. Whether it was necessary for an accused person arrested soon after an alleged defilement to be subjected to a medical test.
  7. What was the role of assessing the age of a victim of a sexual offence and what was the effect of imprecise assessment of the victim’s age?
Held:
  1. Being a first appellate court, the court was entitled to; examine the evidence, re-hear the case, reconsider the material before it and make its own decision therein without disregarding the judgment of the trial court but carefully weighing the evidence and final findings made in the matter.
  2. The trial court based its findings in the testimony of the complainant in respect of proof of the act of penetration. During the trial, voire dire examination was conducted by the trial court which exercised discretion that the complainant was possessed of such intelligence capable of appreciating the duty to tell the truth in a court. The trial court thus permitted the complainant to give unsworn evidence. On the other hand, the trial court’s order was at variance with the final decision which allowed the complainant to adduce unsworn evidence. Considering the decision of the trial court in line with section 19 of the Oaths and Statutory Declarations Act (Cap 15), the trial court’s decision was incompatible with the principle that in conducting a voire dire the trial court had to form the opinion whether the child was possessed of sufficient intelligence to justify the reception of evidence and understood the duty of speaking the truth.
  3. The trial court failed to make a finding as required in section 19 of the Oaths and Statutory Declarations Act with respect to the competency of the complainant to give unsworn evidence. The test applied was not sufficient enough to establish whether or not the child was competent enough to give evidence. Evidence in court was about the truthfulness and falsity of the facts in issue and before a witness was allowed to take the witness box, It was imperative that on the face of it the trial court processed that the witness understood the solemn duty of speaking the truth to aid it as the trier of facts in the administration of justice.Conviction based on the complainant’s testimony was imperiled and the basis on the voire dire inquiry as reflected in the record was vague.
  4. The prosecution ought to prove each element of the offence beyond reasonable doubt. As regards penetration, section 2 of the Sexual Offences Act set the tone that the act could be either partial or complete insertion of the male genitalia with that of the female or in rare circumstances penetration of the anal orifice of the victim who could be, in the instant case a male. The law also asserted that penetration could be proved without medical assistance.
  5. On penetration, the trial court on conviction relied on material evidence of the complainant, PW2 and PW3. In the circumstances of the case which raised the standard of proof of beyond reasonable doubt, for example, the complainant claimed of the unlawful intention and acts done which culminated in the act of penetration. The challenge paused by PW2’s testimony, was that she duly identified the complainant being taken away but never explained to the court why she never restrained the appellant from going away with a five year old child. PW2 came to the scene after the fact of defilement, in response to the distress call by the complainant.
  6. There was doubt as to whether the appellant was the one who picked the complainant from where he was playing with other children to commit the crime. From the record, the trial court opined that the complainant was not capable of telling the truth. It was inappropriate to place reliance on his evidence to make positive findings as to his culpability and commission of the crime. It was plain from PW2 that the complainant was with other children when the appellant carried him away to his house.Therefore, having ascertained that PW2 took no step when her child aged 5 years was being removed from amongst other children, the identification of the appellant would have been corroborated by calling the evidence of the known children in the company of the complainant at the time.
  7. The complainant was defiled but a shred of doubt existed as to the positive identification of the perpetrator. In any case the testimony of PW2 in reference to the appellant remained doubtful to the extent that she asked the court to believe that her child of 5 years old was carried away by the appellant and made no desperate attempt to protect and secure his safety.
  8. The complainant’s voire dire examination was in violation of section 19 of the Oaths and Statutory Declarations Act. On account of the medical evidence and the reducible minimum in the P3 form, PW3 informed the court that there were no lacerations to the anal orifice but a genital swab positively showed presence of spermatozoa suggestive of sexual intercourse. From the extract there was variance as to whether the anal orifice was even partially penetrated by the perpetrator of the offence.There was no indication whatsoever on the P3 report that the alleged person made attempt to penetrate the anus and in the course deposited spermatozoa into the genitalia of the complainant.
  9. As the appellant happened to be arrested soon after the alleged defilement, a medical test should have been conducted to place him at the scene of the crime. Those discrepancies needed to trouble the trial court because they were inconsistent as to whether the appellant in actual sense sexually assaulted the complainant.
  10. Age of the victim of the sexual assault under the Sexual Offences Act was a critical component. It formed part of the charge which had to be proved the same way as penetration in the cases of rape and defilement. It was therefore essential that the same be proved by credible evidence for the sentence to be imposed would be dependent on the age of the victim.
  11. On age, the trial court drew inference from the medical assessment report produced by PW4 that the minor complainant was defiled at the age of 5 years old.The prosecution led evidence placed the age of the complainant at 5 years within the medical assessment report from PW4.Though the trial court acknowledged the evidence and proceeded to convict the appellant the variance between the 7 year age in the charge sheet and 5 year old assessed by the medical was never reconciled on conviction of the appellant. Despite the age being within the bracket of section 8(2) of the Sexual Offences Act the appellant suffered prejudice from the fact of non-proof of age. An imprecise assessment of a child’s age could have far reaching administration of justice consequences including prejudice and miscarriage of justice on the part of the offender.
