Weekly Newsletter 016/2018

Weekly Newsletter 016/2018



Kenya Law

Weekly Newsletter


In Addition to the Prayer for Production of the Persons or Bodies of the Persons who are the Subject of Habeas Corpus, Compensation can also be Sought for Violation of Rights and Fundamental Freedoms of the Subjects Of Habeas Corpus
Law Society of Kenya & 2 Other v Attorney General & 2 others
Constitutional Petition No. 311 of 2016
High Court at Nairobi
E.M Muriithi, J
April 13, 2018
Reported by Robai Nasike Sivikhe and Safiya Awil
Download the Decision

 

Constitutional Law- capacity to institute a suit- institution of a suit on behalf of another person- where the suit was a petition of Habeas corpus- whether the Law Society of Kenya could institute a suit of Habeas corpus on behalf of persons who had allegedly disappeared upon arrest- Constitution of Kenya, 2010, Article 22 (2)

International Law- international treaties- recognition of international treaties and conventions- recognition and application of treaties not ratified in Kenya – where a convention that was not yet ratified by Kenya made provisions on a matter that was of global concern- whether a convention that was not yet ratified by Kenya was applicable in Kenya by virtue of the fact that it made provisions on enforced disappearance which was a matter of global concern- Constitution of Kenya, article 2 (6)

Evidence law- standard of proof – the standard of proof in habeas corpus petitions- what was the established standard of proof in Habeas corpus proceedings- whether it had been proven to the required standard that the 2nd and 3rd Respondents had been detained by the Respondent hence requiring orders of habeas corpus

Evidence Law hearsay evidence- admissibility of hearsay evidence- exclusion of hearsay statements that implicated the police- whether hearsay statements by witnesses were inadmissible and ought to be excluded

Constitutional Law- fundamental rights and freedoms- rights of an arrested person- the right of an arrested person to be availed to court within the proper time upon arrest- whether the 2nd and 3rd Petitioners were availed to Court within the proper time as stipulated by the Constitution upon their arrest- whether the 2nd and 3rd Petitioners were detained arbitrarily hence ought to be compensated- Constitution of Kenya, 2010, article 49 (1) (f)

 

Brief Facts:

The 1st Petitioner was a statutory body corporate established under section 3 of the Law Society of Kenya Act.  It had commenced the instant suit on behalf of the 2nd and 3rd Petitioner’s pursuant to article 22 (2) (a) and (c) of the Constitution. The 1st, 2nd and 3rd Respondents were offices established under articles 146, 157 and 245 of the Constitution respectively. Article 22(1) of the Constitution gave every person the right to institute court proceedings where fundamental freedom in the bill of rights had been denied, violated or infringed and a person who had been detained could be produced pursuant to an order of Habeas corpus under article 51 of the Constitution.
The Petition sought an order of habeas corpus for the production of the 2nd and 3rd Petitioners who, it was alleged, were arrested by Administrative Police Officers on the June 1, 2016, a fact denied by the Respondents who, consequently, prayed that the application for habeas corpus be dismissed.

 

Issues:

  1. Whether the Law Society of Kenya could institute a suit of Habeas corpus on behalf of persons who had allegedly disappeared upon arrest
  2. Whether a convention that was not yet ratified by Kenya was applicable in Kenya by virtue of the fact that it made provisions on enforced disappearance which was a matter of global concern
  3. What was the established standard of proof in Habeas corpus proceedings
  4. Whether it had been proven to the required standard that the 2nd and 3rd Respondents had been detained by the Respondent hence requiring orders of habeas corpus
  5. Whether hearsay statements by witnesses were inadmissible and ought to be excluded
  6. Whether the 2nd and 3rd Petitioners were availed to Court within the proper time as stipulated by the Constitution upon their arrest
  7. Whether the police officers who were involved in the arrest of the 2nd and 3rd Petitioners were open to investigation.

Held:

  1. The matter of disappearance of persons under police arrest or custody was a matter for public interest and a concern of the 1st Petitioner- the Law Society of Kenya in terms of its rule of law objectives under the Law Society of Kenya Act. The two Petitioners subject of the habeas corpus application were not in a position to sue and file depositions on their own behalf. The circumstances of the case were apt for invocation of the expanded standing provisions of article 22 (2) (a) and (c) of the Constitution.
  2. Although Kenya had not ratified the United Nations International Convention for the Protection of all Persons from Enforced Disappearance, 2007 as to make it part of the law of Kenya under article 2 (6) of the Constitution, global concern over disappearance of persons gave the instant matter the grave moment which had to drive a deliberate effort to resolve cases of disappeared persons.  Articles 1 and 2 of the Convention provide for protection against enforced disappearance for all circumstance so that the vice was indefensible by any justification or exceptional circumstances. The events proved by evidence in the instant case neatly fit the billing of an enforced disappearance within the Convention for which there was a total ban under the international treaty law.
  3. The burden of proof in habeas corpus petitions lay with the Petitioner until he proved detention by the Respondent, upon which the Respondent had to prove the lawfulness of detention. The arrest and detention of the 2 Petitioners subject of the proceedings was tenuously denied with the Respondent’s implicated officers indicating arrest only on the material day of wholly unrelated persons. The burden of proving the arrest by the police of the 2nd and 3rd Petitioner rested wholly with the Petitioners which they had to discharge to the applicable standard of proof before the Respondents could be put on their  defense, as it were, calling for evidence in rebuttal or lawful reasons for the arrest and detention.
  4. Much of the statements made by witnesses PW3 and PW4 involving the police officers in the arrest and subsequent disappearance of the persons subject of the habeas corpus application was hearsay, and therefore inadmissible for purposes of proving the truth of those statements.
  5. On the evidence presented before the Court, the Petitioner’s case was more probable than the defense version of events that they had not arrested the 2nd and 3rd Petitioners. It had been proven on a balance of probabilities that the three police officers arrested and detained the two Petitioners who were subjects of the habeas corpus proceedings.
  6. In accordance with article 49(1) (f) of the Constitution, the arresting officers were obliged to produce the two petitioners before a court within 24 hours.  That constitutional obligation was breached by the three police officers when they failed to produce the arrested persons before a court on June 2, 2016, and consequently, the 2nd and 3rd Petitioners were detained without trial within the meaning of article 29 of the Constitution.  The Petitioners were consequently entitled to damages for unlawful arrest and detention without trial under article 29 of the Constitution.
  7. As a rule of law country it sufficed to order for Mandamus to compel the police to investigate the matter and take appropriate action consistent with the finding of the investigations.  The practical reality where impunity abounded could, however, not inspire too much confidence and since the Court had to give Orders, not suggestion or advice, needless to state, should the office of the Inspector General and the Director of Criminal Investigation or other relevant officer, abscond their statutory duty or refuse to carry out the investigation as directed by the court, the judicial review order of Mandamus as a suitable sanction of the Court could be invoked, not the least of them being article 245 (7) petition for removal of the Inspector General and prosecution for contempt of court under the Contempt of Court Act, 2016.
  8. The police officers implicated had clearly an opportunity to be heard in the matter and together took benefit of that opportunity by granting one of them authority to plead and act for them whereupon he filed the Replying Affidavit on their behalf.  They, however, did not make oral testimony before the Court at the oral hearing as directed by the Court and they could not be heard to say that they were not heard or given an opportunity to be heard in the matter.
  9. The High Court as the Constitutional Court had a duty under article 23 of the Constitution to address denial or violation or infringement of, or threat to rights and fundamental freedoms in the Bill of Rights. The Judiciary was the custodian of the Judicial authority of the people of Kenya under article 1 (3) (c) of the Constitution. It had to take the lead role when applying and interpreting the Constitution, to uphold and promote the national value and principles of the Law entrenched under article 10 of the Constitution and, through it, help combat the specter as well as reality of impunity in the state and society of Kenya.
  10.  It was the height of impunity if Police Officers, who were constitutionally charged with the duty to maintain law and order and to enforce the law for the protection of life, liberty and property and observation of the human rights and freedoms, were to arrest persons for whatever transgressions of the law only for such arrested persons to subsequently disappear and the Police to deny ever arresting such persons, cover up their actions and get away with it.  It was cheating Justice. Not only should such Police Officers be held personally liable in a criminal process for their offences against the person but the State had to be held vicariously liable for the unlawful actions of its employees.
  11. While the adjudication of the criminal aspect of the matter for conviction and punishment as appropriate of the officer ultimately found responsible had to take place consistently with the right to fair trial through the Criminal Courts established for the purposes, the liability of the State for the wrongful violation of rights arising out of the actions of its officers had to be determined under proceeding in that behalf before a Civil Court.
  12. The arrest of the 2nd and 3rd Petitioners by the Administration Police Officers named was proved on a balance of probabilities to the required high standard of proof applicable to the Petition.  The arrests were not shown to have been justified on account of investigation of any crime, and were denied. The arrests were arbitrary, unlawful and an unconstitutional violation of the victims’ rights to liberty and to protection from detention without trial, under article 29 of the Constitution.
  13. In accordance with section 193A of the Criminal Procedure Code, criminal prosecution and investigation were unaffected by the instant petition.  The 2nd and 3rd Respondents were at liberty and obligation under the Constitution to investigate and prosecute such crimes as were established by such investigations.  The officer charged with investigation in the matter, demonstrated reluctance or inability to investigate the matter despite report and deference to him.
  14. Judicial review was available where a public body failed to exercise a constitutional or statutory duty.  The Court in exercise of the delegated judicial authority of the people of Kenya under Article 1 (3) (c) of the Constitution directed the 2nd and 3rd Respondents to conduct investigations as appropriate and to bring to justice the persons found to have participated in the disappearance of the 2nd and 3rd Petitioners.

