Newsletter Issue 002/2014

Kenya Law Weekly | Issue 002/2014



Kenya Law

Weekly Newsletter


Why petition on unconstitutionality of the Constitutional (Amendment) Bill 2013 was dismissed

Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 others
High Court at Nairobi
Petition 496 of 2013
I Lenaola .J
December 18, 2013
Reported by Andrew Halonyere & Cynthia Liavule
Download the Decision

 

Brief facts

The Petitioner, the Commission for the Implementation of the Constitution, (CIC) is one of the Independent Constitutional Commissions under Chapter Fifteen of the Constitution of Kenya, 2010. It is established under Section 5 of the Sixth Schedule to the Constitution and administered through the provisions of the Commission for the Implementation of the Constitution Act, 2010.

The Petitioner filed this petition challenging the constitutionality of Kenya Gazette Supplement No. 100 (National Assembly Bills No. 15) by which the National Assembly published The Constitutional (Amendment) Bill 2013.They argued that the Bill  sought to amend article 260 of the Constitution in respect of the definition of “State Office” with its  principal objective  to amend article 260 of the Constitution in order to remove the Offices of the Members of Parliament, Members of County Assemblies, Judges and Magistrates from the list of designated State Offices.

Issues

1. Whether the High Court had jurisdiction to determine the petition while the Bill in question  was still at the Parliamentary proceedings stage.
2. Whether there was a threat of violation of the Constitution through the Constitution (Amendment) Bill 2013 which would amend the definition of State Office.

Constitutional Law-Amendment of the Constitution-amendment by Parliamentary initiative-amendment of definition of “State office”- removal of offices of the members of parliament, members of county assemblies, judges and magistrates from the list of designated state offices-whether amendment was a threat of violation of the Constitution-Constitution of Kenya,2010 articles 255,256,260

Jurisdiction-High Court jurisdiction–circumstances where the High court has can interfere with exercise of   legislative authority-whether court could interfere with a Constitutional Amendment Bill at the Parliamentary proceedings stage-whether such interference would amount to breach of the doctrine of separation of powers

Constitution of Kenya, 2010
Article
255(1)A proposed amendment to this Constitution shall be enacted in accordance with Article 256 or 257, and approved in accordance with clause (2) by a referendum, if the amendment relates to any of the following matters—
(a) the supremacy of this Constitution;
(b) the territory of Kenya;
(c) the sovereignty of the people;
(d) the national values and principles of governance mentioned in Article 10 (2) (a) to (d);
(e) the Bill of Rights;
(f) the term of office of the President;
(g) the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies;
(h) the functions of Parliament;
(i) the objects, principles and structure of devolved government;
or
(j) the provisions of this Chapter.

(2) A proposed amendment shall be approved by a referendum
under clause (1) if—
(a) at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum; and
(b) the amendment is supported by a simple majority of the citizens voting in the referendum.
(3) An amendment to this Constitution that does not relate to a matter mentioned in clause (1) shall be enacted either—
(a) by Parliament, in accordance with Article 256; or
(b) by the people and Parliament, in accordance with Article

 

Held

1. Article 165 (3) (d) of the Constitution   granted the High Court jurisdiction to hear any question regarding the interpretation of the Constitution including the determination of the question whether anything said to be done under the authority of the Constitution or any law was inconsistent with or in contravention of the Constitution. The provisions were clear and required no more than a literal interpretation.

2. The doctrine of separation of powers enabled the traditional three arms of government as well as Independent Commissions to function freely without any direction, or control by any other person. The Supreme Court also recognised that Independent Commissions and other arms of government were subject to the Constitution as the supreme law of the land - Re The Matter of the Interim Independent Electoral Commission Constitutional Application No. 2 of 2011

3. The unconstitutional exercise of mandate by Legislature could not be shielded from judicial scrutiny on account of the doctrine of separation of powers. Article 1(3) of the Constitution had made it clear that the state organs upon which sovereign power was vested would perform their functions in accordance with the Constitution. The Constitution was supreme and was thus binding upon all persons and all state organs .The separation of power principle contained in the Constitution was not absolute and the courts as the defenders and protectors of the Constitution had been allowed to interfere where there was a violation or threat of violation of the Constitution- Republic v Independent Electoral & Boundaries Commission and Others ex-parte Cllr Elliot Lidubwi Kihusa and Others Nairobi HC KJR Misc Applic. No. 94 of 2012.

4. Although the doctrine of separation of powers was alive and well entrenched in the Constitution, court could in appropriate cases, properly intrude into the legislative sphere of Parliament and intervene in the circumstances where an applicant could show that there would be no effective remedy available to him or her once the legislative process was complete as the unlawful conduct would have achieved its object in the course of the process. The applicant had to show that the resultant harm will be material and irreversible. Such an approach took account of the proper role of the courts in our constitutional order; while duty bound to safeguard the constitution, they were also required not to encroach on the powers of the executive and legislature-Doctors for Life International v The Speaker of the National Assembly and 11 others.

5. It was not in dispute that Parliament had the powers to amend the Constitution in accordance with article 256.From the provisions of article 255 (3), any amendment not related to the matters mentioned in article 255(1) would be enacted by Parliament or by popular initiative.  However amendments to all the matters mentioned in articles 255(1) had to be by way of a referendum. An amendment to article 260 at face value was not a matter that was subject to the referendum, but could solely be done by Parliament and after public participation.

6. The basic structure of the Constitution required that Parliamentary power to amend the Constitution be limited and the judiciary was tasked with the responsibility of ensuring constitutional integrity, the Executive was tasked with implementation while Independent Commissions served as the “people’s watchdog” in a constitutional democracy. The basic structure of the Constitution, which was commonly known as the architecture and design of the Constitution ensured that the Constitution possessed an internal consistency, deriving from certain unalterable constitutional values and principles.       

7. In framing questions related to the constitutionality of  amendment of article 260, it had to be noted that an individual constitutional provision could not be considered as an isolated clause and interpreted alone. A Constitution has an inner unity, and the meaning of any one part is linked to that of other provisions.

8. It was presumed that all the attendant risks of passing the Bill were also put to the relevant Parliamentary Committee by the Interested Party, the Salaries and Remuneration Commission. The Bill was not yet to be read for the second time nor had it been debated by the Parliamentary Committee.  In article 256, a detailed procedure had been set out including the following important constitutional safeguards in the law making procedure.

9. The Petitioner did not explain in its mandate as a 'watchdog' why it failed to point out all the anomalies and risks it saw in the proposed amendment.  It has also not been explained why it could not advise the relevant institutions of governance including the respondents of the risks of what they may end up doing. By the time the petition was filed and heard, there was still time for it to do so and yet that opportunity was not taken.