  12. The basic criteria applied by the medical officer which gave rise to the opinion on the age of the complainant was missing. The predicament confirming the primacy of medical age assessments report performed by medical practitioners and experts under section 48 of the Evidence Act was the inequality of the parameters applied to come with a particular age assessment. With respect to the medical officers the determination of age assessment had to be credible and not based on perceived incorrect instinct or gut feeling as to the age of a minor. A finding of age had to be based on correct facts untainted by conjecture or speculation and the scientific opinion be drawn from cogent and legitimate sources substantial to confirm the age of the minor. It had to have escaped the attention of the trial court that age was never proved to entitle a life imprisonment sentence.
  13. The specifics of the right to a fair trial which occasioned prejudice to the appellant constituted the right to have the free assistance of an interpreter if he could not understand or speak the language used in court. The key illustration in the case was the disability of the appellant who by no default of his own was born dumb or acquired it in the course of his life cycle. The general requirement of fairness contributed in article 50(2)(m) of the Constitution was for the trial court to establish the effective sign interpreter to dialogue and appropriately interpret the proceedings to the appellant. The criminal proceedings ought to have been organized as to respect the best interest of persons with disability.
  14. As far as the right to an interpreter was concerned essentials of age, level of knowledge and intellectual and emotional capabilities should be part of the positive steps, appraised to effectively have such vulnerable offenders participate effectively in their trials. Nevertheless, on appeal several sign interpreters were secured to facilitate interpretation in the appeal proceedings. In contrast with the elaborate detailed trial record, none of the sign interpreters procured by the Deputy Registrar was capable to equally connect with the appellant to fully answer the case. The matter came up for hearing and was adjourned severally due to non-availability of sign interpreters.
  15. The sign interpreter failed to interpret in a manner that enabled the appellant fully understand the proceedings to make full disclosure of his defence against the charges on appeal. The right to interpretation and translation and right to information under article 35 of the Constitution underlay the entire fair trial rights in the entire criminal process. Ensuring substantive equality, the value and importance of interpretation of proceedings to an appellant in the proceeding trial could not be underscored more so where proceedings were required to be in the sign language. Language being the core foundation for justice deliverables was a right that had to be secured for the accused. There was inadequacy of quality of interpretation accorded to the appellant. The appellant was prejudiced and the events in the court room though sanctioned by the trial court were in all practical purposes ineffective rendering the trial a mistrial.
  16. The compendium of the criteria on legal services by the State was outlined in section 29(1), 30, 35 and 36 under the Legal Aid Act No. 6 of 2016.Although the duty and mechanism against the State to offer legal aid was well spelt out in the Legal Aid Act, its enforcement and implementation was at an infant stage on compelling reasons of budgetary, constraints. Notwithstanding, that position, like other legal rights under article 50 of the Constitution it commanded no more than the performance and the duty of the court to redress and guarantee the right in a particular manner succinctly put in the Constitution.
  17. On the basis of constitutional and statutory law, fair trial rights and recognized right to legal counsel were considered as part of the corpus of customary international law guaranteeing the right to legal representation. The appellant was charged with a serious offence of defilement and upon conviction he was to be sentenced to life imprisonment. It was evident that the appellant was a vulnerable person by virtue of his disability. Any accused person, regardless of the gravity of their crime, could receive a court appointed lawyer if the situation regarded it.Such cases could be those involving complex issues of fact or law where the accused was unable to effectively conduct his or her own defence due to disabilities or language difficulties or simply where the public interest required that some form of legal aid be given to the accused because of the nature of the offence.
  18. The right to legal representation was never communicated to the appellant promptly immediately after indictment and arraignment for plea on the charge of defilement. The instant case’s factual matrix were worth to conduct an inquiry under article 50(h) of the Constitution on substantial injustice and grant leave for legal counsel to be provided for the appellant at State expense. In the preceding criminal trial conducted by a qualified prosecution counsel and an illiterate appellant was in violation of the doctrine of equality of arms in article 50 of the Constitution. Legal counsel in a court room context was of fundamental importance as well as indispensable element of a fair trial. As a consequence, the ramifications of the fair trial rights to the extent that they were infringed was a misdirection and wrong exercise of discretion by the trial court.
  19. Shifting the center of gravity on equality before the law under article 27 of the Constitution, right to interpretation and translation, and right to information for the accused were pillars in the administration of justice to be fully financed by the State. Indeed the critical question of legal representation to the accused persons under article 50(h) of the Constitution according to the dictates of the case where substantial injustice would otherwise result be significantly enhanced to safeguard the right to a fair trial. A reading of article 50(h) of the Constitution extended right to counsel as part of fair trial rights if the interest of justice required without any costs payable by him as part of the eligibility criteria.
  20. Given Kenya’s history, a large part of the citizenry was not endowed with knowledge on how courts worked. It was for courts to ensure minimum rights enshrined in the Constitution particularly to a class of defendants like the appellant who seldom could find themselves on the wrong side of the law were protected and enforced. Trial courts ought to purpose to give effect to article 50(h) of the Constitution on legal representation where substantial injustice would otherwise result. Notwithstanding advances made by the Judiciary to enhance capacity on the right to interpretation more needed to be done to pursue an affirmative action in connection with sign interpreters for the benefit of vulnerable witnesses and defendants in the administration of criminal justice.
Appeal allowed on both conviction and sentence; appellant to be set at liberty forthwith unless otherwise lawfully held.  
Kenya Law
Case Updates Issue 024/2020
Case Summaries