Petition partly allowed

  1. The Petitioner’s Petition for an order of habeas corpus was declined as there was no evidence that the Respondents had custody of the 2nd and 3rd Petitioners.
  2. The 2nd and 3rd Petitioners were arrest by Administration Police Officers Benson Simiyu Makhoha, Simon Mbau Muriithi and Kennedy Mburu Njoroge and thereafter disappearance  in unclear circumstances, had to  be investigated and appropriate action taken in the circumstances.
  3. The 3rd Respondent to pay on behalf of the National Police Service of the Government of Kenya Ksh.5, 000,000/= each for the 2 petitioners - the 2nd and 3rd Petitioners - to be paid to the Petitioners’ respective mothers, Beatrice Kajairo and Sarah Khadi Muyera – as compensation for breach of the Petitioners’ rights under article 29 of the Constitution against deprivation of freedom arbitrarily and without just cause, and detention without trial upon arrest by the Administration Police Officers.
  4. A Judicial Review Order of Mandamus to issue to the 3rd Respondent directing him to carry out their constitutional and statutory function of investigation of crime under article 245 of the Constitution, and section 24 (e) of the National Police Service Act, and to the 2nd Respondent thereafter to consider the results of the investigation and to prosecute persons found culpable for any offence.
  5. The costs of the Petition shall be paid by the 3rd Respondent to the Petitioners.
Kenya Law
Case Updates Issue 019/2018
Case Summaries

CRIMINAL PROCEDURE Production of an Accused Person in a Subordinate Court when a Superior Court had Ordered that he be Produced before it does not Amount to Disobedience of Court Orders

Miguna Miguna v Director of Public Prosecutions & 2 others [2018] eKLR
Misc. Criminal Application No.57 of 2018
High Court at Nairobi
L. Kimaru,J
February 6, 2018.
Reported by Kakai Toili

Download the Decision

Criminal Procedure – court orders – disobedience of court orders – order to produce an accused person before a superior court - whether production of an accused person in a subordinate court when a superior court had ordered he be produced before it amounted to disobedience of court orders
Jurisdiction – jurisdiction of the High Court – termination of criminal proceedings initiated by the Director of Public Prosecutions - whether the High Court had jurisdiction to terminate criminal proceedings brought by the Director of Public Prosecutions

Brief Facts:
The Court had directed that the Applicant be released on anticipatory cash bail of Kshs.50,000/- pending his appearance before it. As a caveat, the Court ordered that should the Respondents have charged the Applicant with a known offence, then, the Applicant should be presented before the Court as soon as possible. The Respondents were duly served with the orders on February 2, 2018. However, the Applicant was not released from the police’s custody.
When the matter was listed before the Court on February 5, 2018, it was alleged that the Applicant was kept incommunicado and was not able to communicate with his advocates. It was also alleged that the whereabouts of the Applicant were unknown and that the police were not willing to disclose where the Applicant was being detained. The Court directed that the Applicant be released on anticipatory bail pending further investigations or pending his arraignment before the Court for whatever charges that could be brought against him and that the 2nd and 3rd Respondents appear personally and show cause why they should not be punished for being in disobedience of the orders. The Court further directed the Director of Public Prosecutions to serve the 2nd and 3rd Respondents with the orders and to be present before the Court on February 6, 2018 at 9.00 a.m. with the Applicant.
When the Court convened its session on February 6, 2018, it was informed by the Deputy Director of Public Prosecutions that the Applicant had been presented before the Chief Magistrate’s Court at Kajiado and had been charged with three offences. The Court was shown a draft charge sheet. The Court duly confirmed that indeed the Applicant had been presented before the Chief Magistrate’s Court at Kajiado and had been requested to take plea.

Issue:

  1. Whether production of an Accused person in a subordinate court when a superior court had ordered the Accused be produced before it amounted to disobedience of court orders.
  2. Whether the High Court had jurisdiction to terminate criminal proceedings brought by the Director of Public Prosecutions.Read More...

Held:

  1. The 2nd and 3rd Respondents acted in clear breach of the orders of the Court issued on February 2, 2018. It was not for the Respondents to interpret the legality or the veracity of the order issued. It was not open for the Respondents to choose whether or not to comply with the orders issued. As public officers, the 2nd and 3rd Respondents were required to lead by example by obeying orders issued.
  2. The 2nd and 3rd Respondents could not purport to enforce the law by breaking the law. They acted in contempt of the orders of the Court by detaining the Applicant in breach of the orders issued.The 2nd and 3rd Respondents appeared not to appreciate the seriousness of their action in failing to comply with the orders hence the Court’s decision to summon them to appear before it. Eventually, the 2nd and 3rd Respondents produced the Applicant before a court of competent jurisdiction.
  3. The Application achieved its objective of securing the production of the Applicant before a court of competent jurisdiction. The Applicant’s remedy for unlawful detention lay in filling an appropriate suit for damages for breach of his rights and fundamental freedoms. The Court did not have jurisdiction to terminate criminal proceedings brought by institutions mandated by the Constitution to bring criminal charges before courts.
  4. A Court had to keep out of the arena. It should not have or appeared to have responsibility for the institution of a prosecution. The functions of prosecutors and courts must not be blurred.
  5. The Applicant was at liberty to seek appropriate remedy in a constitutional petition or a suit for damages for breach of his rights and fundamental freedoms during the period that he was detained in breach of the orders. The Applicant had to appear before the Court that he had been charged and if he wished to challenge the jurisdiction of that court to try him, he was at liberty to file an appropriate application before the appropriate court.
  6. It could not be appropriate for the Court to require appearance of the 2nd and 3rd Respondents because it would not serve any useful purpose.