10. Although court could stop Parliament  before the second reading stage of the legislative process,  the Bill was incomplete and its language yet to be settled, hence anomaly as to  what would be struck down. Had the Petitioner waited until the Bill was passed and within the thirty days before Presidential assent, Court would have had something tangible to work with.  Court was reluctant  to pass a judgment on the hypothetical issues because the Bill may not receive the two-thirds majority required for it to pass and even if it did, there was time before it is assented to, for the petitioner or any other Kenyan to seek that it should not be allowed to go beyond Parliament, if it is obvious that its contents will ultimately be destructive to the structure of the Constitution.  As it was, the petition was premature .

Petition dismissed
Judgment to be brought to the immediate attention of the Attorney-General for necessary action
Copies of judgment to  be delivered to the Clerks of the National Assembly and Senate respectively for necessary action
Petitioner is at liberty to apply later in the legislative  process should it deem fit


Kenya Law
Case Updates Issue 02/2014
Case Summaries

CIVIL PRACTICE AND PROCEDURE Whether the overriding objective principle enshrined in section 3A and 3B of the Appellate Jurisdiction Act could be applied retrospectively

Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
Civil Appeal No 161 of 1999
Court of Appeal at Nairobi
E M Githinji, R N Nambuye, M K Koome, JJA
October 11, 2013
Reported by Lynette A Jakakimba

Download the Decision

Brief facts:
Abok James Odera t/a A.J Odera & Associates (the appellant) rendered professional services to Kenya Posts and Telecommunications Corporation (the Corporation) as it was then called, amounting to Kshs. 296,019.767.80. The appellant and the respondent executed an agreement via which John Patrick Machira t/a Machira & Co. Advocates (the respondent) was retained to recover Kshs. 296,019,767.80 at agreed professional fee of 8% of the amount intended to be recovered. The respondent filed a suit against Kenya Posts & Telecommunications Corporation, seeking recovery of the sum of Kshs. 296,019,767.80 with interest at the rate of 35% per annum. Kenya Posts and Telecommunications Corporation then filed a defence and made an application seeking to refer the dispute to arbitration, which application was allowed by the High Court. Negotiations were thereafter commenced between the appellant and the Corporation culminating in a consent endorsed by the parties settling the appellant’s claim at Kshs.101, 955,962.88.
The respondent then issued a demand letter to the appellant and subsequently filed a claim recovery of Kshs.23, 681,581.35 being 8% of Kshs.296, 019,769.80, the alleged agreed professional fees with interest at the bank rate of 25% per annum. The appellant paid the respondent Kshs.4, 000,000.00 before filing a defence to the respondent’s claim, on which they made an application seeking orders to strike out the respondents’ suit with costs to the appellant.
The trial court made a ruling in which the appellant’s application for striking out the respondent’s suit was dismissed with costs, but the respondent’s application for summary judgment was allowed. The appellant was aggrieved by that decision and appealed on the grounds that the summary judgment was erroneously based on the amount originally claimed by the appellant of Kshs.296,019,767.80 which the respondent never recovered for the appellant, that the proceedings leading to the entry of summary judgment were a nullity as the learned trial judge erroneously allowed the respondent to argue the application in person before complying with the provisions of order III rule 9(1) of the Civil Procedure Rules and lastly that interest ought not to have been allowed at 25% as prayed for in the plaint as the rate of interest was never catered for in their retainer agreement.

Issues:
  1. Whether the Court of Appeal had jurisdiction to hear matters arising out of decisions made pursuant to the provisions of section 45(2) of the Advocates Act on agreements on fees between advocates and clients.
  2. Whether the Court of appeal had jurisdiction to hear appeals arising from a determination of an application for summary Judgment under order 36 of the Civil Procedure Rules.
  3. Whether the overriding objective principle enshrined in section 3A and 3B of the Appellate Jurisdiction Act could be applied retrospectively.
  4. Whether the lack of inclusion of a memorandum of appearance in a record of appeal was a fatal omission.
  5. Whether a party to a suit who had an advocate on record could be allowed to argue their application in person notwithstanding that they had not filed a notice to act in person.
  6. What amounted to an admission in a claim?
  7. Whether the non-payment of stamp duty on agreements that were subject to payment of stamp duty affected the enforceability of such agreements.

Civil Practice and Procedurejurisdiction – Court of appeal – Court of Appeal jurisdiction to hear matters on disputes arising out of agreements between advocates and clients on remuneration – Court of appeal jurisdiction to hear appeals arising from a determination of an application for summary judgment –Advocates Act section 45 – Civil Procedure Rules order 36

Civil Practice and Procedure overriding objective principle – whether the overriding objective principle could be applied retrospectively – Appellate Jurisdiction Act section 3 A and 3B

Civil Practice and Procedure –representation – personal representation – whether a party to a suit who had an advocate on record could be allowed to argue their application in person not withstanding that they had not filed a notice to act in person – Civil Procedure Rules order III rule 9(1) Read More...

Advocates Act

  1. Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may—
    1. before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;
    2. before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;
    3. before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.
  2. A client may, within six months after the date of any agreement made by virtue of this section, apply by chamber summons to the Court to have the agreement set aside or varied on the grounds that it is harsh and unconscionable, exorbitant or unreasonable, and every such application shall be heard before a judge sitting with two assessors, who shall be advocates of not less than five years' standing appointed by the Registrar after consultation with the chairman of the Society for each application and on any such application the court, whose decision shall be final, shall have power to order—
    1. that the agreement be upheld; or
    2. that the agreement be varied by substituting for the amount of the remuneration fixed by the agreement such amount as the Court may deem just; or
    3. that the agreement be set aside; or
    4. that the costs in question be taxed by the Registrar and that the costs of the application be paid by such party as it thinks fit.
  3. An agreement made by virtue of this section, if made in respect of contentious business, shall not affect the amount of, or any rights or remedies for the recovery of, any costs payable by the client to, or to the client by, any person other than the advocate, and that person may, unless he has otherwise agreed, require any such costs to be taxed according to the rules for the time being in force for the taxation thereof: Provided that any such agreement shall be produced on demand to a taxing officer and the client shall not be entitled to recover from any other person, under any order for the payment of any costs to which the agreement relates, more than the amount payable by him to his advocate in respect thereof under the agreement.
  4. Where any agreement made by virtue of this section is made by the client as the guardian or committee of, or trustee under deed or will for, any person whose property will be chargeable with the whole or any part of the amount payable under the agreement, the advocate shall, before payment thereunder is accepted or demanded and in any event within six months after its due date, apply by chamber summons to the Court for approval of such agreement, and every such application shall be dealt with in accordance with subsection (2).
  5. If, after an advocate has performed part only of the business to which any agreement made by virtue of this section relates, such advocate dies or becomes incapable of acting, or the client changes his advocate as, notwithstanding the agreement, he shall be entitled to do, any party, or the legal personal representatives of any party, to such agreement may apply by chamber summons to the Court to have the agreement set aside or varied, and every such application shall be dealt with in accordance with subsection (2): Provided that, in the case of a client changing his advocate, the Court shall have regard to the circumstances in which the change has taken place and, unless of opinion that there has been default, negligence, improper delay or other conduct on the part of the advocate affording to the client reasonable ground for changing his advocate, shall allow the advocate the full amount of the remuneration agreed to be paid to him.
  6. Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.