APPEALS LAW Difference between pain and suffering experienced by a victim of an accident with serious multiple skeletal injuries in contrast with that of low level soft tissue injuries.

Daniel Gatana Ndungu& another v Harrison Angore Katana [2020] eKLR
Civil Appeal No. 72 of 2019
High Court at Malindi
R Nyakundi, J
April 15, 2020
Reported by Chelimo Eunice

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Appeals -appeal on award of damages – claim that damages awarded was inordinately high – circumstances in which the appellate court would interfere with the trial court’s assessment of damages.
Law of tort – injuries - difference between pain and suffering experienced by a victim of an accident with serious multiple skeletal injuries in contrast with that of low level soft tissue injuries.

Brief facts:
The instant case was an appeal against the trial court’s decision of awarding the respondent Kshs. 350,000/= as general damages for pain and suffering and loss of amenities. The appellant claimed, among others, that the award was inordinately high and was disproportionate to the injuries suffered by the respondent.

Issues:

  1. Grounds in which an appellate court would interfere with the trial court’s assessment of damages.
  2. What were the principles for the assessment of damages in personal injury cases?
  3. What was the difference between pain and suffering experienced by a victim of an accident with serious multiple skeletal injuries in contrast with that of low level soft tissue injuries? Read More..

Held:

  1. The award of general damages was an exercise of discretion by the trial court based on the evidence and impressions on demeanor of witnesses made by the trial court which advantage, an appeal court by its mode of delivery lacked.
  2. An appeal court did not have the jurisdiction to interfere with the assessment of damages merely by substituting a figure of its own to that awarded by the trial court, even though there were no sufficient grounds. The rationale was both constitutional and statutory that where a judgment had been made by a competent court, an appellate court was estopped from asserting the contrary position unless it was so inordinately high or low as to represent an entirety erroneous estimate. It had to be shown that the trial court proceeded on wrong principles, or that it misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
  3. The principles in assessment of damages in personal injury cases had an objective and subjective element which had to be taken into account. The actual injury suffered was the objective part of the assessment. The awareness of the claimant and the knowledge that he or she would have to live with the injury for quite sometime was part of the subjective portion of the assessment. The interaction between the subjective and the objective elements in light of other awards for similar injuries determined the actual award made to a particular claimant.
  4. The import of discretion by an appellate court to further interfere with a decision of an order or judgment of another court exercising a judicial function was a weighty matter only to be done within the confines of the laid down principles. In the exercise of judicial discretion, as to whether or not to set aside a judgment, the court would consider whether in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the judgment. The court would not interfere with the exercise of discretion by an inferior court unless its satisfied that its decision was clearly wrong, because it had acted on matters on which it ought not have acted or because it had failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.
  5. Prima facie in the trial properly conducted by the trial court, the respondent was entitled to an award of general damages both on the objective and subjective strands. The respondent’s evidence was sufficiently presented with no rebuttal from the appellant to contravene it on the assessment of damages.
  6. An appellate jurisdiction was an upper layer of system of court to correct any errors, misdirections or acts done in excess of jurisdiction.
  7. With respect to the exercise of discretion by the trial court, it misdirected itself on the appropriateness and reasonableness of the award for injuries basically described as soft tissue with no residual permanent disability. Even in assessing compensatory damages, the law sought at most to indemnify the victim for the loss suffered, not to mulct the tortfeasor for the injury he had caused.
  8. There was a distinct difference between the pain and suffering experienced by a victim of an accident with serious multiple skeletal injuries in contrast with that of low level soft tissue injuries. Pain and suffering was almost a term of art. In so far as that could be distinguished, pain meant the physical hurt or discomfort attributable to the injury itself or consequent upon it. It, thus, included the pain caused by any medical treatment which the plaintiff, could have to undergo. Suffering on the other hand denoted the mental or evidential distress which the plaintiff could feel as a consequence of the injury: anxiety, worry, fear, torment, embarrassment and the like.
  9. Whereas loss of amenity was deprivation of the plaintiff of the capacity to do the things which before the accident he was able to enjoy, and due to the injury, he was fully or partially prevented from participating in the normal activities of life.
  10. The discretion necessary involved a latitude of individual choices according to the particular circumstances and differed from a case to case basis.
  11. The determination of the claimants’ rights and obligations in any legal proceedings as postulated in the Constitution and enabling statutes, which could result in a ruling, order or a judgment was an exercise of discretion throughout the hierarchy of courts under article 162 of the Constitution.
  12. Matters of discretion in the context of judicial hierarchy and the issuing of decisions from the superior courts to the trial courts for guidance followed that by deciding cases, the Supreme Court directed the work of the lower courts, but the inevitable ambiguity of the courts precedents permitted them to exercise a measure of discretion where still complying with its basic directions.
  13. The trial court reached an erroneous decision and the assessment could be best described as inordinately high.

