Weekly Newsletter 002/2017

Weekly Newsletter 002/2017



Kenya Law

Weekly Newsletter


Court declares Section 194 of the Penal Code(dealing with the offence of criminal defamation) Unconstitutional
Jacqueline Okuta & another v Attorney General & 2 others
Petition No 397 of 2016
High Court at Nairobi
J M Mativo, J
February 6, 2017
Reported by Teddy Musiga
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Constitutional Law constitutionality of statutes – constitutionality of the offence of criminal defamation - claim challenging the constitutionality of the offence of criminal defamation provided for under section 194 of the Penal Code – whether the offence of criminal defamation was consistent with freedom of expression secured under article 33 of the Constitution of Kenya, 2010 - whether or not criminal defamation under section 194 of the Penal Code was reasonably justifiable in a democratic society – Constitution of Kenya, 2010, article 33; Penal Code, section 194.

Constitutional Law – fundamental rights and freedoms – freedom of expression – limitation of rights – limitation of the freedom of expression – claim challenging whether the offence of criminal defamation was a justifiable limitation to the freedom of expression guaranteed under article 33 of the Constitution of Kenya, 2010 - whether the scope of limitations of rights under article 24 of the Constitution of Kenya, 2010 protects public interest as well as individual interest – Constitution of Kenya, 2010 articles 24 and 33; Penal Code, section 194.

Constitutional Lawinterpretation of statutes – doctrine of proportionality as used in determining validity of statutes – tests for determining proportionality of statutes – claim challengingthe offence of criminal defamation as not being proportionate with the freedom of expression and speech as guaranteed by the Constitution of Kenya, 2010.

Brief Facts:
The Petition was triggered by the arraignment of the 1st & 2nd Petitioners in Kwale and Nairobi law courts respectively. They were each charged with the offence of criminal defamation under section 194 as read with section 36 of the Penal Code for allegedly making and or publishing defamatory statements concerning the complainant in the said cases. The Petitioners thus filed the instant petition challenging the constitutionality of the criminal defamation law in section 194 of the Penal Code. They contended that the said section unjustly violated the freedom of expression by imposing sanctions on the civil wrong of defamation. They also sought a declaration that the continued enforcement of section 194 by the second respondent (Director of Public Prosecution) against the Petitioners was unconstitutional.

Issues:
  1. Whether or not criminal defamation under section 194 of the Penal Code was reasonably justifiable in a democratic society; and/ or whether it was consistent with freedom of expression secured under article 33 of the Constitution of Kenya, 2010.
  2. Whether the scope of limitations of rights under article 24 of the Constitution of Kenya, 2010 protects public interest as well as individual interest.
  3. Whether the offence of criminal defamation under section 194 of the Penal Code fell into the category of permissible derogations contemplated in article 24 of the Constitution of Kenya, 2010, being a provision designed to protect the reputations, rights and freedoms of other persons.

Section 194 of the Penal Code provided that;
“Any person who, by print, writing, painting or effigy or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel”.


Held:
  1. The freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions and views with complete freedom and by resorting to any available means of publication; subject again to such restrictions as could be legitimately imposed under article 24 of the Constitution of Kenya, 2010.
  2. The reasonable restrictions are those which are meant to prevent the expression of thought which is intrinsically dangerous to public interest and would not include anything else. The enabling power in article 24 of the Constitution to impose reasonable restrictions on the right conferred by article 33 of the Constitution was intended to safeguard the interests of the state and the general public and not of any individual, and therefore article 24 of the Constitution could not be regarded as the source of authority for section 194 of the Penal Code which made defamation of any person an offence.
  3. Criminal defamation aimed to protect individual interests while the limitations under article 24 of the Constitution of Kenya, 2010 sought to protect public interest as opposed to individual interest.
  4. The limitations provided under article 24 of the Constitution of Kenya, 2010 had to be read together, in the context of the entire article, the purposes and principles of the Constitution and the fact that the limitations ought not to be construed as limiting the right or fundamental freedom unless the provision was clear and specific about the right or freedom to be limited and the nature and extent of the limitation could not limit the right or fundamental freedom so as to derogate it from its core or essential content.
  5. Defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. It had to be kept in mind that fundamental rights were conferred in the public interest and defamation of any person by another person was unconnected with the fundamental right conferred in the public interest, and therefore section 194 of the Penal Code had to be construed outside the scope of article 24 of the Constitution of Kenya, 2010 which largely aimed at protecting public interest.
  6. Defamation of a private person by another person could not be regarded as a “crime” under the constitutional framework and hence, what was permissible was the civil wrong and the remedy under civil law.
  7. Section 194 of the Penal Code which stipulated defamation of a private person by another individual had no nexus with the fundamental rights conferred under article 33 of the Constitution of Kenya, for article 33 of the Constitution was meant to include the public interest and not that of an individual, and therefore the said constitutional provision could not be the source of criminal defamation. The reasons behind that argument were two;
    • the common thread that ran through the various grounds engrafted under article 33(2) (a) – (d) were relatable to the protection of the interest of the state and the public in general and the word, “defamation” had to be understood in that context; and
    • the principle of noscitur a sociis (the meaning of a word may be known from the accompanying words), when applied, “defamation” remotely could not assume the character of public interest or interest of the crime in as much a crime remotely had nothing to do with the same.
  8. It could not be gainsaid that the offence of criminal defamation operated to encumber and restrict the freedom of expression enshrined in article 33 of the Constitution.
  9. A common way of determining whether a law that limits rights is justified is by asking whether the law is proportionate. Although it was commonly used by the courts to test the validity of laws that limit constitutional rights, proportionality tests could also be a valuable tool for law makers and others to test the justification of laws that limit important (even if not constitutional) rights and principles. Proportionality refers to the set of rules determining the necessary and sufficient conditions for a limitation on a constitutionally protected right by a law to be constitutionally protected.
  10. There were four sub components of proportionality; a limitation of a constitutional right could be constitutional permissible if;
    • It was designated for a proper purpose;
    • the measures undertaken to effectuate such a limitation were not rationally connected to the fulfilment of that purpose;
    • the measures undertaken were necessary in that there were no alternative measures that could similarly achieve that same purpose with a lesser degree of limitation; and
    • There needed to be a proper relation (proportionality stricto sensu or balancing) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right.
  11. A key aspect of whether a limitation on a right could be justified was whether the limitation was proportionate to the objective being sought. Even if the objective was of sufficient importance and measures in question were rationally connected to the objective, the limitation could still not be justified because of the severity of its impact on individuals or groups.
  12. Proportionality is a fluid test which requires those analysing and applying law and policy to have regard to the surrounding circumstances, including recent developments in the law, current political and policy challenges and contemporary public interest considerations.
  13. The test for determining whether a restriction was appropriate had to be one of proportionality as used in international, regional and comparative human rights jurisprudence. A proportionality test was appropriate if it preserved rights, provided a framework for balancing competing rights and enabled other important public concerns such as national security and public order to be duly taken into account.
  14. The practical consequences that would ordinarily flow from a complaint of criminal defamation were as follows; the accused person would be investigated and face the danger of arrest. That would arise even where the alleged defamation was not serious and where the accused had an available defence to the charge. Thereafter, if the charge was prosecuted, he/ she will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he/she will also have incurred a sizeable bill of costs which will not normally be recoverable.
  15. The foregoing tribulations were not peculiar to the offence of criminal defamation and would potentially be encountered by an accused person charged with any criminal offence. However, what was distinctive about criminal defamation, though not confined to that offence, was the stifling or chilling effect of its very existence on the right to speak and the right to know. That was the more deleterious/ harmful consequence of its retention in the Criminal Procedure Code.
  16. The overhanging effect of the offence of criminal defamation was to stifle and silence free flow of information in the public domain. That in turn could result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.
  17. The chilling effect of criminalizing defamation was further exacerbated by the maximum punishment of two years imprisonment impossible for any contravention of section 194 of the Penal Code. That penalty was clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The accomplishment of that objective certainly could not countenance the spectra of imprisonment as a measure that it was reasonably justifiable in a democratic society.
  18. Another very compelling reason for the eschewing resort to criminal defamation was the availability of an alternative civil remedy in the form of damages for defamation. That afforded ample compensatory redress for injury to one’s reputation. Thus, the invocation of criminal defamation to protect one’s reputation was unnecessary, disproportionate and therefore excessive and not reasonably justifiable in an open democratic society based on human dignity, equality and freedom.
  19. In any event, article 24 (e) clearly provided for the relation between the limitation and its purpose and whether there were less restrictive means to achieve that purpose. Thus, the civil remedy was a less restrictive alternative and it was available.
  20. The harmful and undesirable consequences of criminalizing defamation, viz the chilling possibilities of arrest, detention and two years’ imprisonment, were manifestly excessive in their effect and unjustifiable in a modern democratic society like Kenya.
  21. There was an appropriate and satisfactory civil remedy that was available to combat the mischief of defamation. Put differently, the offence of criminal defamation constituted a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it was absolutely unnecessary to criminalise defamatory statements. It was therefore inconsistent with the freedom of expression guaranteed by article 33 of the Constitution of Kenya, 2010.
Petition allowed.
  • Declaration that section 194 of the Penal Code was unconstitutional and invalid to the extent that it covered offences other than those contemplated under article 33(2) (a) – (d) of the Constitution of Kenya, 2010.
  • Declaration that any continued enforcement of section 194 of the Penal Code by the 2nd Respondent against the petitioners would be unconstitutional and/ or in violation of their fundamental rights to freedom of expression guaranteed under article 33 (1) (a) – (c) of the Constitution of Kenya, 2010.
Kenya Law
Case Updates Issue 002/2017
Case Summaries