Appellate Jurisdiction Act
Section 3A
  1. The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the appeals governed by the Act.
  2. The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
  3. An advocate in an appeal presented to the Court is under a duty to assist the Court to further the overriding objective and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court.
Section 3B
  1. For the purpose of furthering the overriding objective specified in section 3A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—
    1. the just determination of the proceedings;
    2. the efficient use of the available judicial and administrative resources;
    3. the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and
    4. the use of suitable technology.
Civil Procedure Rules
Order 3 rule 9
No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make a binding declaration of right whether any consequential relief is or could be claimed or not.
Order 36
  1. In all suits where a plaintiff seeks judgment for—
    1. a liquidated demand with or without interest; or
    2. the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser,
    where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.
  2. The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed.
  3. Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.
Held:
  1. The Court had jurisdiction to determine the appeal as the proceedings that gave rise to the appeal had not been undertaken by way of a chamber summons directed to and determined by a single High Court Judge sitting with two assessors pursuant to section 45(2) of the Advocates Act. The appeal arose from a determination of an application for summary judgment under order XXXV of the Civil Procedure Rules as it was then. Such decisions were appealable to the Court of Appeal as of right under the provisions of order XLII rule (1) and (2) of the Civil Procedure Rules.
  2. The aim of the overriding objective principle was to enable the courts to achieve fair, just, speedy, proportionate, time and cost saving disposal of cases before it. Its application did not operate to uproot established principles and procedures but to embolden the court to be guided by a broad sense of justice and fairness. There was also a mandatory requirement that the Court of Appeal rules of procedure had to also be construed in a manner which facilitated the just, expeditious, proportionate or affordable resolution of appeals. (Deepakc Manlal Kamami and another versus Kenya Anti-Corruption and 3 others Civil Application No. 152 of 2009)
  3. A ruling in favour of sustaining the current appeal would therefore be in line with the overriding objective principle because if the appeal was struck out on account of incompetence, the striking out order would not finally determine the issues in controversy as between the parties. It would simply restore the parties to the pre-appeal stage before the alleged offending notice of appeal was filed. The net effect of this restoration would be that the appellant would be at liberty to reinitiate the appellate process a fresh. Such an action was likely to lead to a delay in the disposal of the real issues in controversy as between the appellant and the respondent. There would also be considerable costs to be borne by both parties both for these proceedings and the proceedings to be reinitiated. This would also result in the clogging of the justice system as the reinitiated appeal would have to be re-presented to this same Court based on the same set of facts and as soon as it was presented it would start competing for time for disposal.
  4. The lack of inclusion of the memorandum of appearance in the record of appeal could not be used to fault the entire record of appeal considering that entry of appearance or lack of it was not one of the issues in controversy in the High Court nor in the present appeal, as neither the High Court nor the present court was and or had been invited to make a determination on the appellants appearance filed in the High Court. Such an omission could not be held to be so fundamental so as to oust and or override the need to do justice to the parties by disposing off the appeal on its merits.
  5. Order III rule 9(1) Civil Procedure Rules did not make provision for penal consequences for noncompliance with that provision. It simply provided in part that where a party intended to act in person in the cause or matter he had to give a notice stating his intention to act in person. The appellant had also not demonstrated any existence of any prejudice or injustice suffered by reason of the said personal representation by the respondent. Neither had he asserted that the learned trial Judge would have arrived at a contrary decision had the respondent been represented by a counsel. There was therefore no fault in the learned trial Judge’s action in allowing the respondent to argue the application in person not withstanding that he had not filed a notice to act in person under the said Rule.
  6. An admission to a claim had to be premised on the provisions of order XII rule 6 Civil Procedure Rules as it was then (now order 13 rule 2). The pleadings presented by a party against whom the relief was sought had to be those that did not contain specific denials and no definite refusals to admit allegations; demonstration that there were allegations of facts made by one party and not traversed by the other which were deemed to be admitted; demonstration that there had been implied admission of facts inferred from pleadings in instances where the defendant had specifically failed to deal with allegations of fact in the plaint , the truth of which he did not admit or instances where a defendant had evasively denied an allegation in the plaint; demonstration that there were admission of facts discerned from correspondences or documents which were admitted or that there was an oral admission as the rules used the words “or otherwise”.
  7. Although the suit agreement was subject to the Stamp Duty Act and duty was payable on it, failure to comply with the Stamp Duty Act was not fatal to the enforcement of the said agreement. The court was enjoined under section 19(3)(a),(b) and(c) of the said Act not to reject such an agreement in totality, but to receive it and either assess the stamp duty itself and direct that it be paid. Or alternatively the court could impound such an agreement and direct that it be delivered to the stamp duty collector for him to assess the stamp duty payable and demand its payment.
  8. It was now trite that an application for summary judgment was available to a claimant seeking a liquidated demand with or without interest. Under sub rule 2 of order 36, the defendant had leave to show either by affidavit or by oral evidence or otherwise that he should have leave to defend the suit, which had to be discerned from the pleadings filed by the parties. In the present appeal the trial judge was right in finding that the suit agreement was validly executed under section 45(2) of the advocates Act and that the same was enforceable. However the trial Judge made an error in awarding interest as prayed in the plaint at the rates of 25% when the same had neither been provided for in the said agreement or justification made for its claim by the respondent both in the plaint filed, affidavit in support of the application for summary Judgment and or oral highlights in court at the time of the respondents request for the said summary Judgment.
  9. Section 26 (1) of the Civil procedure Act tended to give trial Judges a wide discretion with regard to the award of interest however the exercise of that judicial discretion was not absolute. It had to be exercised judiciously, not with caprice or whim but with reason.
Orders:
  1. Summary Judgment entered in favour of the respondent as against the appellant at the rate of 8% of Kshs.101,955,962.88 total being Kshs.8,156,477.05 less the Kshs.4,000,000.00 earlier paid.
  2. The said sum will carry interest at court rates from the date of filing of the suit till payment in full.
  3. The respondent entitled to half the costs of the suit in the High Court as the claim has been substantially reduced.
  4. The respondent is directed to submit the agreement of 4th March, 1996 to the stamp duty collector for the assessment of the duty payable, which should be paid in the normal manner.
  5. The appellant to have half the costs of the appeal.
ELECTORAL LAW Only political parties have the mandate to prepare party lists for nomination

Beatrice Nyaboke Oisebe v Independent Electoral & Boundaries Commission & 2 others
Civil Appeal No 179 of 2013
Court of Appeal of Kenya at Nairobi
D K Maraga & J W Mwera, JJA
October 11, 2013
Reported by Teddy Musiga

Download the Decision

Brief facts:

The Independent Electoral and Boundaries Commission published the party lists in respect of special seats for the County assemblies in accordance with Regulation 54 of the Elections (General) Regulations 2012. After that the appellant being aggrieved with the decision of IEBC to publish the said names complained to the IEBC Tribunal that she and not the 2nd respondent ought to have been nominated to the Kisii County Assembly. After hearing both parties, the Tribunal dismissed the complaint and held that the respondent was rightly on the list taking into account the priority in the party list as was submitted by the political party. The appellant was dissatisfied with that decision and filed a judicial review reference. The High Court concurred with the Committee’s reason to dismiss the appellant’s complaint saying that the list was submitted by the party which had the core mandate to prepare the lists for party nominations hence this appeal.