Application allowed

  1. Applicant if not yet charged, to be released on anticipatory cash bail of Kshs.50, 000/-, pending his appearance before the Court that he had been charged.
  2. Applicant if already charged, the Trial Court to consider his application for bail pending trial subject to the caveat that his cash bail shall not be more than Kshs.50,000/-
JURISDICTION A Party that Sought to Challenge the Jurisdiction of a Court before which were Pending Proceedings, had to Ideally do so Before that Court

Ann Waiguru & another v Martha Wangari Karua & 2 others [2018] eKLR
Application No. 5 Of 2018
Supreme Court of Kenya
D Maraga, CJ; P, Ibrahim; J B Ojwang, S C Wanjala, & N.S Njoki, SCJJ
March 28, 2018.
Reported by Felix Okiri

Download the Decision

Jurisdiction jurisdiction of courts – jurisdiction of the Supreme Court- whether the Supreme Court could hear matters pending before the High Court - claim challenging the jurisdiction of the High Court in the Supreme Court - whether the Supreme Court could make a determination on whether the High Court had jurisdiction to hear a matter

Brief facts:
 The Applicant sought a stay of execution of the Court of Appeal’s order of March 2, 2018 allowing the Respondents’ appeal and remitting the petition to the High Court for hearing and determination on merit.
The application was based on the ground that the petition to the High Court having been filed on September 5, 2017, the six months period prescribed by article 87 (1) of the Constitution and section 75(2) of the Elections Act had expired on March 5, 2018.  Consequently, the Applicant averred that, the High Court had now no jurisdiction to entertain the petition.  The Applicants prayed that the instant Court be pleased to issue an ex-parte order of stay.
It was the Applicant’s contention that the Court of Appeal had made an error in remitting the petition for hearing and determination to the High Court, when the latter had no jurisdiction to effect such an order.

Issues:

  1. Whether the High Court had jurisdiction to entertain a petition after the lapse of six months period prescribed by article 87 (1) of the Constitution and section 75(2) of the Elections Act
  2. Whether the instant Court had jurisdiction to hear the matter Read More..

Held:

  1. The application before the instant Court was a unique one in that the Applicants sought to impugn the jurisdiction of the High Court during the pendency of proceedings in that Court. A party that sought to challenge the jurisdiction of a court before which were pending proceedings, had to ideally do so before that court. 
  2. Every superior court, when faced with a jurisdictional challenge, had the competence to determine whether it was seized with jurisdiction or not. Yet, in the instant case, the Court was faced with a situation, where the jurisdiction of the High Court was being questioned in the Supreme Court, while the same issue was live before the High Court.
  3. The question before the Court was also awaiting determination by the High Court; it would have been premature for the Court to make a pronouncement in terms of the prayers in the notice of motion. Consequently, making a determination on the question of jurisdiction would have amounted to a usurpation of the jurisdiction of the High Court. 
  4. Any party that was to be aggrieved by the High Court’s decision would not in any way be deprived of redress as he or she had recourse through the normal appellate process.
  5. In view of the fact that that was an election petition, the proceedings before the High Court and appeal(s), if any, that could be preferred from its decision were to be disposed of expeditiously.

The application dismissed with no order as to costs.

STATUTES Rationale Behind Rule 5(1) and (9) of the Evidence (Out of Court Confession) Rules 2009

Republic v Patrick Mwangi Gitau & 3 Others
Criminal Case (Murder) No 64 of 2015
(Formerly Nakuru HC.CR.C 101 of 2014)
High Court at Naivasha
C Meoli, J
March 6, 2018
Reported by Ribia John and Sandra Mosoti
Download the Decision

Statutes – interpretation of statutes - Evidence (Out of Court Confession) Rules rule 5(1) and (9) - what was the rationale behind rule 5(1) and (9) of the Evidence (Out of Court Confession) Rules that required for accused persons to be cautioned of the effect of any statements they made in confession. – Evidence Act Cap 80 Laws of Kenya – Evidence (Out of Court Confessions)Rules 2009
Evidence Law –– confessions – procedure of taking confessions – procedure of taking confessions – requirement to issue a caution – where the words used in issuing the caution administered were not the exact words used in rule 5(1) of the Evidence (Out of Court Confession) Rules 2009 – whether in administering the caution in rule 5(1) of the Evidence (Out of Court Confession) Rules 2009, the officer had to ensure formal compliance by use of the precise words therein - Evidence (Out of Court Confession) Rules 2009 rule 5(1).
Evidence Law – confessions – admissibility of confessions – factors vitiating admissibility of confessions - inducement, threat or promise as factors vitiating admissibility of confessions – whether the use of the statement ”go tell the truth which will set you free” amounted to a promise having to have reference to the charge against the accused person lifted.– whether the presence of a person in authority whilst giving a confession amounted to intimidation - Evidence (Out of Court Confession) Rules 2009 rule 5(1) and 9

Brief facts:
 The four Accused were charged before the High Court of Kenya at Nakuru with the murder of Lucy Wambui Ngei, a sister in law to the 3rd and 4th Accused persons.  The 3rd and 4th Accused had been arrested about seven days prior to the day the statement was recorder by the magistrate and held by police in Dagoretti before being handed over to Naivasha Police and on the same date taken before the Trial Court.   At the recording Court, the two Accused women appended their signature to a document. That document was the confession in dispute. A trial within trial was held at the Trial Court upon the defense objection to the production of the said confession.
The defense presented two arguments in objection. Firstly, they argued that the statement in question was not lawfully taken, as no caution was administered to the 3rd Accused, before they made the statement in question. They cited non-compliance with rule 5(1) and (9) of the Evidence (Out of Court Confession) Rules 2009 (the Rules). Secondly, that the said Accused was intimidated by the OCS who allegedly remained present during the session.
The DPP argued that part 1 of the confession in dispute comprised a caution. Part 1 of the confession read  “… I have no objection to making this confession in presence of officers mentioned above.  I have not been forced, coerced or threatened to make this statement.  I am making this statement voluntarily…”.
 During the examination of PW1, the magistrate who took down the confession, she admitted that she did ask the Accused if the Accused was willing to make a statement to which both the 3rd and 4th Accused confirmed. She also said that she explained to the Accused orally that she was not obligated  to say anything but what the Accused said would be recorded. She said she treated the first paragraph of the proceedings as a caution.

Issues:

  1. What was the rationale behind rule 5(1) and (9) of the Evidence (Out of Court Confession) Rules 2009 that required for accused persons to be cautioned of the effect of any statements they made in confession?
  2. Whether in administering the caution in rule 5(1) of the Evidence (Out of Court Confession) Rules 2009, the officer had to ensure formal compliance by use of the precise words therein.
  3. Whether confessions given in Kiswahili but recorded in English were admissible.
  4. Whether the use of the statement ”go tell the truth which will set you free” amounted to a promise to have the charge against the accused person lifted.
  5. Whether the presence of a person in authority whilst giving a confession amounted to intimidation.Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 49 (1)
Rights of arrested persons
(1)An arrested person has the right—
(a)to be informed promptly, in language that the person understands, of—

(i) the reason for the arrest;
(ii) the right to remain silent; and
(iii) the consequences of not remaining silent;

(b) to remain silent;
(c) to communicate with an advocate, and other persons whose assistance is necessary;
(d)not to be compelled to make any confession or admission that could be used in evidence against the person;
(e) to be held separately from persons who are serving a sentence;
(f) to be brought before a court as soon as reasonably possible, but not later than—

(i) twenty-four hours after being arrested; or
(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;

(g) at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and
(h) To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

Evidence Act , Cap 80 Laws of Kenya
Section 25A
25A.Confessions generally inadmissible
(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.
(2) The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.

Evidence (Out of Court Confessions) Rules, 2009
Rule 5
5. Caution to the accused person
(1) The recording officer shall caution the accused person in the following terms and shall record his response—

“Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.”