CONSTITUTIONAL LAW

Court Declares Sections 295, 296(1)and (2) and 297(1) and (2) of the Penal Code Imprecise, Broad and Vague in Scope to Enable an Accused Person to Adequately Prepare and Conduct His/Her Defence

Joseph Kaberia Kahinga & 11 others vs. The Honourable Attorney General
Petition 618 of 2010
High Court at Nairobi
Lesiit, L Kimaru, & S N Mutuku, J
September 15, 2016
Reported by Emma Kinya Mwobobia and Ian Kiptoo

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Constitutional Law-fundamental rights and freedoms-freedom from cruel, inhuman and degrading punishment-where the Petitioners were sentenced to death as a mandatory sentence- whether the mandatory death sentence violated the Petitioners right to life under article 26 and freedom from torture, inhuman and degrading treatment under article 25 of the Constitution-Constitution of Kenya, 2010, articles 25 & 26.

Criminal Procedure-sentencing-mitigation-where an accused person was not subjected to mitigation before sentencing-whether accused persons who were found guilty for capital offences were entitled to mitigation before sentencing in respect of their right to fair trial -Penal Code, sections 216 & 329.

Statutes-interpretation of statutes-constitutionality of statutory provisions-where provisions of an act were ambiguous in setting out an offence clearly-claim that sections 295, 296(1) and (2) and 297(1) and (2) of the Penal Code violated the Petitioners right to fair trial-whether sub-sections of sections 296 and 297 were ambiguous as it did not set out any aggravating circumstances to distinguish between robbery and aggravated robbery-Constitution of Kenya, 2010, article 50(2);Penal Code, sections 296 (1) &(2); 297 (1) & (2).

Words and Phrases-definition-assault-an unlawful attempt or offer, on the part of one man, with force or violence, to inflict a bodily hurt upon another. An attempt or offer to beat another, without touching him; as if one lifts up his cane or his fist in a threatening manner at another; or strikes but misses him-Black’s Law Dictionary Free Online Legal Dictionary.

Words and Phrases-mitigation-definition Alleviation; abatement or diminution of a penalty or punishment imposed by law. ‘Mitigating circumstances’ are such as do not constitute a justification or excuse of the offence in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability-Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed.

Words and Phrases-definition-torture-the infliction of intense pain to the body or mind to punish, to extract a confession or information or to obtain sadistic pleasure-Black’s Law Dictionary, 9th Edition.

Words and Phrases-definition-cruel and unusual punishment-punishment that is torturous degrading, inhuman, grossly disproportionate to the crime in question or otherwise shocking to the moral sense of the community-Black’s Law Dictionary, 9th Edition.

Brief facts
The Petitioners were separately charged with various offences under section 296 (2) of the Penal Code (robbery with violence), section 297 (2) of the Penal Code (attempted robbery with violence) and section 203 as read with section 204 of the Penal Code (murder). They were tried by different courts, convicted and sentenced to death. Their respective appeals were dismissed by the High Court and the Court of Appeal and the convictions and death sentences confirmed.
The Petitioners submitted before the Court that their rights and fundamental freedoms were breached in that they were sentenced to serve a sentence, which, first, constituted inhuman and degrading punishment under article 25(a) of the Constitution of Kenya, 2010 (Constitution), and second, which was arrived at after the court had failed to take into consideration their respective mitigations. In addition, the Petitioners argued that the fact that sections 296(2) and 297(2) of the Penal Code did not give room for aggravating or mitigating circumstances to be considered, violates their constitutional right to be sentenced to serve a prison term or at least benefit from the least severe sentence as provided under article 50(2)(p) of the Constitution.
Furthermore, The Petitioners argued that there was no distinction apparent in the ingredients that constituted the charge of attempted robbery with violence contrary to section 297(2) and attempted robbery contrary to section 297(1) of the Penal Code and that if such differentiation existed, then some of the Petitioners who were convicted of the more serious charge of attempted robbery with violence contrary to section 297(2) of the Penal Code would have been convicted of the lesser charge of attempted robbery with violence contrary to section 297(1) of the Penal Code.
However, the Respondent contended that that the death sentence was not unlawful and was allowed under article 26(3) of the Constitution which provided for limitation of the right to life under written law. Furthermore, it was contended that the law authorized the death penalty where a person was convicted of a capital offence. In addition, the Respondent opposed the Petition stating that the Petitioners were properly tried, convicted and sentenced and that under article 50(6)(b) of the Constitution, no new and compelling evidence had become available to clothe the Court with jurisdiction to hear the Petition.

Issues:
  1. Whether the sub-sections of section 297 of the Criminal Procedure Code were ambiguous and conflicted to an extent that-
    (a) they did not distinguish the degree of offence committed under section 297(1) & 297 (2) in regards to attempted robbery and attempted robbery with violence.
    (b) It violated the Petitioners right to fair trial to be informed of a charge, with sufficient detail to answer it under article 50(2)(b) of the Constitution.
  2. Whether the sub-sections of section 296 of the Penal Code were ambiguous in that they did not set out any aggravating circumstances to distinguish between robbery and aggravated robbery.
  3. Whether there was a conflict between sections 297 (2) and section 389 of the Penal Code in regards to the punishment to be ordained when a person was found guilty of committing an inchoate offence of attempted robbery with violence.
  4. Whether the mandatory death sentence violated the Petitioners right to life under article 26 and freedom from torture, inhuman and degrading treatment under article 28 of the Constitution.
  5. Whether accused persons who were found guilty of capital offences were entitled to mitigation before sentencing in respect of their right to fair trial.
  6. Whether a court had the discretion to vary the mandatory death sentence imposed by law.Read More...