Appeal allowed. Award of Kshs. 350,000 substituted with Kshs. 140,000. Costs to be equally shared.

CIVIL PRACTICE AND PROCEDURE

Circumstances under which casual employees would be converted into term employees by operation of the law.

Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited
Cause No 258 of 2018
Employment and Labour Relations Court at Kisumu
MN Nduma, J
April 16, 2020
Reported by Beryl Ikamari

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Civil Practice and Procedure - functus officio and res judicata - applicability - where an issue of interpretation that had not previously been addressed had arisen after parties had received their judgment - whether the principles of functus officio and res judicata would prevent the court from entertaining the issue.
Labour Law - employment - casual employees - conversion of casual employees to term employees - circumstances under which a casual employee would be converted to a term employee by operation of the law - Employment Act, 2007, section 37.

Brief Facts:
The applicant sought various orders from the court including orders for the respondent to implement a Collective Bargaining Agreement (CBA) with respect to all unionisable employees regardless of whether they were casuals, contracted, outsourced or permanent and the payment of salary arrears for all affected employees under clause 32 and 34 of the CBA. The CBA was registered and the respondent had implemented it but in a way that discriminated against what the respondent regarded as casuals.
Earlier on, the court had ruled that the claimant was prematurely before the court because the CBA had not been registered. The respondent argued that because the court heard and determined the dispute pursuant to the consent endorsed by the court on September 20, 2018 and due to the delivery of the ruling of July 18, 2019, the court was functus officio and the application was res judicata and bad in law.

Issues:

  1. When would the principles of functus officio and res judicata be applicable to a suit?
  2. Under section 37 of the Employment Act 2007, under what circumstances would a casual employee be converted into an employee under a term contract? Read More...

Held:

  1. The issue before the court related to the interpretation of clause 34 of the CBA. It was an issue that was not determined by the consent of the parties pursuant to which the CBA was registered or the ruling of July 18, 2018. Therefore, the court was not functus officio and the issue was not res judicata.
  2. The judgment in question was to the effect that the CBA's terms related to casual workers as well as fixed term workers. Particularly, under clause 28 of the CBA all casual workers were converted into fixed term contract employees.
  3. The import of section 37(3) of the Employment Act, 2007 was that where a casual employee worked for a continuous period of not less than one month or performed work which could not reasonably be expected to be completed within a period of three months in the aggregate, that employee would automatically convert from a casual employee to a term contract. Therefore, all employees who had been employed as casuals initially, and had served the respondent for a continuous period of two months were entitled to the negotiated terms of the CBA and in particular, the salary increment under clause 34 of the CBA for the period 2017-2018.

Judgment entered for the claimant against the respondent with no order as to costs.

CONSTITUTIONAL LAW

The nature and effect of a probation report in sentence re-hearing proceedings.

Republic v Peter Mutuku Mulwa & another [2020] eKLR
Criminal Case No. 46 of 2003
High Court of Kenya at Machakos
G V Odunga, J
March 30, 2020
Reported by Chelimo Eunice

Download the Decision

Constitutional Law – rights and fundamental freedoms – right to fair hearing – right of an accused person to have the trial begin and conclude without unreasonable delay – whether delay in determining criminal proceedings infringed upon the rights of an accused person to a fair hearing – what were the emergent principles on the right to a trial within a reasonable time – Constitution of Kenya, 2010, article 50 (2) (e).
Criminal procedure – re-sentencing - principles guiding courts in re-sentencing hearing - whether a probation report was binding on the court on re-sentencing hearing - whether it was mandatory for a court to reduce the initial sentence during re-sentencing.
Constitutional Law – rights and fundamental freedoms – rights of persons detained, held in custody or imprisoned - whether a convict lost his rights and fundamental freedoms by virtue of being imprisoned - what were the objectives of sentencing - Constitution of Kenya, 2010, article 51 (1).

Brief facts:
The accused sought an order for resentencing. They were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. They had sawed some timber and then left for a meal. On their return, they found the deceased stealing the timber and they beat him up, tied his hands and left to get some help. When they returned, they found him dead. After hearing the evidence, the trial court found them guilty, convicted them accordingly and sentenced them to death.