(2) While recording the confession, the recording officer shall ensure, and record compliance, that where the confession session is prolonged, the session included rest and relaxation periods.
(3) The recording officer shall ensure that the confession is recorded at the same time it is made and shall record the date and time of commencement of the confession session and the place where the confession is recorded.

Rule 9
9 ) Certificate of confession
The recording officer shall ensure that the written confession or electronic recording media contains the following certificate at the end of the confession, in the original language of the accused person—

“I have read the above statement and I have been told that I can correct, alter or add anything I wish. The statement is true. I have made it of my own free will.”

Held:

  1. Section 25 of the Evidence Act defined a confession and stated who could record a confession from a suspect. The provisions of sections 25 and 26 of the Evidence Act were consistent with the right against self-incrimination as guaranteed in article 49(b) and (d) of the Constitution.  The Evidence (Out of Court Confessions) Rules, 2009 (the Rules) stipulated the manner in which confessions could be obtained from Accused persons. The Rules bound judicial officers who recorded confessions in the same manner they bound police officers who acted as recording officers. Rule 5(1) in particular provided that the recording officer had an obligation to caution the accused of the implications of their statements.
  2. Where a prisoner was questioned by a judicial officer without any warning the confession could not be regarded as voluntary, and all the more so if he was questioned on an inadmissible confession. An accused person had to be cautioned by the magistrate that he needed not say anything unless he wished, and the record should have shown that in spite of the caution, the accused still wanted to make a voluntary statement.  The judicial officer must have satisfied himself by all reasonably possible means that the statement about to be made to him was entirely voluntary.
  3. The administration of the caution was the safeguard for ensuring the voluntary nature of a statement recorded in an extra judicial setting.  The Magistrate via her evidence in the instant case severally confirmed that she did administer the caution, albeit in words other than stated in the Rules and further did not record in the statement the words therein.
  4. The 3rd Accused’s words implied that the Trial Court had inquired into the voluntariness of the statement, and although the words used in rule 5 (1) of the Rules may have not appeared in the said portion, the Court recalled that the rationale behind rule 5 was not so much formal compliance by use of precise words therein, which could be inserted without a caution being actually administered.  Rather, the rationale behind rule 5 and indeed the entire Rules was the assurance by the recording officer that the statement was voluntary.  The same could be said of the requirement of rule 9 of the Rules which called for a certificate of voluntariness to be completed by the recording officer.
  5. Though the Trial Court did not comply with the formal requirements of rule 5(1) of the Rules, the Trial Magistrate was at pains to confirm that the 3rd Accused statement was not forced.  It was difficult to believe the defense version of events that transpired during the session, to the effect, that the 3rd Accused merely narrated events of her arrest while the remainder of the session involved a dialogue between the OCS and the Trial Court.   Implicit in that was the suggestion that the two made up the contents of the statements.  The Instant Court questioned what interest the Trial Court would  have to behave in such a manner.  Besides the two Accused signed the disputed statement.  There was no evidence that they were forced to do so.
  6. Rule 9 of the Rules also related to voluntariness of the confession.  The record showed that the OCS was present during the recording of statement.  The Trial Magistrate denied that.  However the 3rd Accused’s opening statement suggested otherwise.  There was also another police officer, a corporal, and the court clerk.  What the 3rd Accused claimed OCS had told her on the way to court could not amount to a threat:  To “go tell the truth which will set you free” – a common statement which would not necessarily refer to temporal freedom.
  7. She revised that statement in cross-examination by stating that she was promised that she would gain freedom if she recorded a statement.  That was irreconcilable with her opening words as recorded by the Trial Court.  Her sister who later on became the 4th Accused who accompanied her throughout made no reference to such words nor did that the OCS threatened the 3rd Accused while in the Trial Court’s chamber.  The Police Officer in question denied that the OCS participated in the recording session and intimidated the 3rd Accused.  She also stated that after the statement was ready, the sisters got a copy which they read, even after she had read it over to them both.  Thereafter they appended their signatures to the statement. It was not put to the Trial Magistrate that she and the OCS invented the contents of the statement as the two Accused sat watching a verbal exchange between them. 
  8. The mere presence of a person in authority such as the OCS if true did not necessarily mean that the 3rd Accused was intimidated.  In her own evidence, the 3rd Accused was unable to state precisely how the OCS threatened her before and during recording of the statement, regarding the latter only stating that she was somehow intimidated.
  9. Besides, the recording officer for purposes of the impugned statement was the Trial Magistrate, who had taken steps to assure herself of the voluntary nature of the statement.  That was the crux of the matter.  Other issues raised regarding language used in the statement appeared to be an afterthought as the two Accused understood English and read the statement on their own after it had been read to them, before signing.
  10. There was nevertheless, an established procedure which was normally followed by judicial officers and which was designed to the same end, namely, to ensure that a statement taken by a judicial officer was a voluntary one. To that end, the Instant Court certainly thought it advisable that a Magistrate who was about to take a statement should have administered a caution in the normal form as laid down in the Judges’ Rules. If there was anything to suggest that the failure to administer a caution had resulted in the making of a statement which was not voluntary a judicial officer might have well in the exercise of his discretion, rejected the statement.
  11. Notwithstanding the lapse occasioned by formal non-compliance with rules 5 and 9 of the rules, the Trial Magistrate took the necessary steps to ensure that the statement by the 3rd Accused was voluntary.  Further, the failure to administer the formal caution in certain words or to prepare a certificate could not, without more, be evidence that the making of the statement was not voluntary.  The court did not see anything in the session described to suggest that the statement by the 3rd Accused was not voluntary
  12. The impugned statement was voluntarily made and was admissible. The Accused made and signed the statement voluntarily and their present denials were an afterthought which were incapable of belief.

Application dismissed

DISABILITY LAW Factors to Consider in an Application for Orders of Custody, Management and Guardianship over a Person Suffering from a Mental Disorder

In re N M K
Misc. Application No. 73 of 2017
High Court at Kiambu
J Ngugi , J
November 23, 2017
Reported by Ribia John and Sandra Mosoti
Download the Decision

Disability Law – guardianship - application for orders of custody, management and guardianship over a person suffering from mental a mental disorder - factors to consider before a court can grant orders of custody management and guardianship over a person suffering from Mental disorder – Mental Health Act Cap. 248 Laws of Kenya sections 26 and 27.

Brief Facts:
The Applicant made an application for orders of custody, management and guardianship over a person suffering from a mental disorder under sections 26 and 27 of the Mental Health Act. She sought to be granted orders for custody management and guardianship over her daughter (the Subject) and the property she owned. The Subject was suffering from mental disorder.
The property which the Subject owned was land which the Applicant had acquired but had later sub divided her property to her children. The Applicant was directed to serve all the living siblings of the Subject with the application. It is from there that the Objectors to the application arose; two brothers of the Subject. 

Issue:

  1. What were the factors to consider before granting an applicant orders for custody, management and guardianship over persons and estates of persons suffering from mental disorder? Read More...

Relevant Provisions of the Law
Mental Health Act, Cap. 248 Laws of Kenya
Section 26 and 27
26. Order for custody, management and guardianship
(1) The court may make orders—

(a) for the management of the estate of any person suffering from mental disorder; and
(b) for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.

(2) Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of any such person.
(3) Whereupon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think fit for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder.

27. Power of manager in respect of estate
(1) Where a manager is appointed under this Part, the court may order that the manager shall have such general or special powers for the management of the estate as the court considers necessary and proper regard being had to the nature of the property whether movable or immovable, of which the estate may consist:
Provided that—

(i)      
(ii)      no manager may invest any funds belonging to the estate of which he is manager in any company or undertaking in which he himself has an interest, nor on the purchase of immovable property under the authority of paragraph (d) of section 4(1) of the Trustee Act without the prior consent of the court.

