Weekly Newsletter 003/2021



Kenya Law

Weekly Newsletter


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Kenya Law
Case Updates Issue 004/2021
Case Summaries  

   
CONSTITUTIONAL LAW Failure investigate and prosecute sexual and gender based violence related crimes is a violation of the rights to life; the prohibition of torture, inhuman and degrading treatment; and the security of the person

Coalition on Violence Against Women &  11 others v Attorney General of the Republic of Kenya & 5 others; Kenya Human Rights Commission(Interested Party); Kenya National Commission on Human Rights &3 others(Amicus Curiae) [2020] eKLR
Petition No. 122 of 2013
High Court at Nairobi
W Korir, J
December 10, 2020
Reported by Kakai Toili

Download the Decision

Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to life, right to freedom and security of the person, freedom from torture and cruel, inhuman or degrading treatment or punishment and the right to appropriate remedy – claim that the police failed to investigate rape reports and also failed to make arrests during the 2007/2008 post-election violence period -  factors to consider in determining a claim for violation of constitutional rights - factors to consider in determining whether the Government was liable for civil disorder - whether the failure to investigate and make arrests amounted to a violation of the victims constitutional rights – Constitution of Kenya, 2010, articles 23, 156, 157 and 165; Constitution of Kenya (Repealed) sections 70, 71 and 74; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, article 16; International Covenant on Civil and Political Rights, 1966, articles 6, 7 and 9; Universal Declaration of Human Rights, 1948, articles 3 and 5; African Charter on Human and People’s Rights, 1981, articles 4, 5 and 6; Protocol to the African Charter on Human and People’s Right on the Rights of Women in Africa, 2003, article 4.

Constitutional law – application of the Constitution – retrospective application of the Constitution - whether article 22 of the Constitution on the right to institute public interest litigation could apply retrospectively – whether the right to information under the Constitution of Kenya, 2010, could be applied to requests to information on the 2007/2008 post-election violence which predated the Constitution - Constitution of Kenya, 2010, article 22 and 35; Constitution of Kenya (Repealed) section 84.

Constitutional Law – fundamental rights and freedoms – freedom from torture and cruel, inhuman or degrading treatment or punishment - elements and the nature of torture - whether forced circumcision amounted to rape.

Constitutional Law – fundamental rights and freedoms – right to information - what were the factors to consider in determining a violation of the right to information – Constitution of Kenya, 2010, article 35.

Civil Practice and Procedure – res judicata – elements of res judicata - what were the elements required to prove that a case was res judicata.

Brief Facts

Following the announcement of results of the December 2007 general election, widespread violence and demonstrations ensued. During that period of unrest several women, men and children were subjected to forms of sexual and gender based violence (SGBV). The petitioners brought the instant petition against the respondents for their failure to anticipate and prepare adequate and lawful policing responses to the anticipated civil unrest that contributed to the SGBV, and the failure to provide effective remedies to the victims of SGBV which violated the fundamental rights of the 5th to 12th petitioners and other victims. The rights alleged to have been violated included; the right to life; the prohibition of torture, inhuman and degrading treatment; the right to security of the person; the right to protection of the law; the right to equality before the law and freedom from discrimination; the right to information; and the right to remedy and rehabilitation.

The petitioners brought the instant action against the 1st and 4th respondents for among others the failure to train State security agents (police) in lawful methods of conducting law enforcement operations to prevent the commission of crimes by the police; failure to take adequate security measures, particularly the failure to plan and prepare law enforcement operations during PEV to protect victims from SGBV; and failure to supervise police and to prevent and punish crimes committed by police. It was claimed that the 5th and 6th respondents’ staff and or employees failed to provide emergency medical services, particularly where the perpetrators were public officials such as police officers.