Issue:

  1. Whether delay in determining criminal proceedings infringed upon the rights of an accused person to a fair hearing.
  2. What were the emergent principles on the right to a trial within a reasonable time?
  3. What principles guided courts in re-sentencing?
  4. Whether a probation report was binding on the court on re-sentencing hearing.
  5. Whether it was mandatory for a court to reduce the initial sentence during re-sentencing.
  6. Whether a convict lost his rights and fundamental freedoms by virtue of being imprisoned.
  7. What were the objectives of sentencing? Read More...

Held:

  1. Delay in determining criminal proceedings infringed upon the rights of an accused person to have the trial begin and conclude without unreasonable delay pursuant to article 50 (2) (e) of the Constitution.
  2. The following broad principles emerged from the consideration of the Commonwealth and international jurisprudence on the right to a trial within a reasonable time:
    1. the trial within a reasonable time guarantee was part of international human rights law and although the right would not be textually in identical terms in some countries the right was qualitatively identical.
    2. the right was not an absolute right as the right of the accused had to be balanced with equally fundamental societal interest in bringing those accused of crime to stand trial and account for their actions.
    3. the general approach to the determination whether, the right had been violated was not by a mathematical or administrative formula but rather by judicial determination whereby the court was obliged to consider all the relevant factors within the context of the whole proceedings.
    4. there was no international norm of reasonableness. The concept of reasonableness was a value judgment to be considered in particular circumstances of each case and in the context of domestic legal system and the economic, social and cultural conditions prevailing.
    5. although an applicant had the ultimate legal burden throughout to prove a violation, the evidentiary burden would shift depending on the circumstances of the case. However, the court could make a determination on the basis of the facts emerging from the evidence before it without undue emphasis on whom the burden of proof lay.
    6. the standard of proof of an unconstitutional delay was a high one and a relatively high threshold had to be crossed before the delay could be categorized as unreasonable.
    7. although the procedure for raising a violation of the right varied from one jurisdiction to the other, the violation of the right had to be raised at the earliest possible stage in the proceedings to enable the court to give an effective remedy otherwise the right could be defeated by the doctrine of waiver where applicable.
    8. the purpose of the right was to expedite trial and was designed principally to ensure that a person charged did not remain too long in a state of uncertainty about his fate.
    9. the right was to trial without undue delay. It was not a right not to be tried after undue delay except in Scotland and it was not designed to avoid trials on the merits.
    10. i) the remedy for the violation of the right varied from jurisdiction to jurisdiction. In some jurisdictions such as Canada and New Zealand it seemed that permanent stay of proceedings was the normal remedy for violation of the right.
      ii) under the Common Law and under the jurisprudence of European Court of Human Rights, a permanent stay of proceedings was considered a draconian remedy only granted where it was demonstrated that the breach was so severe that a fair trial could not be held.
      iii) in most of the Commonwealth countries with bill of rights and a constitution based on West Minister model, and, in South Africa the remedies were flexible – courts could grant any relief it considered appropriate in the circumstances of the case.
      iv) in some jurisdictions, where the applicant was already convicted, the quashing of a conviction was not considered a normal remedy and the court could take into account the fact that the applicant had been proved guilty of a crime, the seriousness and prevalence of the crime and design an appropriate remedy without unleashing a dangerous criminal to the society.
  3. A resentencing hearing or any other sentencing hearing for that matter was neither a hearing de novo nor an appeal. Such proceedings were undertaken on the understanding that conviction was not in issue. It, therefore, followed that in those proceedings, the accused was not entitled to take up the issue of the propriety of his conviction. He had to proceed on the understanding that the conviction was lawful and restrict himself to the sentence and address the court only on the principles guiding the imposition of sentence and on the appropriate sentence in the circumstances.
  4. The court could only refer to the evidence adduced in so far as it was relevant to the issue of sentencing but not with a view to making a determination as to whether the conviction was proper. While the court was entitled to refer to the evidence in order to determine whether there existed aggravating circumstances or otherwise for the purpose of meting the sentence, it was not proper for the court to set out to analyse the evidence as if it was meant to arrive at a decision on the guilt of the accused.
  5. That the possibility of reform and social re-adaptation of the offender was to be considered in sentence re-hearing implied that where the accused had been in custody for a considerable period of time, the court ought to consider calling for a pre-sentencing report and possibly the victim impact report in order to inform itself as to whether the accused was fit for release back to the society.
  6. Fairness to the accused where a sentence re-hearing was considered appropriate would require a consideration of the circumstances prior to the commission of the offence, at the time of the trial and subsequent to conviction. The conduct of the accused during the three stages would, therefore, be a factor to be considered in determining the appropriate sentence. The need to protect the society required the court to consider the impact of the incarceration of the offender whether beneficial to him and the society or not hence the necessity for considering a pre-sentencing report.
  7. The probation report being a report which was not subjected to cross-examination in order to determine its veracity, was just one of the tools the court could rely on in determining the appropriate sentence. It was, therefore, not necessarily binding on the court and where there was discrepancy regarding the contents of the report and information from other sources such as from the parties themselves and the prison, the court was at liberty to decide which information to rely on in meting out its sentence. To rely on the probation report as the gospel truth amounted to abdication of the court’s duty of adjudication to probation officers. While the report of the probation officer ought to be treated with great respect, it was another thing to accept it hook, line and sinker. It, however, ought not to be simply ignored unless there were good reasons for doing so.
  8. Where the accused had spent a considerable period of time in custody, it could be prudent for the court while conducting a sentence re-hearing, to direct that an inquiry be conducted by the probation officer and where necessary a pre-sentencing and victim impact statements be filed in order to enable it determine whether the accused had sufficiently reformed or had been adequately rehabilitated. That was so because the circumstances of the accused in custody could have changed either in his favour or otherwise in order to enable the court to determine which sentence ought to be meted. It may be that the accused had sufficiently reformed to be released back to the society. It could well be that the conduct of the accused while in custody could have deteriorated to the extent that it would not be in the interest of the society to have him released since one of the objectives of sentencing was to protect the community by incapacitating the offender.
  9. A prisoner could not be detained unless there were legitimate penological grounds for that detention. Those grounds included punishment, deterrence, public protection and rehabilitation. Many of those grounds were available at the time when a life sentence was imposed. However, the balance between those justifications for detention was not necessarily static and could shift in the course of the sentence. What could be the primary justification for detention at the start of the sentence could not be so after a lengthy period into the service of the sentence. It was only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that those factors or shifts could be properly evaluated.