Relevant Provisions of the law
Penal Code Chapter 63
Section 295

Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

Section 296

1. Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
2. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

Section 297(2)

(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

Section 389

Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.

Held:

  1. Jurisdiction means the authority which a court has to decide matters that are before it or take cognizance of matters presented in a formal way for its decision. The limits of that authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. The question whether the Court had jurisdiction would depend on the understanding of the issues brought before the Court by the Petitioners.
  2. The issues canvassed by the Petitioners raised constitutional questions whose effect was to properly invoke the jurisdiction of the Court. The Petitioners’ case was predicated upon, inter alia, articles 22(1) and 23(1) of the Constitution. Therefore, the Court had noted that it had jurisdiction, in particular, to hear and determine whether the Petitioners’ rights and fundamentals freedoms which could not be limited as provided under article 25(a) and (c) had been violated.
  3. Prior to the promulgation of the Constitution of Kenya, courts grappled with the principles of interpretation that it ought to have taken into consideration when interpreting constitutional or statutory provisions. A holistic interpretation of the Constitution meant interpreting the Constitution in context. It was contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation did not mean an unbridled extrapolation of discrete constitutional provisions in each other, so as to arrive at a desired result.
  4. In interpreting the Constitution, a purposive approach had to be employed which had evolved to resolve ambiguities in meaning. Where the literal words used in a statute created an ambiguity, the Court was not to be held captive to such phraseology. Where the Court was not sure of what the legislature meant, it was free to look beyond the words themselves, and consider the historical context underpinning the legislation. Therefore, in interpreting an Act of Parliament, the court had to ensure that the Act conformed to the Constitution.
  5. Most of the Petitioners were charged and convicted prior to the promulgation of the Constitution. It might have been argued that the Court could not delve into an issue that arose before the commencement of the Constitution. Nevertheless, since the Petitioners were complaining that they were serving an illegal sentence, given that they ought to have been sentenced to a less severe sentence, the Court had requisite jurisdiction to address their complaints.
  6. The offence of attempted robbery under section 297 of the Penal Code was an offence that fell under the broad category of offences referred to as inchoate offences. Inchoate offences were sometimes referred to as incomplete offences, or acts involving a tendency to commit a crime or consisted of acts that indirectly pointed to participation in the commission of a crime. An inchoate offence was therefore an offence which the person convicted of did not actually complete the commission of, to necessitate such person to be charged with the commission of the actual offence.
  7. For the prosecution to secure a conviction for the offence of attempted robbery with violence contrary to section 297(1) of the Penal Code, the following ingredients had to be established –
    1. That the accused assaulted the victim with the intent to steal.
    2. That immediately before or immediately after the time of the assault, used or threatened to use actual violence to any person or property;
    3. In order to obtain the thing intended to be stolen;
    4. Or to prevent or overcome resistance of it being stolen.
    5. The offence was aggravated under Section 297(2) if, in addition to the above ingredients:
    6. The offender was armed with dangerous or offensive weapon or instrument, or
    7. was in company with one or more person(s), or
    8. If at or immediately before or immediately after the time of the assault, he wounded, beat, struck, or used any other personal violence to any person.

    The cited ingredients to establish the offence of attempted robbery with violence contrary to section 297(2) of the Penal Code were considered disjunctively: the offence was established when one of the ingredients is proved