The petitioners contended that the 1st, 2nd, 3rd and 4th respondents had failed to investigate or take meaningful steps towards ensuring the redressing of gross human rights violations perpetrated against the victims. The petitioners therefore sought among others; a declaratory order to the effect that the right to life, the prohibition of torture, inhuman and degrading treatment, the right to security of the person, the right to protection of the law, the right to equality and freedom from discrimination, the right to information, and the right to remedy were violated in relation to the petitioners 5 to 12 (both inclusive) and other victims of SGBV during the PEV, as a result of the failure of the Government of Kenya to protect those rights;

Issues:

  1. Whether article 22 of the Constitution of Kenya, 2010, on the right to institute public interest litigation could apply retrospectively.
  2. What were the elements required to prove that a case was res judicata?
  3. What were the elements and the nature of torture and whether forced circumcision amounted to rape?
  4. What were the factors to consider in determining a claim for violation of constitutional rights to life and property by the Government?
  5. What were the factors to be considered in determining whether the Government was liable for civil disorder?
  6. Whether the failure by the police to investigate a rape report and make arrests amounted to a violation of the right to life, security of the person and protection from torture, inhuman and degrading treatment or punishment and right to appropriate remedy.
  7. Whether the right to information under the Constitution of Kenya, 2010, (Constitution) could be applied to requests to information on PEV which predated the Constitution.
  8. What were the factors to consider in determining violation of the right to information?  Read More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 22(1)

Every person has the right to institute court proceedings claiming the right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Article 35
1. Every citizen has the right of access to—

(a)  information held by the State; and
(b)
  information held by another person and required for the exercise or protection of any right or fundamental freedom.

2.  ….
3. The State shall publish and publicise any important information affecting the nation.

Held:

  1. There was no equivalent of article 22 of the Constitution of Kenya, 2010 (Constitution), under the repealed Constitution and according to section 84 of that Constitution; proceedings could only be instituted for the violation of rights on behalf of a detained person. Moreover, the words used in article 22(1) did not contain suggestions of retrospectivity. The right to institute public interest litigation only existed in the context of the Bill of Rights of the Constitution. Therefore, article 22 and the right to institute proceedings on behalf of all victims of SGBV could not apply retrospectively.
  2. The elements required to prove that a case was res judicata were:
    1. The suit or issue was directly and substantially in issue in the former suit.
    2. The former suit was between the same parties or parties under whom they or any of them claimed.
    3. The parties were litigating under the same title.
    4. The issue was heard and finally determined in the former suit.
    5. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue was raised.
  3. From a perusal of the pleadings in Petition No. 273 of 2011, the International Commission of Jurists-Kenya Chapter was a petitioner in the matter and the 1st respondent in the instant case was the 1st respondent therein. The interested party in the instant case was also the petitioner in that matter, hence it was not litigating under the same title.
  4. There was no similarity of parties in the previous suit and the instant suit. The court was alive to the principle that parties could not evade the application of the doctrine of res judicata to their case by litigating under different names. 
  5.  Beyond the issue of parties, res judicata was concerned with direct and substantive issues. Although the issue of SGBV was also pursued in the previous matter, it did not form the crux of the petition as it did in the instant petition. Furthermore, the subject matters of the two petitions differed since the previous petition was exclusively concerned with persons living in IDP camps, whereas the instant matter concerned persons who were generally victims of SGBV which occurred during PEV. The respondents had not averred nor proved that the claims specific to the 5th to 12th petitioners had been previously addressed by a court of competent jurisdiction. The instant matter was not res judicata and even though two of the parties were litigating under the same title, the issues in the instant petition were not directly or substantively in issue in the previous petition.
  6. The right to life, the right to protection from torture and right to security of the person were guaranteed under sections 70, 71 and 74 of the repealed Constitution, and were also protected by articles 3 and 5 of the Universal Declaration of Human Rights (UDHR); articles 6, 7 and 9 of the International Covenant on Civil and Political Rights (ICCPR); articles 4, 5 and 6 of the African Charter on Human and People’s Rights (Banjul Charter);  and article 4 of the Protocol to the African Charter on Human and People’s Right on the Rights of Women in Africa (Maputo Protocol).
  7. According to the Human Rights Committee’s General Comment No. 31 on the ICCPR at paragraph 8, the State had an obligation to prevent violations by State actors and non-State actors. In other words, the State had to protect citizens from threats to their rights.
  8. The State had to respect the right to life by refraining to engage in conduct which would arbitrarily deprive the right. Sexual violence was recognised as an infringement on the right to life under article 4 of the Maputo Protocol as it expressly stated that States, in protecting and realising the right of women to life, and the integrity and security of their person, should enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex.
  9. Rape had elements of torture which were: the severe infliction of pain or suffering for a number of purposes including intimidation or discrimination. However, torture was perpetrated by State actors or with their acquiescence, consent or instigation. The UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) in its General Recommendation No. 19 acknowledged that gender-based violence violated the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment and the right to liberty and security of person.
  10. There was no reason why the definition of torture should not be extended to cases of forced circumcision. The elements of inhuman and degrading treatment or punishment described in article 16 of the Convention of Torture were present in such a case.
  11. Article 9 of the ICCPR placed an obligation on the State to protect the right to security of the person of non-detained persons. The 6th, 5th and 9th petitioners testified to having been raped by GSU officers. The 5th and 9th petitioners did not report the incidents to the police. However, they were certain that they identified their violators as GSU officers due to their uniform. Their testimonies demonstrated that State actors were involved in acts of sexual violence against the citizenry, and were directly responsible for the violations of their rights. The State could not escape liability, there was a violation of the right to life, protection from torture, inhuman and degrading treatment and right to security of the person of the 5th, 6th and 9th petitioners.
  12. The 7th, 8th, 10th, 11thand 12th petitioners who were assaulted by members of the public had unfortunately not provided evidence to the effect that the persons who assaulted them did so with the instigation, consent or acquiescence of a public official or other person acting in an official capacity.
  13. The police relinquished their responsibility to investigate the 8th petitioner’s report fully and arrest all the three men who had raped her. That was a prime example of how the State could be liable for the violation of right by third parties as once the petitioner reported the rape, the police had a duty to investigate her claim and protect her from further harm. There was no averment by any of the respondents that the Director of Public Prosecutions (DPP) made a determination that the evidence provided to the police by the 8th petitioner was insufficient to mount a prosecution against the two suspects who were not arrested by the Police.
  14. The State had a duty to maintain law and order including the protection of life and property. However, as a general rule, that duty was owed generally to the public at large and not specifically to any particular person within Kenya. For a person to succeed in a claim for alleged violation of constitutional rights, it had to be demonstrated that there existed a special relationship between the victim and the police on the basis of which there was assurance of police protection, or where, for instance the police had prior information or warning of the likelihood of violence taking place in a particular area or against specific homes but failed to offer the required protection. In such cases, therefore the State could be held liable where violations of the rights protected and guaranteed in the Bill of Rights were proved even when those violations were occasioned by non-State actors provided that the duty of care was properly activated.
  15. For the Government to be liable for civil disorder;-
    1. the victim had to prove that the Government owed him a specific duty of care;
    2. that the police ignored impeccable information of an impending attack against specific person(s);
    3. that the police negligently or deliberately failed to offer protection to the victims and their property;
    4. that the police or other Government agencies played a part in the creation of state of insecurity or did some acts that rendered the victims more vulnerable or increased their danger.
  16. As evidenced by the statements of the victim-petitioners, the State did indeed take into account any intelligence that it could have received on impending violence and put in place police officers to maintain peace. The true magnitude of the 2007-2008 PEV could not have been foreseen or avoided, due to its sudden and drawn-out nature. It was impossible to have a police officer protect every Kenyan citizen from harm, particularly due to the low ratio of police officers to the population of Kenya. As such, the State and the police did what they could to protect the population at large, even if the petitioners themselves did not benefit from that protection.