  10. If a prisoner was incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there was the risk that he could never atone for his offence. Whatever the prisoner did in prison, however, exceptional his progress towards rehabilitation, his punishment remained fixed and unreviewable. If anything, the punishment became greater with time. The longer the prisoner lived, the longer his sentence. Thus, even when a whole life sentence was condign punishment at the time of its imposition, with the passage of time it became a poor guarantee of just and proportionate punishment.
  11. The circumstances under which the initial sentence was imposed could change as one served out the sentence. Accordingly, in undertaking a resentencing the court had to consider whether the circumstances of the accused during his/her incarceration had changed for the better or for worse. It was, therefore, important that not only should a report be availed to the court concerning the position of the victim’s family and the offender’s family but also the report from the prison authorities regarding the conduct of the offender during the period of incarceration. Therefore, where a resentencing was directed, the trial court ought to consider the filing of a probation report in order to assist it arrive at an appropriate report. However, the failure to do so was not necessarily fatal to the sentence.
  12. In re-sentencing, the court was not obliged to reduce the initial sentence. What was required of the court undertaking the re-sentencing was to look at all the circumstances of the case and to make a determination whether the appellant’s incarceration had achieved the objective for which he was sentenced such as punishment, deterrence, public protection and rehabilitation. The court was not to be bound only by the appellant’s conduct that led to his incarceration but also his conduct and circumstances since the incarceration.
  13. The petitioner’s liberty and rights to re-sentencing was being hindered by circumstances beyond their ability and there was no indication as to when, if at all, the previous records would be availed. Thus, their petition could no longer be delayed. A convict did not lose his rights and fundamental freedoms simply because he was in prison. That was so because article 51(1) of the Constitution provided that a person who was detained, held in custody or imprisoned under the law, retained all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom was incompatible with the fact that the person was detained, held in custody or imprisoned.
  14. The best practice was that, where an appeal was pending before the Court of Appeal or a higher court or where the previous proceedings had not been availed, re-sentencing proceedings ought not to be proceeded with and the latter ought to be kept in abeyance pending the determination or termination of the pending appeal or the availability of the previous records. However, where the applicant had waited for a very long time to get his previous records transmitted back to the court in order to facilitate the court in carrying out its constitutional mandate to no avail, the justice of the case dictated that the rights of the petitioner be upheld.
  15. Since what the accused were seeking was a reconsideration of their sentence, there was no undue hindrance to the court which was the trial court undertaking the resentencing proceedings by calling for the probation officer’s report, victim impact report and report from the prison and proceedings to consider the petitioner’s mitigation and arriving at an appropriate sentence.
  16. According to the probation officer’s report, the 1st accused, while in incarceration used to operate a number plate printing machine and also learnt carpentry through apprenticeship. According to the community, he was social and related well with his community members, was industrious, supportive and resourceful and had a positive attitude and was respectful to the authorities both at home and in prison. It was confirmed that reconciliation had taken place between the families of the 1st accused and those of the victim’s both of whom belonged to the same clan and therefore the deceased’s family had no objection to the court being lenient to the 1st accused as customary compensation had been done.
  17. As for the 2nd accused, he was described as well behaved and industrious person who took good care of his family. The family of the deceased held no grudge against him after the reconciliation between them and the 1st accused since the 2nd accused was not from the same clan and he had only been contracted by the family of the 1st accused to saw timber for them. Similarly, the prison gave a positive report towards him and had no problem with the local administration.
  18. There were four sets of factors a court looked at in determining the appropriate custodial sentence after determining the correct entry point, being;
    1. circumstances surrounding the commission of the offence; the factors included:
      1. was the offender armed? The more dangerous the weapon, the higher the culpability and hence the higher the sentence.
      2. was the offender armed with a gun?
      3. was the gun an assault weapon such as AK47?
      4. did the offender use excessive, flagrant or gratuitous force?
      5. was the offender part of an organized gang?
      6. were there multiple victims?
      7. did the offender repeatedly assault or attack the same victim?
    2. circumstances surrounding the offender; the factors included:
      1. the criminal history of the offender; being a first offender was a mitigating factor;
      2. the remorse of the applicant as expressed at the time of conviction;
      3. the remorse of the applicant presently;
      4. demonstrable evidence that the applicant had reformed while in prison;
      5. demonstrable capacity for rehabilitation;
      6. potential for re-integration with the community;
      7. the personal situation of the offender including the applicant’s family situation; health; disability; or mental illness or impaired function of the mind.
    3. circumstances surrounding the victim; the factors to be considered included:
      1. the impact of the offence on the victims, if known or knowable;
      2. whether the victim got injured, and if so the extent of the injury;
      3. whether there were serious psychological effects on the victim;
      4. the views of the victim(s) regarding the appropriate sentence;
      5. whether the victim was a member of a vulnerable group such as children; women; persons with disabilities; or the elderly;
      6. whether the victim was targeted because of the special public service they offer or their position in the public service; and
      7. whether there had bee n commitment on the part of the offender or applicant to repair the harm as evidenced through reconciliation, restitution or genuine attempts to reach out to the victims of the crime.
  19. According to the prison report, the accused had been in custody for a period of 17 years. Loss of life was, no doubt, a very serious matter. In those circumstances, however, it was highly unlikely, that the accused would commit a similar offence. It was clear that the accused had during the period of their incarceration reformed and had engaged themselves in activities meant to assist them in reintegrating with the community. Not only were they well behaved but they had reconciled with the family of the deceased who no longer harboured any ill-will towards them. Their communities had no issue with them re-joining the society and their families were ready to welcome them back into the fold. Due to reconciliatory steps initiated by both families, the victim’s family had forgiven the accused and had no issue with them being released since it was their opinion that the accused had been sufficiently disciplined and had learned their lessons during the period they had been in custody. The period of incarceration of the accused was sufficient punishment and consequently their incarceration had achieved three objectives of retribution, deterrence and rehabilitation.
  20. The accused’s incarceration had served the purposes for which imposition of sentences was meant. Once the sentence imposed on an accused had met the objectives of retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation, it was no longer necessary or desirable to continue holding the accused in incarceration. The victim’s family, the community and the accused’s family as well as the prison authorities were in agreement that it was no longer in their interest to keep the accused incarcerated.