  8. The Penal Code had not defined what assault was. Nevertheless, sections 250 – 253 had set out instances of assault. The gravity of the assault increased with the circumstances defined upon which the assault occurred.
  9. A careful reading of section 297(1) and section 297(2) of the Penal Code asserted that a person might have been charged under section 297(1) and another under section 297(2) of the Penal Code on the basis of the same facts and circumstances. The difference, if convicted, would be in regard to the sentence that was meted out on such a convicted person. While the convict charged under section 297(1) faced a maximum sentence of seven (7) years imprisonment, the convict charged under section 297(2) faced a death sentence.
  10. A reading of the two sections disclosed lack of sufficient particularity to distinguish between an offence committed under section 297(1) and that which was committed under section 297(2) of the Penal Code. In both instances, there was either threat or the use of actual violence. Section 297(2) had provided that the offence of attempted robbery with violence was aggravated when the offender was armed with a dangerous or offensive weapon or instrument or was in company with one or more person(s) or actually assaulted and wounded the victim of the attempted robbery with violence at the time of the commission of the crime.
  11. The sub-sections of section 297 of the Penal Code were ambiguous and not distinct enough to enable a person charged with either offences to prepare and defend himself due to lack of clarity on what constituted the ingredients of the charge. Article 50(2) of the Constitution proclaimed what constituted a fair trial when a person was charged with a criminal offence. it was apparent that a person charged under Section 297(2) of the Penal Code faced prejudice because he could, as was the case of some of the Petitioners, be convicted and sentenced to death where the same facts and circumstances might have constituted facts which supported the charge for the lesser offence of attempted robbery with violence contrary to section 297(1) of the Penal Code.
  12. Generally, inchoate offences attracted less severe punishment than completed offences. That was the general trend in the Penal Code. For instance, under section 220 of the Penal Code a person convicted of the charge of attempted murder was liable to be sentenced to serve a maximum term of life imprisonment while if a person was charged with committing murder under section 203 of the Penal Code, the sentence was death.
  13. The exception to the general rule was the punishment provided under section 297(2) of the Penal Code in respect of the offence of attempted robbery with violence. It might have been argued that a person who set out to commit the offence of robbery with violence, and was prevented from completing the offence, was a dangerous criminal who should have faced the same punishment as the person who actually committed the offence. There was validity in the argument. That was more so if it was taken that such a person had the intention or the requisite mens rea to commit the actual offence and that such attempted robbery with violence might have resulted in grievous harm or death of the victim(s).
  14. The definition of what constituted the offence of attempted robbery with violence under sections 297(1) and 297(2) of the Penal Code ought to have been sufficiently set out in detail so that there was no ambiguity in regard to the degree of the gravity of the offence. As it was, the ambiguity and lack of clear distinction as to what constituted an offence under section 297(1) and section 297(2) of the Penal Code violated an accused person’s right to a fair trial in that he could not be informed of the charge and with sufficient detail to be able to answer to it, as envisaged under article 50(2)(b) of the Constitution.
  15. The lack of clarity and distinction in the two sub-sections under section 297 of the Penal Code had resulted in some situations where the decision to charge an accused person under either of the sub-sections of section 297 of the Penal Code would have in some instances been deemed to be arbitrary, whimsical or capricious. There had to be certainty in the law that created offences. Articles 50(2)(b) of the Constitution demanded that such laws ought to have been clear so that a person accused of committing such offence might have known in sufficient detail the nature and the scope of the charge that he was facing.
  16. In situations of ambiguity as was apparent in the plain reading of section 297(1) and section 297(2) of the Penal Code, Parliament would be required to enact appropriate amendments to the said sections of the Penal Code to set out in sufficient detail the degrees of gravity in the case of attempted robbery with violence with the attendant aggravation in the punishment to be meted out. In addition, Parliament would also have to make appropriate interventions to resolve the apparent conflict that existed between section 297(2) and section 389 of the Penal Code in regard to the punishment to be ordained when a person was found guilty of committing an inchoate offence of attempted robbery with violence as it would not be the first time that courts had urged Parliament to address the issue of the conflict. There was ambiguity and conflict in the definition of the offences under Section 297(1) and (2) of the Penal Code, and the punishment to be meted out under Section 389 of the Penal Code.
  17. The distinction between the offence of robbery and aggravated robbery lay in the definition and additional ingredients and sentence that made the latter a more serious offence. However, from the description, there was a common ingredient in both sub-sections. Under sub-section (1) the words used were used or threatened to use actual violence to any person or property. Under sub-section (2) the words used were wounded, beat, struck or used any other personal violence to any person.
  18. With regard to the third element on the use of violence, it could result in a person being convicted under section 296(2) of the Penal Code and therefore, sentenced to death. On the other hand, the same element of use of violence could be applied in convicting an accused person under the offence of robbery under section 296(1) of the Penal Code which attracted a maximum penalty of 14 years’ imprisonment. There was clearly an issue for consideration.
  19. A reading of section 296(1) and section 296(2) of the Penal Code was clear that a person could be charged under section 296(1) and another under section 296(2) of the Penal Code on the basis of the same facts and circumstances. The difference, if convicted, would be in regard to the sentence that would be meted out on such a convicted person. While the convict charged under section 296(1) faced a maximum sentence of fourteen (14) years imprisonment, the convict charged under section 296(2) faced the death sentence.
  20. Robbery connoted not simply a theft but a theft preceded, accompanied or followed by the threat or the use of actual violence to any person or property in order to obtain or retain stolen property, whether it was robbery or aggravated robbery, the same ingredients constituted the offences under the sub-sections of section 296 of the Penal Code. There was nothing under section 296(2) of the Penal Code which distinguished aggravated robbery from robbery under sub-section (1) of section 296 of the Penal Code which only set out the penalty.
  21. The definition of what constituted robbery was found in section 295 of the Penal Code. The sections did not set down any aggravating circumstances that would create particularity and clarity as to what constituted robbery and what constituted aggravated robbery. There was nothing under sections 295 and 296 of the Penal Code to guide the courts, and indeed the investigators and prosecutors, in assessing which sets of facts and circumstances would qualify to constitute either of the two offences.
  22. There were additional ingredients under section 296(2) of the Penal Code which, if any one was proved, would be sufficient to establish the offence of aggravated robbery. A close scrutiny of those three additional ingredients did not make the situation any different. The first ingredient was if one was armed with a dangerous or offensive weapon or instrument; the second, if one was in company with one or more other person(s); and, third, if one wounded, beat, struck or used any other personal violence to any person.
  23. The third ingredient of establishing aggravated robbery was superfluous as under section 295 of the Penal Code, the element of use of actual violence was included as an ingredient of the offence termed robbery. That implied that only the first two ingredients remained as the additional ingredients, either one of which if proved would sustain a charge of robbery under section 296(2) of the Penal Code. It therefore meant that once it was established that the person committed the offence in the company of one or more person(s), or alternatively that he was armed with a dangerous or offensive weapon or instrument, then aggravated robbery was established.
  24. What constituted a dangerous weapon had not been defined, and that was an issue which had drawn conflicting interpretations from various courts. While some instruments or weapons would be obvious without the need of defining them, there were others which were not as obvious. For instance, under the definition of dangerous or offensive weapon, it included at one extreme a stone or stick and the other extreme a firearm. The law was not clear what circumstances would constitute robbery under section 296(1) of the Penal Code, and what constituted robbery under Section 296(2) of the Penal Code.
  25. It was evident that the two sub-sections under Section 296 of the Penal Code disclosed a lack of sufficient particularity and clarity to distinguish between an offence committed under section 296(1) and that which was taken to be committed under section 296(2) of the Penal Code. In both instances, there were common ingredients of theft accompanied by either threat or the use of actual violence. The way the two sub-sections had been applied by the actors in the criminal justice system left it open for the subjective application of sections 295 and 296(1) and (2) of the Penal Code at the discretion of either investigators, prosecutors and the Courts which was wholly undesirable, and which made its application arbitrary, capricious and unpredictable.
  26. A comparison of sections 296(1) and (2), and 297(1) and (2) of the Penal Code with provisions from the Indian Penal Code and the Nigerian Criminal Code Act Illustrated the offence of robbery was defined and graduated from the most innocuous to the gravest, and different sentences provided the attendant categories of the offence of robbery in line with the gravity of the offence.
  27. The sub-sections of sections 296 and 297 of the Penal Code were ambiguous and not distinct enough to enable a person charged with either of the offences to prepare and defend himself due to lack of clarity on what constituted the ingredients of either charge. Article 50(2) of the Constitution proclaimed what constituted a fair trial when a person was charged with a criminal offence.
  28. All persons that had been charged with and convicted of the offences of robbery and attempted robbery under sections 296(1) and (2) and 297(1) and (2) of the Penal Code did not have the full benefit of the right to fair trial as provided under article 50(2) of the Constitution and section 77(1) of the repealed constitution.
  29. The Constitution in article 2(5) provided that the general rules of international law would form part of the laws of Kenya. Therefore, any international treaty to which Kenya was a signatory or had ratified would form part of the law of Kenya in so far as it enriched the Kenyan jurisprudence and promoted internationally acceptable minimum standards of democracy, good governance and human rights.