Issues:

  1. Who bears the duty to prepare lists for party nomination?

Electoral Law -Membership to the National Assembly & County Assembly – Nomination of members – Political party lists – who bears the duty to prepare lists for party nomination? – Article 90, 177(1)(b)(c) of the Constitution of Kenya, 2010 – Elections Act, section 34(4) Read More...

Constitution of Kenya, 2010

Article 177(1)(b)(c) – any County Assembly consists of –
  1. ………..
  2. The number of special seat members necessary to ensure that no more than two thirds of the memberships of the assembly are of the same gender.
  3. The number of members of marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament.”

Elections Act

Section 34(4) – a political party which nominates a candidate for election under article 177(1)(a) shall submit to the Commission a party list in accordance with article 177(1)(b) and (c) of the Constitution.”

Held:

  1. Section 34 of the Elections Act provided that only the political parties were mandated to propose lists for party nominations for special seats to be submitted to the Independent Electoral and Boundaries Commission in order of priority.
  2. Such lists were not subject to amendment during the term of parliament or County Assembly. It was not demonstrated that there was any default in the nomination process or that IEBC amended the list submitted to it hence the conclusion that the 2nd respondent was validly nominated.

Application dismissed. Costs to the respondents.

ELECTORAL LAW Court’s power to grant orders of scrutiny and recount of votes out of its own motion

Patrick Mweu Musimba v Richard N Kalembe Ndile & 2 others
Civil Appeal No 231 of 2013
Court of Appeal at Nairobi
W Karanja, P O Kiage & K M’inoti, JJA
October 4, 2013
Reported by Teddy Musiga

Download the Decision

Issue:

  1. Whether an election court can make orders of scrutiny and recount of votes out of its own motion

Electoral Law - scrutiny & recount of votes – whether an election court can make orders of scrutiny and recount of votes out of its own motion – Elections Act, section 80(1)(d), 82(1), Election Petition Rules, Rule 33(4) Read More...

Held:

  1. The application of rule 5(2)(b) of the court of appeal rules was well settled. Whereas the court had unfettered discretion to grant orders sought, there were principles on which such discretion had to be based in order for an applicant to succeed;
    1. He had to establish that he had an arguable appeal i.e one that was not frivolous while bearing in mind that an arguable appeal was not one that had to succeed.
    2. He had to establish that if the orders of stay or injunction were not granted, then in the event his appeal or intended appeal succeeded, the same would have been rendered nugatory or in effective.
  2. Rule 33(4) of the Election Petition Rules permitted the courts to order scrutiny in polling stations where the results were disputed. However, sections 80(1)(d) and 82(1) of the Elections Act also allowed the court to order scrutiny and recount of votes suo moto.
  3. Several other persons who were not party to the intended appeal had been cleared to contest in the forth coming by elections and they had expended time and other resources preparing for the same. They would have been grossly prejudiced if the said by elections were to be postponed. The balance of convenience therefore tilted heavily against the applicants.

Application dismissed.

ARBITRATION Scope of stay of proceedings under section 6 of the Arbitration Act

UAP Provincial Insurance Company Ltd v Michael John Beckett
Civil Appeal No 26 of 2007
Court of Appeal at Nairobi
D K Maraga, W Ouko & S Gatembu Kairu JJA
October 4, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka

Download the Decision

Brief facts:

The respondent, having insured his vehicle with the appellant (an insurance company), sought repayment of a claim following the loss of his vehicle. The parties negotiated an agreement under which the insurance company was to pay 6,000,000/=. Upon failure to pay the sum, the respondent filed a suit to enforce the settlement agreement. The appellant then filed an application under section 6 of the Arbitration Act, to stay that suit on the basis that under clause 10 of the insurance policy all differences between the parties were to be referred to arbitration. That application was heard and dismissed by the High Court and is the subject of the appeal herein.

Issues:
  1. Whether a court, after looking into a disputed agreement and being convinced that there was no dispute for referral to arbitration, could grant a stay of proceedings.

Arbitration stay of proceedings – claim for court proceedings to be stayed pending reference of a dispute to an arbitrator – where there had already been an arbitration done and an arbitral award entered in court – where the applicant sought to enforce the arbitral award – where the respondent disputed the award arrived at during arbitration – where the respondent sought a stay of proceedings for the dispute to be referred back to an arbitrator – whether the court could grant a stay of proceedings when there was no longer a dispute to be resolved – Arbitration Act, section 6. Read More...

Arbitration Act
Section 6 (1) A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds

(a)that the arbitration agreement is null and void, inoperative or incapable of being performed; or
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.
(2) …
(3) …

Held:

  1. Section 6(1)(b) of the Arbitration Act provided that a court had to ascertain whether there was a dispute between parties and if so, whether such dispute was with regard to matters agreed to be referred to arbitration.
  2. If the court came to the conclusion that there was a dispute and that it was one that was within the scope of the arbitration agreement, then the court would have to refer the dispute to arbitration as the agreed forum for resolution of that dispute.
  3. If on the other hand the court came to the conclusion that the dispute was not within the scope of the arbitration agreement, then the correct forum for resolution of the dispute was the court.
  4. The words “that there is not in fact any dispute between the parties” that appeared in section 6(1)(b) of the Arbitration Act required the court to consider whether there was in fact a genuine dispute when considering an application for stay proceedings, and so the issue was meritorious, and properly before the High Court.

Appeal dismissed.