(2) Where the person appointed to be manager of an estate or guardian of a person under this Part is unwilling to act gratuitously, the court may fix such allowance to be paid out of the estate of the person in respect of whom the manager or guardian has been appointed as, in the circumstances of the case, the court may think fit
(3) Any manager appointed under any other law in force before the commencement of this Act shall be deemed to have been appointed under this Act as from such commencement, but shall not be required to file any inventory or statement under subsection (1) of section 33 if he has already done so before such commencement.
(4) For the purposes of this Act and the Penal Code (Cap. 63), a manager shall be deemed to be a trustee under any other law for the time being in force.

Held:

  1. All the parties were primarily concerned about the Subject’s property and what would happen to it yet showed little or no interest in the welfare of the Subject. The motive of one of the Objectors to the application was to dispose of the Subject’s property.
  2. The disposition granting custody, management and guardianship to the Applicant against the Subject’s property was not measured to cater for the needs of the Subject but the Applicant’s overall views about who should inherit the Applicant’s land. The Applicant still regarded the land belonging to the Subject as the Applicant’s land to do as she wished.
  3. The position appeared to be the same for the Objectors. Each of them was primarily interested in the Subject’s land; with each giving proposals that the title should be registered in the joint names of all the siblings.
  4. In considering an application brought under sections 26 and 27 of the Mental Health Act, the Court was guided by three main factors:
    1. There had to be medical evidence warranting  the determination by the Court that the Subject suffered from mental disorder;
    2. The person to be appointed to be either a guardian or manager had to be fit to be so appointed;
    3. The Court had to be satisfied that a proposed manager would utilize her powers for the benefit and welfare of the Subject.
    The overriding principle in applying the above is that the welfare and best interests of the Subject must be the overall guiding principle.
  5. While the instant Court was persuaded by the Medical Report that indicated that the Subject had developmental deficits which met the standard set in section 26 of the Mental Health Act, the Application being made at that point appeared disingenuous and drove by the need to dispose of the Subject’s property. The Subject had the self-same described deficits when the Applicant conveyed the properties in question to her. It appeared problematic at best to turn around twenty years later to bring the instant Application.
  6. The instant Court was not satisfied that the Application had been brought in the best interests of the Subject or that the Subject’s property would be used in her best interests. It was on record from the Applicant that she planned to convey the Subject’s property to her grandchildren and only leave a small portion to the Subject.
  7. The Applicant was not a fit person to be appointed as either a guardian or manager to the estate of the Subject because the Applicant was not only advanced in age and showed worrying signs of old age; but was also unnecessarily combative and aggressive. It wouldn’t serve the Subject’s best interests to appoint her as either guardian or manager.

Application dismissed.

STATUTES Court grants extension of time for compliance with court orders.

Anthony Otiende Otiende v Public Service Commission and 2 others
Petition No. 54 of 2015
High Court at Nairobi
E C Mwita J
January 31, 2018
Reported by Angela Sang and Robai Nasike Sivikhe

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Statutes- application and implementation of statutes- suspension of regulations by court orders- extension of time within which the regulations that were suspended ought to be approved and applied- whether the Applicant had complied with the court order to promulgate regulations and land registration forms including forms for title deeds and leases that were valid- Whether the court could extend time within which the Ministry of Lands could come up with new forms and regulations to regularize the invalidity

Brief Facts:
In a judgment delivered on December 19, 2016, the High Court found various forms and other documents used at the Ministry of Lands and Physical Planning (the Applicant) to be invalid and made a declaration of invalidity.  However due to public interest, the court suspended that declaration and gave the Applicant twelve months to come up with new forms and regulations to regularize the invalidity. Following the said judgment, the Applicant put in place a task force to come up with draft regulations after consultations with relevant stakeholders.  The task force concluded its work in June 2017 and handed in its report.  The Applicant then had the regulations signed and published in the Kenya Gazette after which they were submitted to parliament and were awaiting approval. Having not obtained the approval, the Applicant brought the instant application seeking an order of court to vary and grant extension of time to allow full compliance.

Issues:

  1. Whether the Applicant had complied with the court order to promulgate regulations and land registration forms including forms for title deeds and leases.
  2. Whether time for the application had already lapsed and therefore the court could not extend the time.
  3. Whether the Applicant perpetuated an illegality when he continued to use invalidated formsRead More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 159(2)(d)
In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.

Civil Procedure Rules
Review
Order 45
Any person considering himself aggrieved—

 (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

Civil Procedure Act
Review
 s.80
Any person who considers himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

Court of Appeal Rules
Institution of Appeals
s.82
Subject to rule 115, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged—

(a) A memorandum of appeal, in quadruplicate;
(b) The record of appeal, in quadruplicate;
(c) The prescribed fee; and
 (d) Security for the costs of the appeal:
Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy

Statutory Instruments Act (No. 23 of 2013)
Laying of statutory instruments before Parliament
(1) Every Cabinet Secretary responsible for a regulation-making authority shall within seven (7) sitting days after the publication of a statutory instrument, ensure that a copy of the statutory instrument is transmitted to the responsible Clerk for tabling before Parliament.
(2) An explanatory memorandum in the manner prescribed in the Schedule shall be attached to any statutory instrument laid or tabled under subsection (1).
(3) The responsible Clerk shall register or cause to be registered every statutory instrument transmitted to the respective House for tabling or laying under this Part.
(4) If a copy of a statutory instrument that is required to be laid before Parliament is not so laid in accordance with this section, the statutory instrument shall cease to have effect immediately after the last day for it to be so laid but without prejudice to any act done under the statutory instrument before it became void.

Held:

  1. The regulations were transmitted to parliament between November 27, 2017 and December 5, 2017. Up to that point the Applicant had discharged its mandate requiring it to have regulations in place.
  2. There was uncontroverted evidence that the regulations were transmitted to the National Assembly for purposes of approval as required by section 11 of the Statutory Instruments Act No. 23 of 2013.  After that process, the matter was no longer in the hands of the Applicant but the National Assembly.  To that extent, the Applicant had done that which was required of it and within its powers to comply with the judgment and decree of the Court.  It was not in a position to dictate to parliament when it should approve the regulations and forms.
  3. The judgment having been delivered on December 19 2016, in computing time, whether prescribed by law or order of Court, the date of the event or act after which the time began to run could not be included. Therefore, the last date by which the Applicant was required to have complied with the judgment was December 19, 2017. That was because the Applicant could not have done anything on the date the judgment was delivered.  The Respondent’s argument could only hold if the judgment had been delivered on December 18, 2016.There was no delay at all given that the application was filed before expiry of the 12 months.
  4. The High Court was not dealing with contempt proceedings or interpretation of the judgment of the court, rather it had been asked to consider whether or not to extend time to enable compliance. It was called upon to exercise its discretion and consider extending time to allow the applicant fully comply with its judgment and decree.
  5. The decision to suspend the declaration of invalidity of the forms, titles and leases was made with a heavy heart but in public interest. The Applicant had done what it was required to do and the matter rested with the National Assembly over which the Applicant had no control.
  6. The court had a duty to act judiciously in balancing rights and interests of parties before it in order to do justice. The Respondent had not shown that he would suffer any prejudice if the compliance period was extended albeit for a short time to allow the National Assembly complete the remaining phase of the process.
  7. The Applicant had made a case for extension of time to enable it attain full compliance. Moreover, the Applicant was seeking the court’s discretion, and extension of time being an act of exercise of discretion, as usual it was to be exercised judicially and under desirable circumstances. Those circumstances existed in the present situation, and the Applicant deserved the exercise of the court’s discretion.