  30. Kenya was signatory to the International Covenant on Civil and Political Rights (ICCPR) since May 1972. ICCPR, under article 6 had recommended that in the countries where the death penalty had not been abolished, then death sentence ought only to have been passed for the most serious of crimes thus alluding to the proportionate principle in sentencing.
  31. The ICCPR had also recommended that the convicted person ought to have been tried by a competent court or tribunal and also had to be given an opportunity to seek amnesty, pardon or commutation of sentence. Similar standards as those contained in ICCPR had also been addressed by the UN Commission on Human Rights (UNCHR) which had recommended for the abolition of the death sentence as a mandatory sentence which had been set out in Human Rights Resolution 2005/59. In addition, similar provisions as in the ICCPR and as considered by UNCHR, were prescribed under the UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, approved by the Economic and Social Council in its Resolution No. 1984/50 of May 25, 1984.
  32. It was clear from the international instruments and determinations that the death penalty was still recognized as a lawful sentence but with certain qualifications. The ICCPR, the UNCHR and the UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty in the respective covenants, resolutions and decisions, made provision for safeguarding of the lives of those facing death penalties, provided that in countries which had not abolished the death penalty, they were required to comply with certain safeguards which included the prerequisites not to make the death penalty a mandatory sentence, thus ensuring that the sentence was imposed only for the most serious crimes, and even then, an opportunity would be given to the convict to mitigate and seek pardon or commutation of the sentence.
  33. Kenyan courts had stated and re-stated again and again that the death penalty was a lawful sentence which was recognized both under the epoch and the current Constitutions. The Constitution had envisaged a situation where right to life could be curtailed; and that the death sentence provided in the Penal Code, for offences of murder under section 204 of the Penal Code, aggravated robbery under section 296(2) of the Penal Code and attempted robbery under section 297(2) of the Penal Code were in line with the Constitutional provisions giving the State power to limit the right to life through written law.
  34. The death sentence in Kenya as a penalty for the offences prescribed under the Penal Code, as stated was not unconstitutional. It was contemplated in the Constitution in that the same envisaged a situation where the right to life provided under article 26(3) of the Constitution could be curtailed by written law. Conversely the death sentence per se was not cruel, inhuman or degrading punishment.
  35. The people of Kenya, both the citizens during the referendum and their representatives in Parliament, and many other parties and persons throughout the Constitution making process had a great opportunity to change the law on the death penalty, among many other concerns Kenya as a country had, and maybe continued to have. With a resounding voice, they chose to retain the laws on the death penalty by giving those laws constitutional underpinning.
  36. The sections of the Penal Code upon which the Petitioners were charged and convicted with, insofar as they did not allow the possibility of differentiation of the gravity of the offences in a graduated manner in terms of severity or attenuation, and the failure to give an opportunity for the consideration of the circumstances of the offender, rendered sections 204, 296(2) and 297(2) of the Penal Code deficient in terms of assisting those administering the justice system to be able to charge offenders with the appropriate offences that would ultimately attract a proportionate sentence. It was in that context that the complaints by the Petitioners that the imposition of the death sentence as a one-stop-shop contravened their fundamental rights to fair trial.
  37. The word mitigation meant the act of lessening or making less severe the intensity of something unpleasant such as pain, grief or extreme circumstances. It was an act of making a condition or consequence less severe and in the instant case, the act of making a punishment or sentence in a criminal case less severe.
  38. Sections 216 and 329 of the Criminal Procedure Code were clear in their intent and purpose. They required trial courts to receive such evidence and mitigating circumstances as it thought fit before passing sentence in order to inform itself as to the proper sentence to pass. Although section216 of the Criminal Procedure Code was worded in permissive terms, on matters of sentencing, if a court disregarded the provision and therefore failed to take into account mitigating circumstances, the chances of not coming up with an appropriate sentence were enhanced.
  39. Although it might have appeared that Kenyan courts had no discretion to consider mitigation in the case where an accused person was convicted of a capital offence, it was a constitutional requirement for such an accused person to be granted an opportunity to present his mitigating circumstances before sentencing. That was because article 50(2) of the Constitution had set out some of the principles that were considered to constitute fair trial of which one was the right to lodge an appeal or apply for review in a higher court if convicted. Such mitigation would enable a court hearing the appeal to have a holistic view of the case and in the event that the Appellate Court decided to alter the conviction from a capital offence to any other offence, it would have all the facts and circumstances of the accused on record to enable it assess the appropriate sentence for the reduced offence.
  40. Some mitigating circumstances might have disclosed certain facts that materially affected the finding made by a court to such an extent that it might have resulted in a court arriving at a different decision. For instance, it was not unknown that many of the criminal charges brought before the Courts related to some form of land disputes. There could be circumstances where a trial court did not take into account such underlying circumstances. It might also have been that the accused suffered from some form of mental illness which might not have been apparent during the trial.
  41. The court was not oblivious of the fact that in the majority of criminal trials especially before the Magistrates’ Courts, accused persons were not represented and might not have been aware of their rights and due procedure of the Court. Such circumstances would sometimes be brought out during mitigation of sentence. If such an accused person was denied a chance to mitigate the sentence solely because he had been convicted of a capital offence, it would have denied him his constitutional right to fair trial.
  42. To put mitigation in its proper place in the trial process, sections 216 and 329 of the Criminal Procedure Code required the Court to receive such evidence as it thought fit to guide it as to the proper sentence to impose on an accused person after conviction. Mitigation was an important part of the trial where the Court obtained information, which might have been in the form of evidence or reports, whether expert or otherwise for instance a medical or Probation Officer’s or Children Officer’s reports giving the circumstances either of the offender, or the victim or their respective families or members of the community to which either of the parties belonged. Some of the information had statutory underpinning, for instance under section 323 of the Criminal Procedure Code the court was required to ask the accused person whether he had anything to say after his conviction and before sentence.
  43. Under section 333(2) of the Criminal Procedure Code, the Court was required to take into account the period the accused person spent in custody before conviction. It might have been argued that the provision was not relevant where an accused had been sentenced to death but that did not preclude the court from performing its statutory duty imposed on it to consider such information. The previous criminal record of the accused, and whether he was a first offender, and any other circumstances personal to the accused person ought to have been received at that stage of the proceedings before sentence was passed.
  44. Although it had not been the practice for courts to carry out a hearing as part of the sentencing process, the coming into force of the Sentencing Policy Guidelines made it a mandatory requirement and in accordance with International and Regional Sentencing Standards good practice. Upon conducting a hearing before sentence, the Court then delivered a reasoned ruling in which it set out all the factors that it had taken into account in determining the appropriate sentence to be meted to the convict.
  45. It was not uncommon for the Appellate Court to set aside a sentence imposed by the Trial Court which was not preceded by a reasoned ruling based on statutorily required pre-sentencing circumstances. Under sections 329A, 329B, 329C, 329D and 329E of the Criminal Procedure Code, it was not mandatory to receive the Victim Impact Statement and attendant reports, however, the law recognized the importance of receiving the information before sentence was passed.
  46. It was not by chance that stakeholders in the criminal justice system agitated for the formulation of the sentencing policy guidelines. The policy had been published by the Judiciary and was titled Sentencing Policy Guidelines and had been in use since 2015. It was a product of stakeholders in the criminal justice system. In Part 1 paragraph 3, the Policy set out the principles underpinning the sentencing process that included proportionality, equality, uniformity, parity, consistency, impartiality, accountability, transparency, inclusiveness, respect for human rights and fundamental freedoms and were adherent to domestic and international law with due regard to recognized international and regional standards on sentencing. The object of the Policy, inter alia, included the promotion of consistency, transparency and certainty in the sentencing process with the aim of ultimately enhancing delivery of justice and promoting confidence in the judicial process and recognized that the sentences imposed impacted on the criminal justice system as a whole. In fact, it was the penal sanctions ordered that either gave effect to or undermined the objectives of sentencing.
  47. A Comparison of sections 216 and 329 of the Criminal Procedure Code with section 98 of the Trial on Indictments Act of Uganda illustrated that unlike the Kenyan provisions, the Ugandan law on the issue of mitigation was specific that mitigation was not an option for those convicted of charges that attracted the death sentence.
  48. With respect to the mandatory death sentence, the position in Kenya was that all the provisions of the law that imposed the death sentence were couched in mandatory terms, using the word shall. It was not for the Judiciary to usurp the mandate of Parliament and outlaw a sentence that had been put in place by Kenyans, or purported to impose another sentence than had been provided in law. The fact that a trial court might have imposed a death sentence in circumstances alluded to in the judgement did not excuse or exempt a trial court from receiving and considering the mitigation and other reports that were legally required after the conviction of the accused and before sentencing.
  49. It might have been possible that a court seized with jurisdiction in a particular case would have varied a sentence that required the convict to be sentenced to death and given a sentence other than the death sentence. Such instances included; where a female convict was found to be pregnant, was a child, or was a person with mental disability. Thus, mitigation by a convict facing any criminal charge before sentencing was a constitutional imperative of fair trial.