CIVIL PRACTICE AND PROCEDURE Circumstances in which withdrawal of a suit against one party abates the whole suit

Ephraim Mbae & 2 Others v Gilbert Kabeere M’Mbijiwe & 2 others
Civil Appeal No 279 of 2007
Court of Appeal at Nyeri
J W Onyango – Otieno, W Karanja & D K Maraga, JJA
June 13, 2013
Reported by Teddy Musiga

Download the Decision

Brief facts:

The appellants sued the respondents jointly and severally for compensation for the damage caused to the appellants suit property land. Before the matter could be heard, the 1st appellant sought to withdraw his complaint against the 1st and 2nd respondents and not the third respondent. The court marked the suits against the 1st and 2nd respondents as withdrawn. The 2nd respondents then filed an application of preliminary objection inquiring whether there was any suit left since the only verifying affidavit that had been sworn by the 1st appellant was purported to have been sworn under the authority of the other two appellants. The court ruled on that preliminary objection by perusing at the draft amended plaint which had been annexed to the application which was yet to be prosecuted and found the same to be frivolous and hence struck out the plaint. It is that ruling that led to the present appeal at the Court of Appeal. Before the appeal could be heard, the 1st appellant died and so his appeal had since abated and the same was marked as such under Rule 99(2) of the Court of Appeal Rules. The remaining appeal was therefore by the 2nd and 3rd appellants.

Issues:

  1. Whether the withdrawal of a suit against one party could abate an entire suit against other parties.

Civil Practice and Procedure - abating of suits – where the 1st appellant withdraws a suit against one respondent – whether the withdrawal of a suit against one party could abate an entire suit against other parties – Court of Appeal Rules, Rule 99(2). Read More...

Held:

  1. The original plaint filed was defective on its face. For instance it lumped together all the plaintiffs’ claims and did not distinguish the claims by all the claimants; the particulars of ownership of the suit properties were all put in one paragraph (paragraph six); the subsequent paragraphs also dealt with the cause of action and the damage said to have been suffered in lump sum; and there was no distinction as to what happened to each of the suit plots, their values and whether the Ksh. 12,000,000/= was in respect of all of them together and whether the values of all of them were equal. Even the prayers were similar. The verifying affidavit was also clearly defective as there was no authority from the other deponents allowing the 1st appellant to swear the same on their behalf.
  2. The lumping up of the properties together in the same paragraphs and prayers meant that one could not extricate one property or prayer from the other. Therefore, once the first appellant withdrew his suit, all other paragraphs in question were withdrawn. In fact, the issue of the defect in the verifying affidavit in this case was secondary. The entire suit collapsed the moment the 1st appellant withdrew the suit as he could not extricate his claim and leave the others in the same plaint. Indeed, the appellants could have realized the same and that could explain why the intended plaint was differently crafted.
  3. Nothing in the original plaint could be salvaged once the 1st appellant withdrew his suit. Allowing the remaining appellants to file a compliant affidavit in respect of an irredeemably defective plaint could not have served any purpose. Notably, the court’s discretion to grant a party leave to file a compliant verifying affidavit after striking out a defective one could only be exercised if and when the plaint sought to be verified was itself sustainable.
  4. Once the 1st appellant withdrew his suit, the entire plaint collapsed and not even the claim by the 1st appellant against the third respondent could be left standing.
  5. The affidavit itself was defective but even if it were to assume that it was not, it had nothing to verify once the plaint/ suit collapsed. There was basically no suit to salvage.

Appeal dismissed. Costs to the 1st and 3rd respondents.

CONSTITUTIONAL LAW Compensation awarded for the 2006 raid at Standard Group's premises

Standard Newspapers Ltd & another v Attorney General & 2 others
Petition No 113 of 2006
High Court of Kenya at Nairobi
Constitutional and Human Rights Division

Mumbi Ngugi, J
October 17, 2013
Reported by Beryl A Ikamari

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Brief facts:

About fifteen minutes past midnight, on March 2, 2006, armed police officers raided offices at I & M Bank Tower in Nairobi, in which the Kenya Television Network (KTN) operated. They destroyed KTN's equipment including broadcasting equipment and consequently shut down the transmissions of KTN. It was alleged that the officers confiscated some equipment and proceeded to arbitrarily arrest, detain, torture and degrade employees at the I & M Bank Tower. On the same morning at around 0120 hours, armed police officers raided Standard Group's premises on Likoni road. They broke down doors and gained access to Standard Group's printing press and seized items from the premises.

Issues:

  1. Whether a raid carried on by police officers at the petitioners' printing and broadcast premises, in which items which included printing and broadcast equipment were seized, was a violation of the right to privacy and freedom from arbitrary search, freedom of expression, freedom from torture, inhuman and degrading treatment and the right to property.
  2. Whether exemplary damages were available as a remedy for a violation of human rights.
Constitutional Law - fundamental rights and freedoms – enforcement of fundamental rights and freedoms – the right to privacy and freedom from arbitrary search, freedom of expression, freedom from torture, inhuman and degrading treatment and the right to property – whether a midnight to early morning raid, allegedly carried on in the interests of national security at a media house's premises, in which printing and broadcast equipment was seized, amounted to a violation of constitutional rights – Constitution of Kenya (Repealed); section 70, 74, 75, 76 & 79, Penal Code (Cap 63); section 66, Criminal Procedure Code (Cap 75); sections 118 & 119, Police Act (Cap 84) (Repealed); section 19 & 20, and Interpretation and General Provisions Act (Cap 2); section 58. Read More...

Held:

  1. Section 76 of the repealed Constitution safeguarded the right to privacy and provided protection from arbitrary searches and unauthorized entry into private premises.
  2. It was alleged that the raid, in question, was prompted by the suspicion that an offence penalized under section 66 of the Penal Code (Cap 63) was being committed. The section criminalized the publication of alarming matter including false statements, rumours, or reports which were likely to cause fear and alarm in the public or to disturb public peace. Such a possibility could be a legal basis for carrying on a search on premises where such publications were suspected to be kept.
  3. The statutory procedure for conducting a search and seizure was provided for in section 118 of the Criminal Procedure Code (Cap 75). Under the provision, for a police officer to lawfully enter and search premises, three requirements would have to be met, namely; first, the officer would need to obtain a search warrant from a judicial officer, after having provided proof on oath as to the existence of reasonable suspicion of the commission of an offence, secondly, the police officer seeking the warrant would bear the burden of establishing that the grant of the search warrant was necessary, and thirdly, the evidentiary material obtained from the search, if the warrant was granted, was to be placed before the court and the court would make determinations on the manner in which such evidence would be disposed.
  4. Additionally, section 19 of the Police Act (Cap 84) (Repealed) provided that a police officer, on the basis of any lawful complaint against any person, could make an application before a magistrate for summons, a warrant, a search warrant or such other legal process.
  5. A search could be carried on by a police officer without a search warrant pursuant to the provisions of section 20 of the Police Act (Cap 84) (Repealed) where the circumstances were such that an application for a search warrant would create a delay that could prejudice investigations. However, in such a context, the police officer would be required to provide identification in the form of a certification of appointment to persons at the premises to be searched and would be required to produce any object seized in the search before a magistrate, in whose jurisdiction the object was seized.
  6. Under section 119 of the Criminal Procedure Code (Cap 75) a search warrant could be issued on any day and executed on any day between the hours of sunrise and sunset but a court could authorize the search to be conducted at any hour.
  7. It would be the duty of any resident or person in charge of a building, concerning which a search warrant had been issued, to allow a police officer free entry and exit from the premises and to afford all reasonable facilities for the carrying on of the search.
  8. After carrying on the search on the petitioners' premises, the officers involved did not produce the seized objects before a magistrate. It was contended on their behalf, that there was no time-frame for the production of seized objects before a magistrate. Where there was no time-frame fixed for the performance of a legal requirement, it would be expected that such performance would be done without unreasonable delay, as provided for in section 58 of the Interpretation and General Provisions Act (Cap 2).
  9. The police officers, contrary to constitutional and statutory requirements, did not apply for a search warrant, did not follow due process in conducting the search and did not produce the material seized in the search before a magistrate, without unreasonable delay. Their activities amounted to a violation of the right to privacy and freedom from arbitrary search.
  10. Police officers had a duty to prevent crime but they were also required to abide by the law and there had to be due process in the carrying on of their mandate.
  11. It would be required that the manner of carrying on a search and seizure would be such that it would not expose persons to further violations of their rights. The right to privacy would not be absolute but it would be balanced against the intended purpose of intrusion.
  12. While it was alleged that during the raid at I & M Bank Tower, some of the petitioners' members of staff were subjected to torture, inhuman and degrading treatment, there was no evidence availed to establish the allegation.
  13. Although it was conceded that the police officers carrying on the raid took away some equipment, the evidence concerning the items that were taken away was contested. The petitioners alleged that they were not allowed to take an inventory while the respondents claimed that an inventory was made but the petitioners refused to sign it. Under the circumstances, a finding relating to a violation of the right to property could not be made.
  14. The conduct of the state towards the promotion and enforcement of human rights had improved considerably and there was no need to punish the state with exemplary damages or to burden the tax payer with a high award of damages.