Application allowed.
Orders

  1. The period of twelve months within which the 3rd Respondent /Applicant was required to have regulations and forms pursuant to section 110(2) of the LRA and seek Parliamentary approval pursuant to Section 11 of the Statutory Instruments Act, 2013 was reviewed and extended for a further six months from the date of the ruling.
  2. Failure to comply with no. 1 order  above, the default clause in the judgment and decree of December 19, 2016 would take effect. 
ADVOCATE Re-opening of a Criminal Prosecution after a 20 Year Delay is Unfair and amounts to an Abuse of Court Process

Diamond Hasham Lalji and another vs the Attorney General and 4 Others
Civil Appeal No 274 Of 2014
Court of Appeal at Nairobi
E M Githinji, H M Okwengu, J Mohammed, JJA
January 19, 2018
Reported by Ian Kiptoo

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Judicial review-judicial review orders-certiorari and prohibition-leave to amend-amendment of grounds and reliefs-where a party sought leave to amend a statutory statement-addition of new grounds and reliefs-whether a grant of leave to amend a statutory statement in a judicial review amounted to leave to seek new additional grounds and relief-Civil Procedure rules, 2010, order 53 rule 1(1), 4(1) and 4(2)
Constitutional Law-office of the Director of Public Prosecution(DPP)-exercise of discretion on whether to prosecute by the DPP-where  the Attorney General had discontinued and closed a case before the promulgation of the Constitution of Kenya, 2010-whether the DPPs’ action of re-opening the criminal proceedings against the Appellants, which had been discontinued and closed by the Attorney General before the promulgation of the Constitution of Kenya, 2010, was an abuse of court process-Constitution of Kenya, 2010,  article 157 (10) and (11); The Constitution of Kenya 1963(Repealed), section 26(8)
Constitutional Law-office of the DPP-exercise of discretion on whether to prosecute by the DPP-circumstances in which court would stop the re-opening of a criminal prosecution-where there was a 20 year delay to prosecute the case-claim that prosecution was conducted for purposes of private interests as opposed to public interest-whether the decision by the DPP to prosecute the Appellants after a 20 year delay would be an abuse of Court process
Jurisdiction-jurisdiction of a criminal court vis-a vis a commercial court-where a criminal matter involved interpretation and application of company law- whether the Criminal Court was the proper forum to determine the dispute as it involved interpretation and application of company law

Brief Facts:
The Appellants sought leave to file a judicial review application for an order of prohibition to prohibit the Attorney General, Director of Public Prosecutions, (DPP) Commissioner of Police and the Ethics and Anti-Corruption Commission, the Respondents, either jointly or severally from charging or prosecuting the Appellants. Furthermore, the Appellants averred that the decision by the DPP to recall and review a file which he had himself closed on behalf of the Attorney General and in the absence of discovery of new and important matters and without informing the Appellants of their right to be heard was an abuse of power conferred by article 157 of the Constitution of Kenya, 2010 (Constitution).
The Appellant further stated that prosecution for an offence allegedly committed 20 years ago without any explanation and justification of delay was oppressive, unjust and tantamount to an abuse of criminal process.

Issues:

  1. Whether a grant of leave to amend a statutory statement in a judicial review amounted to leave to seek new additional grounds and reliefs.
  2. Whether the DPPs’ action of re-opening the criminal proceedings against the Appellants, which had been discontinued and closed by the Attorney General before the promulgation of the Constitution of Kenya, 2010, was an abuse of court process.
  3. Whether the decision by the DPP to prosecute the Appellants after a 20 year delay would be an abuse of Court process.
  4. Whether the Criminal Court was the proper forum to determine the dispute as it involved interpretation and application of company law Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 157(10);
 “The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.”

Article 157(11);
 “In exercising the powers conferred by this Article, the Director of prosecutions shall have regard to public interest, the interest of the administration of justice and the need to prevent and avoid abuse of legal process.”

Article 165(3) (d) (ii)
The High Court jurisdiction to hear:
the question whether anything said to be done under the authority of this Constitution or any other law is consistent with, or in contravention of this Constitution”.

The Constitution of Kenya,1963 (repealed)
Section 26(8)
“the Attorney General shall not be subject to the direction or control of any other person or authority.”

Civil Procedure Rules, 2010
Rule 4
 “(1) Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies if any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereinafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and reliefs set out in the said statement.
 (2) The High Court may on hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising from the affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and any proposed amendment of his statement, and shall supply on demand copies of any such further affidavits”

Criminal Procedure Act
Section 193A
“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”

Held:

  1. Section 9 of the Law Reform Act gave the Court power to make rules to regulate applications for order of mandamus, prohibition and certiorari and stipulated the matters which might have been regulated by the rules. The matters included the requirement that leave ought to have been obtained first.
  2. The rules in order 53 of the Civil Procedure Rules had been made pursuant to provisions of section 9 of the Law Reform Act. There was no dispute that leave to apply for orders of mandamus, prohibition and certiorari was a mandatory requirement under rule 1(1). Subject to Rule 1(2), the statement was required to set out the name and description of the Applicant, the relief sought and the grounds on which relief was sought.
  3. Since the Court had power to allow the amendment to the statement which contained the grounds on which relief was sought and the relief itself, then new grounds and reliefs could be introduced by amendment. A true construction of rule 1(2) read together with rule 4(1) and 4(2) was that whereas a party was prohibited from relying on grounds of relief and the relief itself other than the ones contained in the statement, if leave to amend was granted, a party could amend the statement and rely on the additional grounds and seek additional reliefs.
  4. There was no requirement in the rules that a party that sought leave to amend the statement ought to have made a fresh application for leave. A judge that considered an application for leave to amend the statement exercised the same discretion as a judge to whom the Application for leave was first made. Before granting leave to amend, a judge had to exercise the discretion judicially and satisfy himself that the new grounds raised and the new reliefs sought by the amendment disclosed an arguable case. Thus, an order granting leave to amend was ipso facto a grant of leave to seek judicial review on the basis of the additional grounds and to seek additional reliefs.
  5. The Appellant had complied with the rules relating to the amendment of the statement and there being no objection raised by the respective counsel, leave was granted and ultimately effected. The leave so granted had never been set aside. It followed that High Court fell into error in finding that no leave to apply for additional reliefs had been applied for and obtained, and in striking the reliefs of certiorari and prohibition. The Court for those reasons, allowed the consolidated grounds of appeal which related to competence of the orders of certiorari and prohibition owing to absence of leave.
  6. Proceedings in the High Court were commenced and concluded before the Fair Administrative Action Act, 2015 came into effect on June 17, 2015. Article 47 of the Constitution which gave the right to fair administrative action as a fundamental right and the Fair Administrative Action Act which gave effect to article 47 had drastically transformed the procedural law on judicial review and conferred added jurisdiction to the High Court. The procedure for judicial review stipulated in section 9 of the Fair Administrative Action Act did not expressly require leave as a pre-requisite for commencement of an application for judicial review and section 11 conferred jurisdiction on the Court to grant any relief which was just and equitable including declaration of rights, injunctions and the setting aside of the administrative action.
  7. Before the promulgation of the Constitution of Kenya, 2010, on August 27, 2010, the custodian of the prosecutorial powers of the State were vested in the Attorney General by the 1963 Constitution (repealed). Section 26(3) of the repealed Constitution gave powers to the Attorney General to institute and undertake criminal proceedings, to take over and continue criminal proceedings instituted by another person or authority, and to discontinue any criminal proceedings. The office of the Director of Public Prosecution existed under the repealed Constitution as a department in the office of the Attorney General. The Director of Public Prosecution performed his duties under the superintendence of the Attorney General.
  8. The Constitution of Kenya, 2010 restructured the Executive and other state offices. The prosecutorial powers were transferred from the Attorney General and vested in the DPP who was nominated by a panel and appointed by the President with the approval of National Assembly. In addition, the Constitution had limited the tenure of the DPP to an eight year non-renewable term. Article 157 of the Constitution of Kenya, 2010 established the office of DPP and gave him similar powers regarding prosecutions as the repealed Constitution gave to the Attorney General, except that the DPP would not have discontinued a prosecution without the permission of the Court.
  9. In 2013, the National Assembly enacted the Office of the Director of Public Prosecutions Act No. 2 of 2013 (ODPP Act) which commenced on January 16, 2013 to give effect, inter alia, to article 157 of the Constitution of Kenya, 2010. Section 4 the ODPP Act stipulated the guiding fundamental principles which, in addition to the Constitution, guided the DPP in the performance of his powers and functions.
  10. One of the powers given to the DPP by section 5(4) (e) of the ODPP Act was to review a decision to prosecute or not to prosecute any criminal offence. Furthermore, he had power under section 5(1) (c) of the ODPP Act to formulate and keep under review a public prosecution policy. Section 57(1) of the ODPP Act stipulated that the application of the Act extended to offences committed, prosecutions, appeals, and revisions brought before or commenced before the commencement of the ODPP Act and section 57(3) provided that consent given before the commencement of the ODPP Act by the Attorney General, DPP to commence proceedings in relation to an offence would not be abated or affected.
  11. The DPP had formulated the National Prosecution Policy 2015 which repealed the 2007 prosecution policy. The policy, amongst other things, stipulated the factors to be taken into account before a decision to prosecute or not to prosecute was taken including the application of evidential test and public interest test and also the factors to be considered before a review of the decision to prosecute or not to prosecute was made.
  12. In addition, there were other principles of the Constitution which every public officer including the DPP ought to have taken into account in exercising his power in performing his functions including the supremacy of the Constitution, the national values which included rule of law, human dignity, transparency and accountability; and fundamental rights and freedoms, an integral part of which included fair administrative action and right to fair trial.
  13. The jurisdiction of the High Court as enshrined in article 165(3) (d) (ii) was distinct from the common law inherent jurisdiction of the High Court or indeed any other court to control its own process by preventing the prosecution of a criminal proceeding which amounted to abuse of court process. However, considering that the DPP had a constitutional duty to prevent and avoid abuse of legal process and that what constituted abuse of legal process was the same in both jurisdictions, the exercise of discretion by the DPP could be impugned by the High Court on constitutional grounds without invoking the inherent jurisdiction of the Court. Therefore, there could not be any doubt that the prosecutorial discretion of the DPP was not absolute. It was limited by article 157(11) of the Constitution which specified the mandatory considerations that underlay the exercise of discretion; by the constitutional principles to which the Court had referred and by statute.
  14. The elements of public interest and the weight to be given to each element or aspect depended on the facts of each case and in some cases; State interest might have outweighed societal interests. In the context of the interest of the administration of justice, it was in the public interest that persons reasonably suspected of committing a crime were prosecuted and convicted, punished in accordance with the law, that such a person was accorded a fair hearing and that court processes were used fairly by state and citizens.
  15. It was also indubitable that the constitutional prosecutorial power of the DPP was reviewable by the High Court as article 165(2)(d)(ii) of the Constitution ordained. However, the doctrine of separation of powers ought to have been respected and the Courts would not have unjustifiably interfered with the exercise of discretion by the DPP unless it was exercised unlawfully by, inter alia, failing to exercise his/her own independent discretion; by acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual.
  16. The DPP was entitled to make errors within his constitutional jurisdiction and the decision would not be reviewed solely on the ground that it was based on misapprehension of facts and the law. Furthermore, authority showed that courts were generally reluctant to interfere with prosecutorial decisions made within jurisdiction.
  17. Although section 26(3) of the repealed Constitution did not expressly give power to the Attorney General, power to review was a right inherent in the prosecution process which facilitated the effective performance of his duties under the repealed Constitution. Although, when the DPP reviewed the decision of the former Attorney General on February 23, 2012, the ODPP Act which expressly gave the DPP power to review his decision was not in place, the 2010 Constitution was in place and the DPP had assumed all the powers of the former office of the Attorney General in respect to prosecutions.
  18. Clause 31(5) and 33 of the Transitional and Consequential provisions in the Sixth Schedule of the Constitution of Kenya, 2010 provided a seamless transition of functions of the office of the Attorney General under the repealed Constitution to the office of the DPP under the Constitution of Kenya, 2010. Under clause 31(5), the functions of the DPP were to be performed by the Attorney General under the Constitution of Kenya, 2010 until the DPP was appointed and by clause 33, the office of the DPP was the legal successor of the office of the Attorney General in so far as prosecutorial powers were concerned.
  19. Since the powers of the DPP were exercised in the public interest, there could not be any estoppel against execution of a public duty conferred by the Constitution or statute. The decision of his predecessor became his own and by succeeding to the office he had power to do what his predecessor could have done. Therefore, the decision of the High Court that the DPP had jurisdiction to review the decision of his predecessor in title was correct. However, whether or not the decision ought to have been re-opened would be considered later.
  20. Article 10(1) provided that national values bound all state officers whenever any one of them applied or interpreted the Constitution. Furthermore, the Constitution in article 259(1) incorporated the principles to be employed in its interpretation which included the promotion of its purposes, values and principles, human rights and fundamental freedoms in the Bill of Rights.
  21. The exercise of prosecutorial discretion enjoyed some measure of judicial deference and as numerous authorities had established, the Courts would not interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. Although the standard of review was exceptionally high, the Court’s discretion ought not to have been used to stultify the constitutional right of citizens to question the lawfulness of the decisions of the DPP. The burden of proof rested with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence was adduced that established a breach, the evidential burden shifted to the DPP to justify the prosecutorial decision.
  22. The categories of abuse of process were not closed. Whether or not an abuse of power of criminal process had occurred ultimately depended on the circumstances of each case. One of the important factors at common law which underlay a prosecutorial decision was whether the available evidence disclosed a realistic prospect of a conviction.
  23. In considering the evidential test, the Court ought to have only been satisfied that the evidence collected by the investigative agency upon which the DPP’s decision was made established a prima facie case necessitating prosecution. At that stage, the Courts would not hold a fully-fledged inquiry to find if evidence would end in conviction or acquittal. That was the function of the High Court. However, a proper scrutiny of facts and circumstances of the case were absolutely imperative.