Application allowed.

Order:
The accused sentenced to the period that could ensure their immediate release from prison unless they were otherwise lawfully held.
(Ruling delivered pursuant to section 168 of the Criminal Procedure Code as read with article 50 of the Constitution in the absence of the accused due to the prevailing restrictions occasioned by Covid-19 pandemic and particularly as the decision was in favour of the accused.)

INSURANCE LAW

Section 156(1) of the Insurance Act did not prohibit insurers from making demands for premiums after the expiry of an insurance policy.

Cannon Assurance (Kenya) Limited v Mohansons Food Distributors Limited
Civil Suit 373 of 2003
High Court at Nairobi
DS Majanja, J
April 2, 2020
Reported by Beryl Ikamari

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Insurance Law - contract of insurance - unwritten or oral contract of insurance - where the relationship between the parties showed that oral requests were made for issuance of various policies and debit notes with respect of those policies were issued- whether under those circumstances, a valid contract of insurance or an insurance policy existed.
Insurance Law - insurance contract - premiums - effect of non-payment of premiums - where section 156 of the Insurance Act provided that an insurer would not assume risk unless premium was paid or its payment was guaranteed or a deposit or prescribed amount had been paid -whether the non-payment of premiums would make an insurance contract void or disentitle an insurer from claiming premiums after the expiry of the insurance policy - Insurance Act (cap 487), section 156(1).
Limitation of Actions - actions founded on contract - running of time - interruption of running of time by an acknowledgement of debt - where parties were in discussion with respect to a debt - what would amount to an acknowledgment of a debt - Limitation of Actions Act (cap 22), sections 4(1)(a) and 24(1).
Civil Practice and Procedure - interest - exercise of discretion to award and fix interest - when and how would the court award and fix interest for a claim relating to a specific sum of money.