Petition partly allowed. (The court found that the respondent's actions amounted to an arbitrary search and seizure in which there were violations of the right to privacy and freedom of expression. On the other hand, the court found that there was insufficient evidence to establish violations of the right to property and freedom torture, inhuman and degrading treatment. Additionally, the petitioners were granted compensatory award of Kshs. 5, 000, 000/=).

ELECTORAL LAW Persons who pretend to be illiterate so that they can be assisted to vote liable to prosecution

Fatuma Zainabu Mohamed v Ghati Dennitah & 10 others
Election Petition No 6 of 2013
High Court of Kenya at Kisii
Edward M Muriithi, J
October 7, 2013
Reported By Nelson K Tunoi & Beatrice Manyal

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Issues:

  1. Whether the 1st respondent, Dennitah Ghati was validly elected as the as Women Representative for Migori County on the elections held on 4th March, 2013;
  2. Whether the allegations of irregularities and breaches of election law was proved;
  3. Whether any election offences was proved;
  4. Whether the irregularities and election offences and breaches of election law if proved had affected the results of the election.

Electoral Law - election petition – parliamentary election – petition seeking to nullify and declare void the election of the 1st respondent, Dennitah Ghati as the Women Representative for Migori County on the elections held on 4th March, 2013- Elections Act, 2011 section 83.

Electoral Law - election malpractices – whether the allegations of irregularities and breaches of election law was proved – claims that the IEBC’s officials were giving out more ballot papers and directing voters to vote in a particular way – claims that in certain stations there was over voting with the number of the votes cast exceeding the registered voters – claims that some Form 35 and Form 36 had not been signed by agents and some were signed by more agents than the number of candidates for the particular election – whether the irregularities if proved had affected the results of the election – Elections Act, 2011 sections 75; 76; 77; 79; 80; 82; 86 & 87.

Electoral Law - election offences – whether any election offences was proved – claims that there were persons who voted using dead voter’s cards – claims that the 1st respondent was involved in bribery and intimidation of voters – whether the election offences and breaches of election law if proved had affected the results of the election – Elections Act, 2011 sections 58, 83; Elections (Parliamentary And County Elections) Petition Rules 2013 rules 3; 4; 5; 6(1)(A); 8; 9; 10; 11; 12; 13; 21; 32; 33 & 38; Evidence Act section 33, 63; Penal code section 9. Read More...

Elections Act

section 58 (o) – a person who pretends to be unable to read or write so as to be assisted in voting commits an offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six years or to both.

Held:

  1. The High Court’s jurisdiction to nullify an election existed under section 83 of the Election Act.
  2. Although the petition raised serious constitutional and legal issues relating to elections ranging from intimidation, bribery, proper management of record of votes and free and fair campaigns during electioneering, the evidence offered in proof was mainly if not wholly hearsay. Under section 63 of the Evidence Act, Hearsay was inadmissible save in well-known exceptions under section 33 of the Evidence Act which were not applicable here. Accordingly, much of the petitioner’s case collapsed on the hearsay rule.
  3. Under regulation 79 (6) and (7) of the General Regulations, no election could be invalidated for failure of an agent to sign a statutory document for the absence of an agent at the declaration of results.
  4. The object of agents signing the Form 35 was to confirm the results contained therein. If it was signed by agents in other elections taking place alongside the particular election, there could not be a valid objection to such over-confirmation unless it was shown to have affected the result adversely in some way.
  5. The allegations that persons voted using the Identity cards for dead voters were not proved in evidence and could not stand. There was no direct evidence of the allegation that dead persons were voted for, and the court had to reject the complaint as unproved.
  6. Under section 58 of the Elections Act, It was an offence for a person to pretend to be illiterate so that he could be assisted to vote. Accordingly, Petitioner’s Witness No. 2 who pretended to be illiterate so that he could prove that the officers of the electoral commission were directing the illiterate voters to vote for the ODM candidates was guilty of an offence.
  7. Under section 9 of the Penal Code it mattered not the good intentions or motive with which a criminal act was committed. The witness clearly committed the offence and having heard the witness before the court admit that she pretended to be an illiterate voter, it was the duty of the High Court to report the election offence to the Director of Public Prosecution with a hope only that the court that finally dealt with the matter would consider the unwitty motivation of the witness to catch the officials who were alleged to be making breaches of the election law.
  8. The Petitioner did not produce independent testimony from voters to prove the alleged irregularity of giving more ballot papers and directing voters to vote in a particular way. It was not proved that in certain stations there was over voting with the number of the votes cast exceeding the registered voters.
  9. There were no election offences proved. It was not established that there were persons who voted using dead voter’s cards or that the 1st respondent was involved in any such bribery or intimidation. It was also not shown that the irregularities amounted to substantial non-compliance with the election law set out in the Constitution and the Elections Act or that the irregularities would affect the result of the election as required under section 83 of the Election Act.
  10. The 1st respondent, Dennitah Ghati was at the general election of 4th March 2013 validly elected as the Women Representative for Migori County.