Petition partly allowed; each party to bear its own costs

  1. A declaration that sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code do not meet the constitutional threshold of setting out in sufficient precision, distinctively clarifying and differentiating the degrees of aggravation of the offence of robbery and attempted robbery with such particularity as to enable those accused to adequately answer to the charges and prepare their defences..
  2. A recommendation that the Attorney General, the Kenya Law Reform and other relevant agencies to prepare a detailed professional review in the context of the judgment and order made with a view to enabling Parliament to appropriately amend Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code with a view to removing the ambiguity and inconsistency inherent in the said sections as regards the definition of the offence of robbery and differentiate and graduate the degrees of aggravation and the attendant penalties. In considering the amendments, it should be recommended to Parliament to take into consideration International good practices on sentencing, so as to accord similar facts to similar charges of equal gravity.
  3. In view of the fact that there were pending trials before the Courts at various stages of the hearing process where accused persons had been charged under the impugned sections of the Penal Code, and in order not to prejudice those trials, the effects of the declaration in (a) above, was suspended for eighteen (18) months from the date of the delivery of this judgment to enable the Attorney General, the Kenya Law Reform and Parliament to act and appropriately amend the impugned sections of the Penal Code with a view to removing the identified ambiguities and inconsistencies and setting out the degrees of aggravation, and differentiate and graduate the various aspects of the offence of robbery.
  4. As regards the Petitioners, and those other convicts in the same situation as them, a direction was issued to the Attorney General, in consultation with other relevant authorities, to consider the shortcomings identified in the judgement in relation to those charged and convicted under sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code, with a view to remedying any prejudice that might have suffered and prescribe appropriate solution. The Attorney General was granted eighteen (18) months to give a report to the court.
  5. The Petitioners’ prayer to have their respective cases remitted to the Trial Courts for the reception and consideration of their mitigating circumstances dismissed.
CIVIL PRACTICE AND PROCEDURE Res judicata doctrine not applicable to children matters

A N M V P M N
HCCC Case No. 14 of 2015
High Court at Nairobi
M W Muigai, J
September 5, 2016
Reported By Nelson Tunoi & Silas Kandie

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Civil Practice and Procedure – res judicata –whether the doctrine of res judicata applied in children matters - where the Applicant had filed an application regarding parental responsibility and maintenance for her children who had reached the age of majority – preliminary objection on grounds that the application was res judicata – whether the application had merit – Civil Procedure Act (cap 21) section 7; Children Act (2001) sections 28(1) and (2), 91
Children Law – parental responsibility - extension of parental responsibility - application for order to extend parental responsibility beyond the 18th birthday - special circumstances under which a person could make an application to the court for maintenance of a child- whether it was fatal if the application was brought one of the parent instead of the child himself - Children Act (2001) sections 28(1) and (2), 91

Brief Facts
The Applicant filed an application regarding parental responsibility and maintenance for her children who had reached the age of majority. The Respondent replied by filling a preliminary objection application stating that the matters raised in the Applicant’s application were res judicata and that they had already been determined by a court of competent jurisdiction in Children's Case 902 of 2015, hence the application was bad in law and an abuse of the court process and as such, ought to be dismissed with costs.
The Ruling of the Children Court was that the application for the Respondent to pay school- fees for the child over 18 years was denied and dismissed as the child did not lodge the application herself as required undersection 91 of the Children Act,amongst other reasons.

Issues

  1. Whether the application regarding parental responsibility and maintenance was res judicata as raised in the preliminary objection.
  2. Whether the principle of res judicata applied in children matters. Read More...

Relevant Provisions of the Law
Civil Procedure Act,
Section 7
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Explanations 1-3:
Explanation (1) — The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation (2) — For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) — The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Children Act 2001 Section 28(1) & (2):
Parental responsibility in respect of a child may be extended by the Court beyond the date of the Child's 18th birthday, if the Court is satisfied upon application or of its own motion, that special circumstances exist with regard to the welfare of the child that would necessitate such extension being made; provided that the order maybe applied for after the child's 18th Birthday.
An application under this section maybe made by;

  1. the parent or relative of the child;
  2. any person who has parental responsibility for the child;
  3. the Director;
  4. the child.

Held:

  1. The doctrine of res judicata implied that for a matter to be res judicata, the matters in issue had to be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a Court of competent jurisdiction. The Court would as well invoke the doctrine in instances where a party raised issues in a subsequent suit, wherein he/she ought to have raised the issues in the previous suit as between the same parties.
  2. The gist of the Application dated April 7, 2016 revolved around the question of parental responsibility and parental care. The application was not res judicata because;
    1. Matters relating to children were determined on the basis of the best interests of the child which were paramount as espoused in article 53 (3) of the Constitution of Kenya, 2010.
    2. Res judicata was not applicable to children matters as it was not expressly provided for in Children Act 2001. Practically, it behooved parents, family, community and society to support the child in growth and development up to the stage the child or young adult had ability to fend for himself/herself. Therefore, naturally there would be upcoming issues with regard to the child to safeguard the child's interest.
    3. Although it was not an appeal of the Children Court matter, one of the reasons for dismissal of the application to extend parental responsibility to the child who was over 18 years was that the Applicant to the application in the children’s Court ought to have been the child and not the mother and she should have sought leave of the Court as prescribed under section 91 of the Children Act.
    4. The application for payment of school fees was inter-twinned with other related issues that the Court had jurisdiction to hear and determine, it would have been premature at that stage to expunge the application but rather hear and determine it on its merits. That was in line with article 165(3) of the Constitution that spelt out the jurisdiction of the Court and article 159(2)(d) of Constitution, which mandated that justice should be administered without undue regard to technicalities.
  3. Section 28(1) and (2) of the Children Act safeguarded the welfare of the child by permitting various parties to apply for extension of parental responsibility. The non-compliance of the process could not preclude another application being lodged. The provision did envisage the principle of res judicata instead it upheld the best interests of the child.

Preliminary objection overruled; application to be determined on its merits.

CONSTITUTIONAL LAW Court’s Inherent Powers to Make any Orders Necessary to Meet the Ends of Justice.

Kenya Power and lighting Company Limited v Benzene Holdings Limited t/a WYCO Paints
Court of Appeal at Nairobi
Civil Appeal No. 132 & 133 of 2014
Makhandia, Ouko & M’Inoti, JJ A
November 25, 2016
Reported by Emma Kinya Mwobobia

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Civil Practice and Procedure – rules of procedure – applications of rules of procedure - inherent power of the courts – inherent power of the courts to make orders to meet the ends of justice – where the court had faulted the appellant in applying the general rules of practice where a specific rule existed in the statutes to address the issue in question – whether the inherent powers of a court can be fettered where the court in its decision strictly applied the rules of procedure and not dealing with the substance of the case – Constitution of Kenya, 2010, article 159; Civil Procedure Act, section 1A, 1B & 3A.
Review – review application – considerations to be met before filing a review application – circumstances when a review application can be filed – requirement to file for a review without unreasonably delay – Civil Procedure Rules, Order 44. 
Company Law – capacity – capacity to sue and be sued – where a company had instituted a suit after it had been dissolved - allegation that the company lacked capacity to sue due to lack of existence under the law and hence was not entitled to the damages that it sought – whether a company that had been dissolved could maintain an action in court.