  24. Unreasonable delay was not confined to cases where the effect of delay would cause prejudice to the accused by rendering the trial unfair. Delay in itself if sufficiently prolonged would be so unfairly and unjustifiably oppressive as to amount to an abuse of the process of the Court. However, the Court would not create any form of artificial limitation period for criminal process unless there was evidence that the Criminal Court was being used improperly to harass a citizen. Those decisions had to be read in light of article 259(8) of the Constitution which provided that if a particular time was not prescribed by the Constitution for performing a required act, the act ought to have been done without unreasonable delay. In addition, article 47 gave a right, inter alia, to an expeditious administrative action. Therefore, the Court was satisfied that the High Court failed to adequately appreciate the nature of the Appellants’ case.
  25. The society had an interest in both the lawful exercise of prosecutorial powers and in employing a fair procedure that did not amount to oppression and persecution. The Constitution envisioned a just society. It would not be consistent with the values of the society as reflected in the Constitution if power was abused or unfair administration of justice was resorted to. Both would shock the conscience of the society and would result in the loss of confidence in the institution of the DPP and in the integrity of the judicial process.
  26. The exercise of prosecutorial discretion in such a manner would be in contravention of the Constitution and the Court had power to intervene regardless of the seriousness of the alleged offence or the merits of the case. Article 2(4) of the Constitution provided that an act or omission in contravention of the Constitution was invalid. Where the abuse of process was based on the ground that the Applicant would not get a fair trial, the Court had discretion to grant an alternative remedy in the public interest that would guarantee a fair trial. Therefore, in laying emphasis on the personal prejudice that the Appellants would suffer and on the fairness of the trial rather than on the constitutional issues raised, the High Court misapprehended the Appellants’ case and applied the wrong test.
  27. The High Court failed to appreciate that abuse of process as alleged by the Appellants was an integral whole comprising of several elements including abuse of investigative powers, collateral purpose, unjust delay and unjustifiable review of the decision not to prosecute. It was evident from the judgment that the High Court looked at each of the elements separately and on its own merits and failed to consider the cumulative effect of those elements in public interest; the interest of administration of justice, public confidence in the administration of justice and the integrity of judicial process. It was only after assessing the qualitative and the combined effect of the elements constituting the abuse of process that a proper determination on whether or not the constitutional threshold for prosecution had been met could be made.
  28. Furthermore, the High Court did not consider the whole spectrum of the Appellants’ case from the time the alleged offences were committed up to the time the decision to review the decision not to prosecute was made. The Appellants were questioning the lawfulness of the exercise of the discretion to prosecute viewed against the constitutional threshold. That was within the sphere of judicial review. They were not questioning the correctness or the merits of the decision made lawfully. That would be outside the sphere of judicial review. In addition, High Court erroneously failed to consider the events preceding the impugned decision particularly the previous decision of the Director of Criminal Investigations Department(CID) and the Attorney General respectively. Those previous decisions were relevant to the determination of the question whether the prosecution would be an abuse of process of the Court.
  29.  In the instant case, the High Court correctly appreciated that in spite of the provisions of section 193A of the Criminal Procedure Code, a commencement of criminal proceedings for a collateral purpose meant to force a person to submit to a civil claim would constitute an abuse of process but held that the predominant purpose of the commencement of the criminal proceedings was not to achieve a collateral purpose.
  30. The totality of the circumstances considered looked at objectively showed that:
    1. The 5th Respondent resorted to a criminal process 12 years after the alleged commission of the criminal offences.
    2. The 5th Respondent set in motion criminal investigations after he encountered frustrations in the prosecution of the previously instituted civil suits.
    3. The 5th Respondent exerted unusual and excessive pressure to the investigative agencies and even to other relevant administrative authorities to ensure that the Appellants were ultimately prosecuted.
    4. The fraud for which the Appellants were subjected to investigations and two reviews was fundamentally a commercial dispute between three brothers on one side and two brothers on the other, over the assets and business of a private family company which was already the subject of civil litigation.
    5. The predominant motive of the 5th Respondent and the second investigation in the preliminary report, disclosed that it was to repeatedly put pressure on the Appellants to settle the family dispute or vendetta and to secure restitution of assets and business after a successful prosecution.
    6. The preliminary report stated that the investigation involved complex corporate and legal issues.
  31. It was apparent from the nature of the dispute that the Criminal Court would be required to examine family agreements, family constitution, memorandum and articles of association of the first company, minutes, books of accounts and various documents executed by the 5th Respondent and allegedly left blank, nature of the assets and their market values in order to determine the validity of the resolution to sell the assets and business of the company and the validity of the ultimate sale. The Court would of necessity be called upon to interpret and apply company law to facts in dispute. It was therefore apparent that the Criminal Court was not the appropriate forum for investigation of the complaints reported to CID and to Kenya Anti-Corruption Commission (KACC) by the 5th Respondent.
  32. The element of culpable delay as a component of abuse of process as the recommendations of directors of KACC showed, was an insuperable factor in the prosecution as it would affect the quality of evidence. Due to lapse of time, the original file of the first company could not be traced, the company books of accounts were missing and a potential witness whose evidence was necessary to ascertain whether there was a quorum when the impugned resolutions of the company was made, had died. Thus, contrary to the finding of the High Court, the 20 year delay would cause prejudice to the Appellants by rendering the trial unfair.
  33. the fact that the 5th Respondent set in motion the criminal investigations twelve years after the commission of the alleged offences, and after encountering difficulties in the prosecution of the suits, the delay itself would, in the circumstances of the case be prolonged delay rendering the prosecution unfair and unjustifiably oppressive to the Appellants and thus amounting to abuse of process.
  34. The DPP had acknowledged that there were no new circumstances or evidence which informed the decision to review. Moreover, article 259(8) of the Constitution provided that if a particular time was not prescribed by the Constitution for performing a required act, the act could be done without unreasonable delay, and as often as occasion arose. Thus, review could be done without unreasonable delay so long as it was done in accordance with the principles of the Constitution.
  35. The DPP was required to consider the constitutional threshold for prosecution and the other relevant constitutional principles to which the Court had repeatedly referred, before making the impugned decision. Although a suspect had no right not to be prosecuted, he had by article 47, a right, amongst other things, to administrative action which was lawful, reasonable and procedurally fair.
  36. The DPP was bound by several constitutional principles including requirements of fairness and fair procedure. It was apparent in the case that the only substantial matter to be considered was delay in relation to sufficiency of evidence. The reasons that the DPP gave for review was that where there was sufficient evidence, long delay did not warrant closure of an inquiry file. In so deciding, the DPP went against the weight of principles that delay in itself if, sufficiently prolonged could amount to abuse of process and that if a party instituting proceedings did so for purposes alien to the purpose which the proceedings were designed to serve, the proceedings were an abuse of process, whether or not they were well founded in fact and law.
  37. Going by the decision letter, the DPP did not specifically consider the long history of the dispute and the recommendations of director of KACC which the Attorney General and the DPP, while acting in a different capacity had accepted and the latter decision of Director of KACC. Both directors of KACC were not only holding office in the investigative agency at different times but were also eminent jurists. The view of the Director of KACC that the long delay had occasioned loss of vital evidence on both sides and a vital witness and that it was not prudent to proceed with the criminal prosecution was accepted by the Attorney General and later affirmed upon review.
  38. The DPP did not, in the affidavit filed in the High Court, justify the decision to re-open other than relying on his broad discretion under the Constitution. He did not say that there was any error or oversight in the previous decision not to prosecute nor contend that a successful prosecution was possible despite the loss of vital evidence and a witness. The question of fairness of the prosecution and oppression in the light of the history of the dispute ought also to have been considered.
  39. Where the re-opening of a decision not to prosecute or to prosecute was based on discovery of new evidence, the persons sought to be charged ought to have been given an opportunity to comment on the fresh evidence by any appropriate means as a matter of fair procedure. The function of the DPP was to direct investigations and prosecute and not to adjudicate on the rights of the parties. To that extent, the function of the DPP was administrative and not judicial or quasi-judicial. Thus, the rules of natural justice did not strictly apply to his decision. However, that did not exonerate the DPP from employing fair procedure.
  40. Given that the DPP was being asked to re-open the decision three years after the initial decision and without any new evidence or new factors, the DPP ought to have informed the Appellants of the fresh representations and given them an opportunity to comment on the representations before the decision was ultimately made. That was because the DPP, before reaching his decision, was required to take into account the interest of the State, the interest of the victim and the interest of the suspect, all at the same time. In addition, the DPP ought to have considered whether any substantial public interest, other than the interest of the 5th Respondent to the protection of the law, would have been advanced by continuing with the prosecution.
  41. The remedy of prohibition was prospective and not retrospective. The remedy of prohibition was normally given to stay criminal proceedings which were an abuse of the process of the Court. The order sought by the Appellants before the amendment of the statement to prohibit the continuation of the criminal prosecution was in itself efficacious. If granted, it would have the effect of stopping the DPP from prosecuting with the result that the DPP would have no alternative but to withdraw the charges. Even without an order of prohibition directed to the trial Magistrate, the proceedings would not continue without a prosecution. Therefore, the High Court erred in finding that an order of prohibition as sought would not be efficacious.

Appeal allowed
Orders

  1. The decision of the High Court was set aside;
  2. The orders of certiorari and prohibition were granted in terms of prayer 1 and 2 of the amended notice of motion;
  3. No orders as to costs.

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