Petition dismissed; costs on the petitioner and IEBC in equal shares at a sum not exceeding Kenya Shillings Two Million (Ksh.2M); Certificate to issue pursuant to section 86 of the Elections Act to the Independent Electoral and Boundaries Commission and the speaker of the National Assembly; A further certificate to issue pursuant to section 87 (1) of the Elections Act to the Director of Public Prosecutions for his further action in relation to the Petitioner’s Witness No. 2 who admitted that she pretended to be an illiterate voter contrary to section 58 (o) of the Elections Act;

LAND LAW Validity of charge instruments executed before enactment of Land Act, 2012

Patrick Waweru Mwangi & another v Housing Finance Co of Kenya Ltd
Civil Suit No 595 of 2012
High Court at Nairobi
J B Havelock, J
October 3, 2013
Reported by Andrew Halonyere & Cynthia Liavule

Download the Decision

Brief facts:
The applicants took out a loan facility with the Respondent Company which was secured by the suit premises. The applicants were indebted to the respondent. However, the main basis upon which the application for temporary injunction was premised was the 1st applicant’s employer’s action to suspend his pay. It was further submitted that the applicant had not deliberately defaulted in the repayment of the outstanding mortgage facility, but due to the actions of his employer, which were the subject matter pending determination in Court. The applicants purported to establish a prima facie case by adducing the provisions of section 103 (1) (c) of the Land Act and 84 of the Land Registration Act. Their claim was that the Land Registration Act, forbade, and indeed barred the respondent from exercising its statutory accrued right of acquisition and disposition of the suit premises, as it was matrimonial property, protected under article 45 of the Constitution of Kenya. It was submitted that the disposition of the suit premises would deprive the applicants of their right to shelter, a home and a safe environment.

Issues:

  1. Whether the provisions of the Land Act, 2012 and Land Registration Act, 2012 applied to charge instruments executed and entered into before their enactment.

Land Law - charge - validity of charge - whether the Land Act, 2012 and Land Registration Act, 2012 could be applied to charge instruments executed and entered into before their enactment - Land Act, section 78, 90, Land Registration Act, 2012 sections 93(2), (3),106,107. Read More...

Land Act, Act 6 of 2012

Section 78 – Application of Part to charges
  1. This Part applies to all charges on land including any charge made before the coming into effect of this Act and in effect at that time, any other charges of land which are specifically referred to in any section in this Part.
  2. References in this Part to “the charged land” shall be taken to mean and include a charged land, a charged lease and sublease and a second or subsequent charge.
Section 90 – Remedies of a chargee
  1. If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
  2. The notice required by subsection (1) shall adequately inform the recipient of the following matters—
    1. the nature and extent of the default by the chargor;
    2. if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
    3. if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;
    4. the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and
    5. the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.
  3. If the chargor does not comply within two months after the date of service of the notice under, subsection (1), the chargee may—
    1. (a) sue the chargor for any money due and owing under the charge;
    2. appoint a receiver of the income of the charged land;
    3. lease the charged land, or if the charge is of a lease, sublease the land;
    4. enter into possession of the charged land; or
    5. sell the charged land;
Land Registration Act, Act 3 of 2012
Section 107 – Savings and transitional provisions with respect to rights, actions, dispositions
  1. Unless the contrary is specifically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act.
  2. Unless the contrary is specifically provided for in this Act or the circumstances are such that the contrary must be presumed to be the case, where any step has been taken to create, acquire, assign, transfer, or otherwise execute a disposition, any such transaction shall be continued in accordance with the law applicable to it immediately prior to the commencement of this Act.

Held:

  1. The savings and transitional provisions with respect to rights, actions, dispositions in relation to land were provided under sections 107 (1) & (2) of the Land Registration Act and sections 106 (1) & (2) of the Land Act of 2012. Both regimes of the law provided that unless the contrary was specifically provided for, any rights, interests, obligations acquired, accrued, or established before the commencement of the Act would continue to be governed by the law applicable. This was the saving transitionary clause for the transition into the new laws with the repeal of all previous land laws. The “contrary provision” aspect that the Land Act provided for was the issue of the matrimonial home.
  2. Section 78 (1) and by extension Part VII of the Land Act, were applicable in the circumstances since the applicants had to establish a prima facie case with probability of success on the issue of protection of matrimonial property under sections 90 (1) as read with sub-section (3), and section 107 (1) & (2) of the Land Registration Act and sections 106 (1) & (2) of the Land Act. Court was empowered under section 91 (2) of the Land Act, to stop the commencement of any proceedings, until a chargee had exhausted all remedies available to it, under section 90 (3).
  3. Under section 103 (1) (c) of the Land Act an application for interim relief could be made by a spouse of the chargor. It did not state that it was incumbent upon the Court to allow such an application. Section 104 of the Land Act, gave the Court complete discretion as to whether or not to grant an order or any relief against the operation of a chargee’s remedy that the circumstances of the case required.
  4. The plaintiffs were not entitled to further interim or status quo orders, despite the suit premises being matrimonial property. The 2nd Plaintiff had all along been aware of the position as regards the property being charged as evidenced in the supporting affidavit to the application.

Application dismissed.

ELECTORAL LAW Affidavit evidence can only be considered by an election court if subjected to cross examination

Moses Wanjala Lukoye v Bernard Alfred Wekesa Sambu & 3 Others
Election Petition No 2 of 2013
High Court at Bungoma
F Gikonyo, J
September 30, 2013
Reported by Teddy Musiga

Download the Decision

Issues:

  1. Whether affidavit evidence not subjected to cross examination could be considered by an election court.
  2. Whether or not there were election malpractices committed by the respondents and whether or not they affected the results of the election.

Electoral Law - election petition – nullification of election petition – electoral offenses – bribery of voters – treating of voters – use of public resources in election campaigns – issuance of two sets of ballot papers to voters – Elections Act, section 62, 64, 68, 83 Read More...

Election Act
Section 83 – No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the results of the election.”