Brief Facts:
In 1996, a fire broke out and burnt down the Respondent’s premises in Industrial Area, Nairobi County where it was engaged in the business of manufacturing paint. The fire was blamed on the negligence of the Appellant, the Kenya Power and Lighting Company Limited (KPLC), who were subsequently sued for damages. The Appellant denied the particulars of negligence and instead attributed the fire outbreak to the Respondent’s failure to adhere to safety precautions in view of the nature of its business. At the trial before the High Court, both parties called expert witnesses on the probable cause of the fire, at the conclusion of which the court accepted the Respondent’s evidence that the fire was caused by an electric power surge, resulting in the emission of sparks before igniting the fire. On the other hand the court dismissed the contention by the Appellant that the chemical substance used in the manufacture of paint was responsible for the fire outbreak. The court thus entered judgment in favour of the Respondent and awarded it damages, costs and interest. Aggrieved by the decision, the Appellant filed an Appeal.
In the meantime, within seven days of the impugned decision, the Appellant took out a motion pursuant to section 3A of the Civil Procedure Act for orders that the proceedings and the aforesaid judgment be set aside; that the Respondent’s suit be struck out because the appellant had discovered that the matter proceeded when the Respondent had in fact been dissolved and struck off the register of companies; that, on that score it had no capacity to participate in the proceedings and that the judgment was rendered in complete disregard to that fact.
 The High Court ruling faulted the appellant for invoking the court’s inherent powers under section 3A of the Civil Procedure Act when the application was in fact one for review under order 44 of the revoked Civil Procedure Rules. In dismissing the application she concluded that an Applicant could not, where there was a specific Order and Rule, apply the general Rule as to do so would be throwing the Rules of procedure out of the window. Rules of procedure ought as much as possible be adhered to.
Once again the Appellant was aggrieved and lodged a subsequent appeal. The two appeals were listed before the Court of Appeal on the same day and by consent both appeals were consolidated. Whereas the first appeal challenged the substantive finding on the cause of the fire, the second one challenged the exercise by the High Court of judicial discretion.

Issues:

  1. Whether an aggrieved party to a Court decision where there were new facts emerging that could affect the substance of the case could seek for a review of the decision?
  2. Whether the court could invoke its inherent discretion in a matter that had been brought before it in disregard of the rules of procedure in order to meet the ends of justice.
  3. Whether a company that had been dissolved could maintain an action in Court.
  4. Whether the Court’s inherent power of discretion could be fettered by considering irrelevant issues in its decision and disregarding the merit of the case.Read More...

Held:

  1. If the appeal challenging the dismissal of the Appellant’s application to set aside the judgment succeeded, the latter appeal would be rendered moot. In other words, if the Court of Appeal found that the High Court ought to have set aside the proceedings and judgment and to have struck out the suit, then no purpose would be served in considering the substantive appeal.
  2. Apart from the provisions of order 10 rule 11, order 12 rule 7 and order 36 rule 10 of the Civil Procedure Rules, dealing with the setting aside of default judgments, the Civil Procedure Rules did not have a provision for the setting aside of the final judgment. A party aggrieved by a final judgment could either move the court under order 45 for a review of the resultant decree or by lodging an appeal in terms of order 42.
  3. For a matter to qualify for a review, there were stringent requirements that had to be met. For instance the Applicant ought to have demonstrated:
    1. that as a matter of right he could have appealed but had not exercised that option;
    2. that no appeal lay from the decree with which he was dissatisfied; 
    3. that he had discovered a new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced when the order was made; 
    4. that there was a mistake or error apparent on the face of the record;
    5. that there were sufficient reasons to warrant the review.
  4. It was  a  requirement  that  the  application  for  review  ought to be  brought  without unreasonable delay. The appellant was categorical that the decision not to invoke the order was conscientious and deliberate, just as it was purposive to resort to the inherent powers of the court because all the Appellant wanted was the setting aside of the judgment on a specific ground that was not covered under the former order 44 of the Civil Procedure Rules, namely the Respondent’s lack of capacity to maintain an action.
  5. Section 3A of the Civil Procedure Act appeared to have been introduced to augment the provisions of section 3, vesting in the courts inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. The power had been broadened by the introduction of overriding objective in sections 1A & 1B and by article 159 of the Constitution.
  6. The inherent jurisdiction of a court was a residual intrinsic authority which the court could resort to in order to put right that which would otherwise be an injustice. It was situations like the one before Court that called for the exercise of the inherent powers of the Court.
  7. A company that had been dissolved could not maintain an action and conversely, that no action could be brought against it simply because it did not exist in the eyes of the law. That being the settled position of the law there was no relevance of the arguments that the Respondent was a holding company of WYCO Paints when it was indicated only in the heading of the suit that it traded as WYCO Paints without evidence whether WYCO Paints itself existed and in what form. The issue of subrogation was equally of no moment as the action was brought and prosecuted by the Respondent itself.
  8. The High Court improperly exercised its discretion by considering irrelevant issues, insisting that the application ought to have been brought under order 45 instead of section 3A. In the process the Court failed to consider the merit of the application and came to the wrong conclusion. The Respondent had no existence and could therefore neither pay nor receive costs.

Appeal allowed with no order as to costs. Order dismissing the application substituted with an order allowing it thus, Respondent’s suit stands struck out and proceedings and judgments set aside.

CONSTITUTIONAL LAW Court declares provisions of the Statute Law (Miscellaneous Amendments) Act 2015 purporting to confer cross-jurisdiction upon judges of the High Court and Judges of the equal status courts unconstitutional.

Malindi Law Society v Attorney General & 4 others
Constitutional Petition No 3 of 2016
High Court at Malindi
M J Anyara Emukule, S J Chitembwe & M Thande, JJ
November 11, 2016
Reported by Teddy Musiga

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Constitutional Law – Constitutionality of statutes – claim challenging the constitutionality of statutes – whether sections 7(3), 8(d) and 26 (4) (b) of the Environment and Land Court Act; sections 9(a) & (b) and 10 (6) of the Magistrate’s Court Act, 2015 and sections 13 (4) and 36 (3) of the High Court (Organization and Administration) Act were unconstitutional.

Jurisdiction – jurisdiction of courts – claim challenging declaration of constitutionality of certain provisions of the Statute Law (Miscellaneous Amendments) Act 2015 that purported to confer cross jurisdiction upon judges of the High Court and judges of equal status - Environment and Land Court Act sections 7(3), 8(d) and 26 (4) (b); Magistrate’s Court Act, 2015 sections 9(a) & (b) and 10 (6); High Court (Organization and Administration) Act were unconstitutional sections 13 (4) and 36 (3)

Brief facts:
The Petitioners challenged the constitutionality of certain sections of three pieces of legislation and thus sought declaratory orders that they be declared null and void. The particular statutes were, sections 7(3), 8(d) and 26 (4) (b) of the Environment and Land Court Act; sections 9(a) & (b) and 10 (6 of the Magistrate’s Court Act, 2015 and sections 13 (4) and 36 (3) of the High Court (Organization and Administration) Act. They also sought orders of certiorari to quash Gazette notices Nos. 1472 and 1745 of 2016 published by the Chief Justice. Gazette notice no. 1472 published a list of 168 magistrates who were given jurisdiction to deal with cases involving disputes relating to environment and land in areas of their jurisdiction with effect from March 14, 2016. They also alleged that some of the appointed magistrates had pending issues before the Judges and Magistrates Vetting Board.