  17. Regarding the 5th, 6th, and 9th petitioners who were assaulted by State actors, their rights to life, the security of the person, and protection from torture were infringed by the actions of the State actors which, in line with national, regional and international law, were regarded as actions by the State itself. Additionally, the 8th petitioner who was assaulted by non-State actors was owed a duty of care by the police to investigate her report and make arrests, and when they failed to do so they in effect violated her rights to life; security of the person; and protection from torture, inhuman and degrading treatment or punishment.
  18. The 7th, 10th, 11th, and 12th petitioners who were assaulted by non-State actors failed to show that the police failed to exercise reasonable diligence in the circumstances of their individual cases. 
  19. The UDHR and ICCPR provided for the right to protection of the law in articles 6 and 16 respectively. The right to remedy from the High Court was guaranteed under section 84 of the repealed Constitution. That right was also protected under article 8 of the UDHR, article 3 of the ICCPR, and article 25 of the Maputo Protocol.
  20. The petitioners had failed to put forward any evidence to the effect that they were denied or precluded from accessing and benefiting from medical and psychological rehabilitative services provided by the respondents. The Government had not failed to provide the appropriate medical and psychological services to the petitioners. Indeed, where there was alleged denial of treatment by one public institution, the same was quickly availed by another public facility.
  21. To determine whether the petitioners’ right to remedy was violated, one had to look at their individual cases. Because the 5th, 6th and 9th petitioners were violated by police officers and no investigations, arrests or prosecutions had been initiated, the State was liable for violating their right to appropriate remedy which in such cases would include compensation.
  22. The State was liable for the violation of the rights of the 8th petitioner who was violated by non-State actors, and the State failed to investigate her claim even though she identified her assailants. Therefore, the 8th petitioner was entitled to appropriate reparations from the State including compensation. Other victims of post-election violence were compensated without necessarily seeking court orders. For instance, those who lost their homes were resettled. There was no reason why those who suffered sexual violence and could establish that they were indeed violated could not as well be compensated.
  23. The 7th, 10th, 11th and 12th petitioners were assaulted by civilians and did not report their assaults to the police. The police could not be faulted for failing to investigate and prosecute cases of violence which they did not know of.
  24. The State owed a duty to the victims of 2007-2008 PEV to investigate the violations of their rights, prosecute the perpetrators, and provide appropriate remedies to the victims. The State fulfilled its obligations to some victims of PEV by investigating their claims and compensating them for their losses. However, for some of the victim-petitioners who were equally victims of PEV, their claims were not investigated fully and no prosecutions (where there was evidence) were carried out. There had been discrimination towards the 5th, 6th, 8th and 9th petitioners as they were owed a duty of care by the State to not only refrain from causing harm to them but also to pursue those whose acts or omissions caused them harm, and to compensate them appropriately.
  25. The right to information, although protected under the Constitution of Kenya, 2010, and international human rights law, was not guaranteed under the repealed Constitution. The events of the 2007-2008 PEV pre-dated the promulgation of the Constitution of Kenya, 2010, and therefore its provisions could not be applied retrospectively. Requests for information, if any, could have occurred after the coming into force of the Constitution of Kenya, 2010, hence making its provisions applicable.
  26. None of the witnesses had raised any complaints against the State or Mbagathi District Hospital regarding the alleged denial of treatment records. The individual witnesses had not made any claim that they attempted to access information or medical documents from Mbagathi District Hospital and were not provided with their documents. In the absence of any proof that any Government medical facility withheld medical records from the 5th to 12th petitioners, there had not been a violation of the right to information.
  27. Article 35(1) and (3) of the Constitution provided for the right to information. Additionally, article 232(1)(f) of the Constitution listed transparency and provision to the public of timely and accurate information as part of the values and principles of public service. There existed a right to information which was protected under the Constitution and regarded as an integral principle and value of public service.
  28. The petitioners had not claimed nor produced evidence to the effect that they requested the Government to release any information or reports on the cases of SGBV during PEV. For that claim to succeed it would have been necessary for the petitioners to have made a request to the respondents for such information, and that the request was ignored or refused.
  29.  According to the Joint Declaration on Access to Information by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression (2004), States were required to pro-actively publish a range of information which was in the public’s interest in the absence of a request. Additionally, according to paragraph 4 of the Intern-American Juridical Committee’s Principles on the Right of Access to Information, public bodies were required to proactively and routinely disseminate information on their functions and activities including on activities which would affect the public. Those instruments provided an interesting perspective on the matter. They appeared to breathe life into the provisions of article 232(1)(f) of the Constitution.
  30. The petitioners failed to provide proof that they sought information from the respondents and that their requests were denied or ignored. Therefore, they had not proven that their right to information was infringed by the acts or omissions of the respondents.
  31. In the absence of any complaints made to the 3rd respondent by the victim-petitioners, and given the short period the 3rd respondent had to investigate those violations before the instant proceedings precluded it from doing so, the 3rd respondent had not failed to undertake investigations into claims of violation of human rights by police officers during the 2007-2008 PEV.
  32. Sexual violation just like any other violation of human rights and freedoms should be compensated. Sexual violence carried with it both physical and mental pain.
  33. The 1st and 2nd respondents were independent offices respectively established under articles 156 and 157 of the Constitution, and were not subject to the direction or control of any other person or authority. The 4th respondent was only subject to the instructions of the DPP. Although the court was granted jurisdiction under article 23 of the Constitution to enforce and uphold the Bill of Rights through the issuance of appropriate remedies, that jurisdiction should be exercised in compliance with the other provisions of the Constitution. The court was also alive to its jurisdiction under article 165 of the Constitution.
  34. It had not been established that the respondents had failed to discharge their constitutional and statutory mandates to the other SGBV victims of PEV who were not before the court to warrant issuance of orders directing the respondents to perform their duties in a given manner. The remedies that would be provided to the successful victim-petitioners would be sufficient in the circumstances of the instant case.
  35. On the issue of the compensation for economic losses, the petitioners had failed to explain how they arrived at the figure presented, or any proof of their earnings before the PEV. Without any reference to how the petitioners had computed that amount, the claim could not succeed. The same position applied to the prayer for future medical treatment. No evidence was adduced to support the claim.
  36. The general trend was to avoid award of exemplary or punitive damages in public law claims. That principle was grounded on two reasons namely that the State had improved in its respect of human rights and that the taxpayer should not be burdened with heavy awards in claims touching on the public purse. The court therefore declined to award the estate of the deceased exemplary or aggravated damages.