Held:

  1. Election disputes carried remedies of a public character and had to be decided not only between the parties but also with reference to the wider interest of the electorate. Therefore, to strike out the petition for being un procedurally amended would be a negation of the Constitution and would not be prejudicial to the substratum of the case.
  2. Where affidavits had been filed and witnesses failed to attend court for purposes of cross examination, those affidavit evidence remained dead appendages of the record of trial. Therefore, the court could not resort to evidence which had not been tested in cross examination without causing extreme injustice to the parties.
  3. In situations where parties filed affidavits with damaging evidence then failed to call the deponent to testify then the only safeguard in law was either that the court did not consider such evidence at all or exercised its discretion under section 80(1) and (2) of the Elections Act and summoned the witnesses to attend court for cross examination.
  4. Rule 12 of the Elections Rules was deliberately tailored that affidavits filed in an election petition were by persons whom the petitioner intended to call as witnesses. Election petitions were not interlocutory applications but substantive causes, therefore affidavit evidence had to be tested in cross examination unless the parties consented to the admission of the evidence without calling the maker. Therefore, courts would not consider the evidence of witnesses who were not called to testify.
  5. Section 64 of the Elections Act established the offence of bribery. Its material acts were; promise, offering, giving, solicitation, acceptance and receipt of bribe had to be proved. The petitioner did not establish to the required standard of proof that the 1st respondent bribed voters.
  6. Every element of bribery had to be established in relation to the use of CDF cheques’ to bribe and influence voters. The intention to bribe and the act of bribery was essential. That was because issuance of cheques was a statutory obligation and mandate of CDF Committee. Discharge of that function could never be illegal per se simply because it was during campaign period declared by IEBC. Without doubt operations of the CDF activities were not affected by the election campaign period. Therefore, the allegation of bribery by use of CDF cheques was not proved.
  7. Under section 68 of the Elections Act, a candidate who used public resources for the purposes of campaign in an election committed an election offence and had to be proved beyond reasonable doubt. No formal document was tendered to prove ownership of the alleged public school buses as stated in the petition. Likewise, there was no evidence to show that the buses were used by the 1st respondent for campaign purposes except that the petitioner wrote protest letters and that he saw buses ferrying voters. Those voters were neither identified nor called as witnesses. Therefore, that allegation was not proved beyond reasonable doubt and hence failed.
  8. Section 62 of the Elections Act created an offence of treating of voters. That offence required that the petitioner had to prove that the candidate corruptly, for purposes of influencing a voter to vote or refrain from voting for a particular candidate or for any political party at an election, gave or undertook or promised to reward, or provided any food, drinks, refreshment or provision of money etc. to any person for the purpose of influencing that person or any other person to vote or refrain from voting for a particular candidate at the election. The petitioner’s witness testimony of allegedly attending a party did not prove there was a party in the first place let alone any treating of voters as required by law. Corrupt intention to induce and influence voters to vote for a particular candidate or political party was visibly missing in that evidence. The allegation was not proved beyond reasonable doubt and thus failed.
  9. No evidence was tendered to identify the particular voter who was issued with two sets of ballot papers.
  10. The petitioner did not call any evidence to prove that the agents were denied an opportunity to sign or to record reasons for refusal to sign Form 35.
  11. The irregularities which were established by the petitioner in some Form 35 and Form 36 were not widespread or fundamental or shown to be of a nature that would constitute non-compliance with the law which would compel the court to hold that the elections were not conducted in accordance with the principles laid down under electoral laws.

Petition dismissed. Costs to the 1st, 2nd and 3rd respondent – Ksh. 1,500,000/= and 4th Respondent –Ksh. 1,000,000/=

ELECTORAL LAW Extension of voting beyond the gazetted day does not necessarily warrant nullification of an election

Abdikam Osman Mohamed & another v Independent Electoral and Boundaries Commission
Garissa Election Petition No 2 of 2013
High Court at Garissa
A Mabeya J
September 24, 2013
Reported by Njeri Githang’a Kamau & Victor L Andande

Download the Decision

Issues:

  1. Whether failure to sign form 35 by agents could lead to invalidation of the election.
  2. Who had the burden of proof in an election petition?
  3. Whether an election could be nullified where voting in one polling station had been extended beyond the gazetted day.

Electoral Law - election petition – duration of voting exercise – where the voting had been extended beyond the duly gazetted day – claim by the petitioner that such was an irregularity that affected the result – whether the election could be nullified in the circumstances – Election Regulations Election (General) Regulations 2012, regulations 64 & 66.

Electoral Law - election petition – election malpractices and irregularities – where the petitioners alleged that there had been numerous malpractices and irregularities – whether the election could be nullified where such malpractices and irregularities were proved – Elections Act, section 83.

Electoral Law - signing of election forms – where Form 35 had not been signed by some of the agents – whether in the circumstances the election could be invalidated Read More...

Election (General) Regulations 2012
Regulation 79(6) – the refusal or failure of a candidate or an agent to sign a declaration form under sub-regulation (4) or to record the reasons for their refusal to sign as required under this regulation shall not by itself invalidate the results announced under sub-regulation 2(a).”

Elections Act
Section 83 – No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that non-compliance did not affect the result of the election.”

Held:

  1. In an Election Petition, the burden was on the Petitioner to prove, not only non-compliance with the electoral law, but also that the non-compliance affected the results of the election. Accordingly, the Petitioners not only had the burden of proof to establish that there were violations, omissions, malpractices and irregularities in the conduct of the Garissa gubernatorial election, but also had to illustrate to the court that the said violations, omissions, malpractices and irregularities, if any, affected the result of the election. It was after the Petitioners had established the foregoing that the burden shifted to the respondents, to establish that the results were not affected.
  2. To invalidate the entire gubernatorial election due to the fact that voting took place in one polling station past the duly gazetted voting day would be misdirecting punishment to voters in Garissa County who had properly exercised their right to vote under article 38 of the Constitution. The voters had stayed in long queues to cast their votes, and had their votes counted, entered into a declaration form and publicly declared.
  3. Invalidating the election based on one polling station would only serve to disenfranchise the voters based on an act of omission by an electoral officer, over whose conduct the voters had no control. Further, no cogent evidence was adduced to show that the non-compliance or allowing people to vote a day later was premeditated and carried out by the presiding officers, with the intent of causing prejudice to any particular candidate or change the election’s outcome or to render it uncertain.
  4. There was no evidence or allegation made that persons who were not entitled to vote did vote as a result of the extended opening hours or that such opening of the polling station created an opportunity for electoral malpractice. It was the Petitioners burden to establish this fact which they failed to do.
  5. Breaking of ballot boxes was a serious offence. However, proving the breakage alone was not enough to establish whether the irregularity affected the results. When such an anomaly was noted, the recommended action was to assess the contents of the ballot box to ascertain whether there was tampering with the contents. This could only be done through a scrutiny.
  6. The mere failure to sign the form 35 did not go to the root of the validity of the figures on the form. There had to be more or other accompanying irregularities in addition to such failure, for an election of an unsigned Form 35 by agents to be invalidated.
  7. In cases of allegations of election malpractices and other irregularities; the Petitioners were not only required to establish that such electoral malpractices and irregularities actually occurred but that they were of such magnitude that they substantially and materially affected the results of the election. The primary consideration in an election Petition was whether the will of the electorate had been affected by the irregularities.
  8. Irregularities and errors alluded to had to be weighed against the entire exercise of elections. The bulk of the Petitioners complaints had been unsuccessful. The Petitioners did not provide credible evidence to show that the irregularities complained of and established were so substantial as to have affected the final results of the election.

Petition dismissed with costs to the Respondents. The costs capped at Kshs.2.5Million. The 1st and 2nd Respondent entitled to a maximum of Kshs.1Million whilst the 3rd Respondent entitled to a maximum of Kshs.1.5Million.


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