Issues:

  1. Whether sections 13(4) and 36 (3) of the High Court (Organization and Administration) Act were inconsistent with articles165(5) and 162 ofthe Constitution of Kenya, 2010 and thus were unconstitutional to the extent of that inconsistency.
  2. Whether sections 9 (a) and (b) and 10 (6) of the Magistrates’ Court Act, 2015 were unconstitutional, null and void for being in violation of or inconsistent with articles 2, 162(2) (a) and (b) and 255 (1) of the Constitution of Kenya, 2010.
  3. Whether the amendments to section 7 (3), 8 (d) and 26 (4) (b) of the Environment and Land Court Act, 2011 by the Statute Law Miscellaneous (Amendments) Act, 2015 were properly effected by way of miscellaneous amendments in that they were inconsistent with articles 162 (2) (a) and (b) and 94 of the Constitution of Kenya, 2010.
  4. Whether persons appointed to courts of equal status had the individual competences to preside over matters reserved to the High Court and vice versa.
  5. Whether the provisions of the Statute Law (Miscellaneous Amendments) Act 2015 that purported to confer cross-jurisdiction upon judges of the High Court and Judges of the equal status courts were inconsistent with article 162 (2) as read with article 165(5) of the Constitution of Kenya.
  6. What was the jurisdiction of the subordinate courts in relation to matters environment and occupation of, use and title to land.Read More...

Held:

  1. Article 165 (4) of the Constitution of Kenya, 2010 provided that matters raising substantial questions of law under clause 3 (b) or (d) thereof were to be heard by an uneven number of judges. The dispute in the instant matter being a question as to whether the impugned amendments were consistent with or in contravention of the Constitution fell within the purview of article 165 (3) (d) of the Constitution. Therefore, the Court had the jurisdiction to determine the dispute.
  2. The Petitioners were an association which was duly registered under the laws of Kenya. It was within their rights either individually or as an association to file the Petition given the provisions of article 22 and 258 of the Constitution of Kenya, 2010.
  3. The issues raised in the instant petition were totally different from those that were raised in Constitutional Petition No. 3 of 2016, Law Society of Kenya v Attorney General & National Assembly [2010] eKLR. Therefore, the matter was not res judicata.   
  4. The issue of public participation with regard to the Statute Law (Miscellaneous Amendment) Act, 2015 was resolved by the five judge bench of the High Court. They found that there was adequate public participation before the said statute was passed. Consequently, the Petitioners were estopped from raising it again.
  5. The plain meaning rule/ golden rule of interpretation is that statutes ought to be construed in accordance with the intention of Parliament and the meaning given to the words used ought to be the ordinary and natural meaning. In interpretation of statutes, if the meaning of the word/ phrase used was ambiguous then one ought to consult with two sources. The first being the primary sources i.e the statute itself, statutory definitions, case law, administrative regulations and when those did not yield much, in that they were insufficient, then one ought to move to secondary sources i.e dictionaries, legal encyclopaedias and legislative history documents. Further, the word/ phrase if ambiguous had to be interpreted in the context of that statute.
  6. Section 13 (4) of the High Court (Organization and Administrative Act) 2015 empowered the Chief Justice to assign special duties to any judge for the purposes of exercising judicial authority. Since that provision applied to the High Court, there was no objection for the Chief Justice assigning special duties to any judge thereof. Therefore, there was nothing unconstitutional with that section.
  7. Section 36 (3) of the High Court (Organization and Administrative Act) 2015 merely provided for a punishment for a person who committed an act of contempt in the face of the Court like any other penal provision, providing sanction for transgression. Therefore, there was nothing inconsistent with the Constitution.
  8. It was correct that article 165(5) of the Constitution of Kenya, 2010 prohibited the High Court from exercising jurisdiction on matters of employment and labour relations, and matters of environment, use, occupation and title to land. It was also correct that there was no corresponding provision denying courts of equal status jurisdiction on matters other than employment and labour relations, and use, occupation of and title to land.
  9. It is obfuscation of issues to say that because of the absence of, negation or denial of jurisdiction, it follows that courts of equal status have the jurisdiction reserved to the High Court as envisaged by article 165(1) – (4) and (6) of the Constitution of Kenya, 2010. That was neither a question of qualification of persons appointed to be judges of the High Court or Courts of equal status nor of the fact that all judges were appointed by the President. Both appointment and qualification were prescriptions of the Constitution. It was a question of what the Constitution provided in respect of jurisdiction of the High Court on the one hand and courts of equal status on the other. There was no question that persons appointed to courts of equal status had the individual competences to preside over matters reserved to the High Court and vice versa.
  10. The word, “status” was not defined in the Constitution or the statutes establishing either the Employment and Labour Relations Court or the Environment and Land Court. Thus, the phrase that, “Parliament shall establish courts of equal status” under article 162(2) of the Constitution meant that, it had to be a court of the same standing as the High Court, and the persons or judges appointed to those courts as persons of the same social or professional standing as persons appointed to the High Court. That was not the same thing as jurisdiction.
  11. Jurisdiction was conferred by the Constitution and the respective establishing statutes and could only be extended likewise. It could not be conferred by the administrative acts of the Chief Justice. Consequently, section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015 was inconsistent with the clear provisions of the Constitution, and therefore unconstitutional to the extent of the inconsistency.
  12. Article 169(2) of the Constitution of Kenya, 2010 which granted Parliament power to enact legislation to generally confer jurisdiction on subordinate courts had to be read together with article 162 (2) which restricted and limited jurisdiction on matters environment, use, occupation of and title to land to courts of equal status to the High Court. That was not to say that subordinate courts could not or ever exercise jurisdiction on matters employment and labour relations, or environment and the use and occupation of, and title to land.
  13. Article 169(1) of the Constitution of Kenya, 2010 recognised subordinate courts as the Magistrates courts, Kadhis courts, Courts-Marshall and any other court or local tribunal as could be established by an Act of Parliament, other than the courts established as required by article 162 (2) of the Constitution.  Thus, whereas Parliament could enact legislation conferring jurisdiction on subordinate courts, Parliament could neither establish any other court or local tribunal, similar to courts referred to in article 162(2) (courts of equal status) nor could it purport to confer jurisdiction to a court which was not of equal status with the High Court.
  14. There is need to clarify in the Constitution, by way of an amendment thereto, that despite the provisions of article 165(5), the Chief Justice with approval of the Judicial Service Commission may in the management of the Judiciary, assign any judge of the High Court, to preside over any matter in the environment and land court or Employment and Labour Relations Court to preside over any matter in the Employment and Labour Relations Court or vice versa for such period as the Judicial Service Commission may determine.

Application allowed. Each party was to bear their own costs.

  1. Section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015
    1. so far as it related to the transfer of judges from the High Court to Courts of equal status and vice versa, was inconsistent with both articles 165(5) and 162 of the Constitution and therefore null and void; and
    2. in relation to the jurisdiction of the subordinate courts, in respect of matters relating to environment and use, occupation of and title to land was inconsistent with article 162 (2) of the Constitution, and therefore null and void.
  2. Sections 13(4) and 36(3) of the High Court (Organization and Administration) Act, 2015 were not unconstitutional.
  3. Sections 7(3). 8(d) and 26(3) and (4) of the Environment and Land Court Act were unconstitutional and therefore null & void.
  4. Sections 9 (a) and (b) of the Magistrates Court Act, 2015 were unconstitutional and therefore null & void.
  5. Section 10 (6) of the Magistrates’ Court Act, 2015 (in relation to the Court’s power to punish for contempt in the face of the court) was not unconstitutional.
  6. An order of certiorari was issued to quash the gazette notices nos. 1472 and 1745 of 2016.

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The Kenya Law Team

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