Petition partly allowed.

Orders

  1. A declaratory order was issued to the effect that the failure to conduct independent and effective investigations and prosecutions of SGBV-related crimes during the post-election violence was a violation of the positive obligation on the Kenyan State to investigate and prosecute violations of the rights to life; the prohibition of torture, inhuman and degrading treatment; and the security of the person of the 5th, 6th, 8th and 9th petitioners.
  2. A declaratory order was issued to the effect that the right to life; the prohibition of torture, inhuman and degrading treatment; the right to security of the person; the right to protection of the law; the right to equality and freedom from discrimination; and the right to remedy were violated in relation to the 5th, 6th, 8th and 9th petitioners during the 2007-2008 post-election violence, as a result of the failure of the Government of Kenya to protect those rights.
  3. The 5th, 6th, 8th and 9th petitioners were each awarded Kshs. 4 million as general damages for the violation of their constitutional rights.
  4. The 5th, 6th, 8th and 9th petitioners were awarded costs of the suit against the 1st and 4th respondents. The other parties were to meet their own costs of the proceedings.
JURISDICTION

The period spent in custody by an accused person should be taken into account during the imposition of sentences, other than the sentence of death

Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR
Petition No. 15 of 2020
High Court at Machakos
January 18, 2021
GV Odunga, J
Reported by Kakai Toili

Download the Decision

Jurisdiction – jurisdiction of the High Court – supervisory jurisdiction - whether the High Court’s supervisory jurisdiction could be invoked despite the dismissal of an appeal by a person sentenced in disregard of section 333(2) of the Criminal Procedure Code - Constitution of Kenya, 2010, article 165; Criminal Procedure Code, Cap 75, section 333(2).

Statutes – interpretation of statutes – interpretation of section 333(2) of the Criminal Procedure Code - what was meant by taking into account the period that an accused had spent in custody before they were sentenced as provided for in section 333(2) of the Criminal Procedure Code - Criminal Procedure Code, Cap 75, section 333(2).

Criminal Law – sentencing – consideration of time spent in custody – claim that a trial court failed to consider time spent in custody during sentencing contrary to section 333(2) of the Criminal Procedure Code – effect of - what were the options available to a person convicted and the sentence imposed did not take into account the period spent in custody – Constitution of Kenya, 2010, articles 23(1), 27(1), (2), (4) and (5), 165(3)(b) and (6);Criminal Procedure Code, Cap 75, section 333(2) and 362.

Criminal Law – sentencing – resentencing - claim that a trial court failed to consider time spent in custody during sentencing contrary to section 333(2) of the Criminal Procedure Code - factors to consider in determining the sentence to be imposed on an accused during resentencing – what was the effect of imposing a sentence without adhering to the law - Criminal Procedure Code, Cap 75, section 333(2).