Brief facts:
The plaintiff claimed Kshs. 6,612,434 from the defendant as the total amount of outstanding insurance premiums. The plaintiff also claimed Kshs. 57,750 from the defendant being insurance claim excess payable under the relative policy in respect of an accident that took place on February 7, 1997 involving the defendant’s motor vehicle.
The defendant denied that the plaintiff received any proposal from the defendant to issue any policy of insurance in respect of the amounts claimed or that any insurance policies were issued. In the alternative, the defendant pleaded that the plaintiff’s attempt to enforce payment of the alleged contracts of insurance was illegal and that the contracts were unenforceable by virtue of section 156(1) of the Insurance Act. The defendant also said that certain debit notes were time barred under section 4(2) of the Limitation of Action Act.

Issues:

  1. Whether failure by the defendant to call witnesses to support its defence could discharge the plaintiff from having to prove its case.
  2. Under what circumstances would a valid contract of insurance be in existence despite the absence of a written contract or policy of insurance?
  3. Whether in light of section 156 of the Insurance Act an insurer could demand payment for premiums after the expiry of an insurance policy.
  4. What would amount to an acknowledgement of debt which would interrupt the running of time for purposes of limitation of actions under section 24(1) of the Limitation of Actions Act?
  5. When would the court exercise discretion to award and fix interest rates? Read More...

Held:

  1. The defendant filed a defence but did not call any witness and thus the oral and documentary evidence of the plaintiff remained uncontroverted. Nonetheless, under sections 107, 108 and 109 of the Evidence Act, the plaintiff had the burden of proof of the existence of the facts that it relied on. That burden had to be discharged on a balance of probabilities.
  2. Even if the defendant did not call any witness, it could discredit the plaintiff's case through cross-examination. It was also entitled to defend its case by raising legal grounds which could defeat the plaintiff's claim.
  3. Evidence showed that the relationship between the plaintiff and the defendant was based on the fact that the defendant’s director was also a director of the plaintiff hence the relationship was informal over the transaction period. It was evidenced by debit notes and correspondence which proved that indeed that the parties transacted hence the bare denial of any transaction between the plaintiff and the defendant lacked any basis.
  4. Evidence showed that the defendant requested for cover on various dates for various policies, that it issued debit notes from time to time in respect of outstanding premiums, wrote letters requesting for renewal, revision or extension of cover all of which supported the plaintiff’s case that the policies were indeed issued. Each of the debit notes made reference to specific policies. The plaintiff also provided copies of motor vehicle insurance stickers to prove that the defendant’s motor vehicles were duly insured. At no time did the defendant reject the debit notes or indicate that it had not been insured as requested.
  5. A valid insurance contract existed between the parties. The defendant requested to be covered from time to time and the plaintiff provided cover as evidenced by debit notes on terms under its usual policies.
  6. Under section 156(1) of the Insurance Act the insurer would only assume the risk if the premium had been paid and received by him or where the premium had been guaranteed by such person or where a deposit of a prescribed amount was made in advance. The plaintiff’s claim for outstanding premiums belied the fact that the plaintiff assumed risk without payment of any premium.
  7. Section 156(1) of the Insurance Act did not disentitle it from claiming unpaid premiums nor did it state that a contract of insurance entered into by the parties would become void. Additionally, that provision did not prescribe penal consequences. An insurance policy was not invalidated merely for non-payment of premiums unless the policy itself stated so.
  8. Under section 4(1)(a) of the Limitation of Actions Act, an action founded on contract could not be brought after the expiry of six years from the date the cause of action accrued. The plaintiff's cause of action accrued when the debit note was raised. The debit note was a demand for payment and the plaintiff was obliged to sue for the debt six years from the date of that demand. The cause of action did not arise in 2001 when the formal letter of demand was issued to the defendant.
  9. Even though the parties were in discussion, the limitation period was not interrupted by the acknowledgement of the debt under section 24(1) of the Limitation of Actions Act. The acknowledgement had to be in writing and signed by the person making it.
  10. Through a letter dated April 4, 2001, the plaintiff made a demand to the defendant seeking payment of the outstanding premiums. The defendant responded to the letter through its chief accountant by stating that the matter was being handled by their respective chairmen. Those letters did not, by any stretch of imagination, amount to the acknowledgment contemplated by section 24(1) of the Limitation of Actions Act.
  11. Certain debit notes were endorsed as paid. DN 69409 and 69406 were endorsed as paid while DN 69404 was endorsed as awaiting declaration. The defendant would therefore be credited Kshs. 61532/= to its favour.
  12. Under section 26(1) of the Civil Procedure Act, the court had discretion to award and fix the rate of interests to cover two stages - first, the period from the date the suit was filed to the date when the court gave its judgment and second, the period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court could, in its discretion fix. As regards the period prior to filing suit, whether interest was due and the rate thereof was determined by substantive law either under the contract or by custom and usage.

Judgment for the entered for the plaintiff against the defendant.
Orders:-

  1. The defendant was to pay the plaintiff Kshs. 5,371,620 plus interest at court rates from the date of filing the suit on June 23, 2003, until payment in full.
  2. Costs of the suit to the plaintiff.

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