Criminal Law – sentencing – remission of sentences - whether the date when a prisoner was first admitted in prison and not the date of the subsequent resentencing was the proper date to be considered for purposes of remission – Constitution of Kenya, 2010, article 20(3)(b); Prisons Act, Cap 90, section 46(2).

Brief Facts:

The petitioners filed the instant petition claiming grave violations of their fundamental rights and freedoms. Those rights included the right to a fair trial and to benefit from the least prescribed sentence as guaranteed under article 50(2)(p) of the Constitution. The petitioners claimed that under article 25(c) of the Constitution the right to a fair trial could not be limited.

The petitioners claimed that they were persons whose sentences had not taken into account the time spent in custody while undergoing trial as required under sections 333(2) of the Criminal Procedure Code while others had not benefited from remission as provided for under section 46(2) of the Prisons Act. They therefore claimed that they were serving excessive sentences far from the intention of the sentencing courts. The petitioners further claimed that their right to equal benefit and equal protection of the law under article 27(1) of the Constitution of Kenya, 2010 (Constitution) had been violated.

Issue:

  1. What was meant by taking into account the period that an accused had already spent in custody before they were sentenced as provided for in section 333(2) of the Criminal Procedure Code?
  2. What was the effect of imposing a sentence without adhering to the law?
  3. What were the options available to a person convicted and the sentence imposed did not take into account the period already spent in custody?
  4. Whether the High Court’s supervisory jurisdiction could be invoked despite the dismissal of an appeal by a person sentenced in disregard of section 333(2) of the Criminal Procedure Code.
  5. What were the factors to be considered by a court in determining the sentence to be imposed on an accused during resentencing?
  6. What was the effect of failing to take the cumulative period of custody into account during sentencing?
  7. Whether the date when a prisoner was first admitted in prison and not the date of the subsequent resentencing was the proper date to be considered for purposes of remission. Read More...

Relevant provisions of the law
Criminal Procedure Code
Section 333(2)

(1)    A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.
(2)
    Subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

Held:

  1. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that the accused had spent in custody before they were sentenced. Taking into account the period spent in custody meant considering that period so that the imposed sentence was reduced proportionately by the period already spent in custody. It was not enough for the court to merely state that it had taken into account the period already spent in custody and order the sentence to run from the date of the conviction because that amounted to ignoring altogether the period already spent in custody. The proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it meted out to the accused person.
  2. A person on whom a sentence had been imposed which did not comply with section 333(2) of the Criminal Procedure Code had recourse to the court since he would by that fact been subjected to serve a sentence which did not comply with the law. Such a person risked serving a sentence which was in excess of the one lawfully prescribed thus being deprived of his liberty contrary to the law.
  3. Imposing a sentence without adhering to the law hence subjecting the convict to serve a sentence that was over and above that provided for, was depriving him of his freedom without a just cause.
  4. A holistic consideration of articles 23(1), 165(3)(b) and (6) of the Constitution showed that the court had the power to redress a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights and one such violation was the denial or threat of denial of freedom without a just cause such as where the sentence that a person risked serving was in excess of the sentence lawfully prescribed one by failing to comply with section 333(2) of the Criminal Procedure Code. The court was therefore empowered to do so in the exercise of its supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, as long as that person, body or authority was not a superior court. Therefore, a person who was faced with such a situation could well invoke the revisionary powers of the High Court pursuant to section 362 of the Criminal Procedure Code. An appeal was not necessary in those circumstances. Unless the sentence was substituted by the appellate court, the same position applied.
  5. Where the appellate court considered the appeal and disallowed it without interfering with the sentence, the decision on sentencing remained that of the trial court and if that sentence was imposed in contravention of the provisions of section 333(2) of the Criminal Procedure Code, nothing barred the court in the exercise of its constitutional mandate pursuant to article 165 of the Constitution from redressing the situation.
  6. Notwithstanding a dismissal of an appeal, a person sentenced in disregard of section 333(2) of the Criminal Procedure Code was not disentitled from invoking the court’s supervisory jurisdiction to consider whether or not the sentence imposed was lawful. While it could be argued that in so doing the court would be interfering with the decision of the appellate court which in effect affirmed the decision of the trial court, that would not be the position where an appeal was simply dismissed without the sentence being reviewed. Even if the same was reviewed, the jurisprudence in Kenya held to the contrary.
  7. Section 333(2) of the Criminal Procedure Code enjoined the trial court to take into account the period spent in custody where the person sentenced had, prior to such sentence, been held in custody. Section 333(2) did not create a distinction between initial sentencing and a resentencing undertaken pursuant to a court order.
  8. In undertaking a resentencing, the court was enjoined to find out the period for which the convict was in custody prior to the date of resentencing including the period he served pending his trial and after his initial conviction and sentencing. That whole period had to be taken into account in computing the sentence to be imposed on him in handing down the appropriate sentence during resentencing. Unless that was done, the resentence was likely to fall foul of article 50(2)(p) of the Constitution.
  9. To fail to take the cumulative period of custody into account would amount to treating those who were earlier convicted differently from those who were being convicted based merely on the date of their conviction contrary to the provisions of article 27(1), (2), (4) and (5) of the Constitution.
  10. Under section 46 of the Prisons Act, all convicted criminal prisoners were, upon their admission entitled to be credited with the full amount for remission to which they would be entitled at the end of their sentence if they lost no remission of sentence. It would seem that the prison authorities were interpreting the word admission to apply from the date of resentencing. To do so would mean that the prisoner was presumed to have been free prior to the date of the resentencing which was not the position.
  11. To interpret section 46(2) of the Prisons Act in a way that did not take into account the period served before resentencing deprived the prisoner of his right to the benefit of the least severe of the prescribed punishments for an offence and also amounted to discrimination based merely on the ground that the prisoner was in custody prior to his resentencing. In determining admission for the purposes of section 46(2), the relevant date for the purposes of remission was the date when the prisoner was first admitted in prison and not the date of the subsequent resentencing. The court was alive to the provisions of article 20(3)(b) of the Constitution which enjoined the court in applying the provisions of the Bill of Rights, to adopt the interpretation that most favoured the enforcement of a right or fundamental freedom.
  12. The court did not have the benefit of perusing the files before the trial court in order to determine whether what had been pleaded in the petition was correct. In any case, the issue of remission was an issue for the exercise of discretion by the prison authorities. In those circumstances, the best course would be for the petitioners to take the necessary steps in their respective matters in order to redress the wrongs. It could take some time to do so but experience had repeatedly shown that short-cuts invariably resulted in being more expensive and time-absorbing in the end and a short-cut in breach of a fundamental rule creating or occasioning remedial action could not escape the stigma of delay.

Petition partly allowed; no order as to the costs.

Orders

  1. A declaration was issued that trial courts were enjoined by section 333(2) of the Criminal Procedure Code, in imposing sentences, other than sentence of death to take account of the period spent in custody.
  2. A declaration was issued that those who were sentenced in violation of the section 333(2) of the Criminal Procedure Code were entitled to have their sentences reviewed by the High Court in order to determine their appropriate sentences.
  3. A declaration was issued that section 333(2) of the Criminal Procedure Code applied to the original sentence as well as the sentence imposed during resentencing.
  4. A declaration was issued that in determining admission by the prison authorities for the purposes of section 46(2) of the Prisons Act, the relevant date was the date when the prisoner was first admitted to prison upon conviction and not the date of resentencing.
  5. Any review of the sentences was to be considered on a case-to-case basis.
CIVIL PRACTICE AND PROCEDURE

Whether it was mandatory for a draft decree to be submitted to the other party for approval

Masinde Muliro University of Science and Technology v Alfatech Contractors Limited; Kenya Commercial Bank Limited & another (Garnishee) [2021]eKLR
Civil Suit No. 237 of 2014
High Court at Kakamega
W. Musyoka
January 22, 2021
Reported by Chelimo Eunice

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Civil Practice and Procedure – decrees and orders – meaning of a decree - preparation of decrees and orders - extraction of decrees – who ought to prepare a decree - whether it was mandatory for a draft decree drafted by one party to be submitted to the other party for approval before submitting it to the registrar – where the decree as drawn was inconsistent with the parent judgment – whether such a decree would stand - Civil Procedure Rules, 2010, order 21, rule 8.

Brief facts:

The claimant’s application sought to stay and set aside a decree, warrants of attachment and an order dated November 1, 2018. The claimant averred, among others, that the respondent was required by law to procure a decree, upon which an application for execution could be mounted. That the respondent ought to have submitted to it a draft decree for approval, that the decree as drawn was inconsistent with the judgment and that the application for execution was founded on an illegal erroneous decree that had misrepresented the amounts due to the respondent. It was further argued that the order to garnishee the claimant’s bank account was founded on an illegal decree.

The respondent opposed the application averring that it was not mandatory that a draft decree be submitted to the advocates for the claimant for approval as the court had power to approve a draft order, that the principal sum had not been cleared in full and that it had not misrepresented the amounts due to it from the claimant.

Issue:

  1. What was a decree?
  2. Who ought to prepare a decree?
  3. Whether it was mandatory for a draft decree drafted by one party to be submitted to the other party for approval before submitting it to the registrar.
  4. What was the effect of a decree that was drafted in an inconsistent manner with the parent judgment?  Read More...

Relevant provisions of the Law

Civil Procedure Rules:

Order 21, rule 8;

“(2) Any party in a suit at the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.

(3) If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.

(4) On any disagreement with the draft decree any party may file the decree marked as “for settlement” and the registrar shall thereupon list the same in chambers before the judge who heard the case or, if he is not available, before any other judge, and shall give notice thereof to the parties.”

Held:

  1. The decree and the application for execution were founded on an incorrect calculation of the amount due to the respondent from the claimant as the respondent omitted from the calculation the sum of Kshs. 585, 573.50, being withholding tax that the claimant had paid. Going by calculations that took that fact into account, the only amount outstanding was Kshs. 286, 000.00, being the interest accrued.
  2. The claimant’s affidavit was filed without leave. It was sneaked into the record. It, however, carried material that shed light on the whole matter. It was not struck out in the wider interests of justice, taking into account that the claimant was a public entity and that article 159 of the Constitution encouraged the court to go to the root of the matter rather than dwell on technicalities.
  3. According to order 21, rule 8 of the Civil Procedure Rules (Rules), a draft decree would be generated by either party. The provisions did not make it mandatory for the draft to come from the parties. A decree was an instrument issued from the court, duly executed by the registrar and bore the seal of the court. It was, therefore, a court instrument, issued at the instance of the court, as a purport of the outcome of court proceedings as set out in the judgment of the court.
  4. In an ideal situation, the decree ought to be generated by the court, but order 21, rule 8 of the Rules gave the parties an opportunity to initiate the process. Where they chose to initiate it, it became mandatory that the draft be placed before the other party for approval. Whether it was approved by the other party or not was not to be an obstacle to the finalization of the matter, the registrar would still take charge and generate the decree. Part of the reason for letting the parties draft the decree was that they would be possessed of information, as they did in the instant case, that ought to assist in preparing the draft, which information the registrar could not be privy to.
  5. The bottom line was that the final decree or order was a document that was approved and signed by the registrar. The registrar had the final say in the process. Whether the initial draft had emanated from one of the party was neither here nor there, for ultimately, it had to be approved by the registrar, and be issued at the hand of the registrar.
  6. In the event of any disagreement between the parties on the content of the decree or order, as extracted, the matter was placed before the judge, with notice to the parties, for adjudication by the court, either without or after hearing the parties. Where the provisions in order 21, rule 8 of the Rules were followed to the letter, there would be no need for a formal application.
  7. The respondent did not reckon a payment that the claimant had made in the process of extracting the decree. Consequently, the decree extracted had errors, which had to be addressed before execution could be embarked upon.

Application allowed.

Orders:

  1. The decree extracted from the orders made on September 26, 2018 cancelled.
  2. Parties ordered to start the process of extracting the decree afresh, by following all the steps contemplated in order 21, rule 8(2)(3)(4) of the Civil Procedure Rules.
  3. The execution proceedings founded on the decree that had been cancelled were accordingly halted.

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