Weekly Newsletter 023/2018

Weekly Newsletter 023/2018



Kenya Law

Weekly Newsletter


Section 166 of the Criminal Procedure Code which Provides for a Finding of Guilty but Insane is Unconstitutional as the Sentence Imposed is Indeterminate and at the Executive’s Discretion.
Republic v SOM
Criminal Case No 6 of 2011
High Court at Kisumu
D S Majanja, J
April 30, 2018
Reported by Beryl A Ikamari
Download the Decision

Statutes-interpretation of statutory provisions-constitutionality of a statutory provision-constitutionality of section 166 of the Criminal Procedure Code which provided that in cases of a finding of guilty but insane, the sentence would be indeterminate and at the President's discretion-whether the imposition of such a sentence ought to be a judicial function which was to be undertaken independently by the Judiciary without the executive's involvement and whether the imposition of an indeterminate sentence was unconstitutional-Constitution of Kenya 2010, articles 28, 54(1)(a) , 2(6), 160, 25 & section 7(1) of the Sixth Schedule to the Constitution; Criminal Procedure Code (Cap 75), section 166.

Brief facts:
The Accused was convicted of the offence of murder. The Court made a special finding under section 166(1) of the Criminal Procedure Code to the effect that the Accused committed the act of killing but was insane. The Accused was to be kept in custody at Kisumu Maximum Security Prison pending the President’s order in accordance with section 166 of the Criminal Procedure Code.
The Accused questioned the constitutionality of section 166 of the Criminal Procedure Code and stated that it provided for a mandatory sentence which did not give the Court discretion in setting the sentence. He contended that the Court ought to impose a definitive sentence that met the facts and circumstances of the case. He relied on the case of Francis Karioko Muruatetu and another v Republic SCK Petition No. 15 and 16 of 2015 [2017] eKLR in which the preposition was made to the effect that a law that failed to take into account the peculiarities of each case was unconstitutional. That case declared the mandatory death sentence imposed for the offence of murder unconstitutional for various reasons.
 
Issue

  1. Whether for purposes of a finding that an Accused person was guilty but insane, the imposition of an indeterminate sentence at the discretion of the President was unconstitutional

Relevant provisions of the law
Criminal Procedure Code (Cap 75), section 166;
166. Defence of lunacy adduced at trial
(1) Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.
(2) When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct.
(3) The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.
(4) The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Minister for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President’s order and thereafter at the expiration of each period of two years from the date of the last report.
(5) On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.
(6) Notwithstanding the subsections (4) and (5), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (3), make a special report to the Minister for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.
(7) The President may at any time order that a person detained by order of the President under subsection (3) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he is detained or remains under supervision to either a prison or a mental hospital.

Held:

  1. Although the Francis Muruatetu Case dealt with the mandatory death sentence, the principles it espoused were applicable to the circumstances of the instant case. The provisions of section 166 of the Criminal Procedure Code on a finding of the Court that an Accused was guilty but insane were mandatory in nature. The Court had no discretion irrespective of the nature of mental illness or condition of the Accused. The ultimate sentence imposed would depend on the discretion of the President who would determine the conditions under which the Accused would serve the sentence either in a mental institution or a prison or whether the Accused would be discharged.
  2. The rights of a person with a disability included the right to be treated with dignity. Article 28 of the Constitution recognized the right to dignity and article 54(1)(a) of the Constitution provided for the right of a person with disability to be treated with dignity and respect and to be addressed and referred to in a manner that was not demeaning. Kenya was also a signatory to the Convention on the Rights of Persons with disability which was part of the laws of Kenya recognized in article 2(6) of the Constitution.
  3. Courts have cast doubts on the constitutional validity of provisions that imposed an indeterminate sentence at the instance of an authority other than the Courts. In AOO and 6 others v Attorney General and another NRB Petition No. 570 of 2015 [2017] eKLR, the Court found that detention of a child found guilty of the offence of murder at the President's pleasure was unconstitutional. It was held that the indeterminacy of the sentence exacerbated the cruel, inhuman or degrading nature of the sentence as the period of incarceration was unknown to the Accused and depended on the President's discretion. The Court also held that leaving the length of the sentence to the discretion of the President violated article 160 of the Constitution which provided for the independence of the Judiciary.
  4. The vesting of discretion on how the Accused would be treated after conviction on the executive was inimical to the fundamental duty of the Judiciary to determine the guilt of the Accused and terms upon which he or she would serve the sentence. By vesting discretionary power on the executive and taking away the judicial function to determine the nature of the sentence to be imposed after the special finding was made, section 166 of the Criminal Procedure Code went contrary to article 160 of the Constitution and was unconstitutional. It also violated the right to a fair trial as protected under article 25 of the Constitution.
  5. Under section 7(1) of the Sixth Schedule to the Constitution, the Court was entitled to construe existing laws, such as the Criminal Procedure Code as one of the ‘existing laws’ that continued to be in force, with such modifications, adaptations, qualifications and exceptions necessary to bring its provisions into conformity with the Constitution. The defect in section 166 of the Criminal Procedure Code was that the review of the sentence was to be done by the President and not the Court and hence reference to "the President" under that section had to be read to mean "the Court." In effect, the modification would mean that the Accused would be brought before the Court periodically for a review of the matter. If necessary the Court would call for evidence including the evidence of experts before making an appropriate order within a framework of a definite period of detention to be imposed by the Court.
  6. The Accused had been in custody since the year 2011. Pursuant to a directive of the Court, the Probation Service provided a report on the social circumstances of the Accused dated February 5, 2018. The report said that his family and the community were not prepared to accept him back home due to fear of his past antecedents. The report recommended that the Accused was not suitable for a non-custodial sentence as he was not in a mental state to comprehend the conditions of a non-custodial order. Additionally, a consultant psychiatrist examined the Accused and concluded that he was not in control of his mental faculties and that he would benefit from further treatment.
  7. Considering the circumstances of the offence, its gravity and the mental state of the Accused, it was appropriate for him to be committed to a mental institution namely Mathari Mental Hospital for a term of fifteen (15) years subject to period review by the Court in accordance with section 166 of the Criminal Procedure Code and in any case before the expiry of every two (2) years.
Application allowed.
Kenya Law
Case Updates Issue 023/2018
Case Summaries

CONSTITUTIONAL LAW The Action to Deregister the Petitioner Violated the Petitioner’s Right to Fair Administrative Action and The NGO Co- Ordination Act

Kenya Human Rights Commission & another v Non-Governmental Organizaztions Co-ordination Board & another [2018] eKLR
Petition No 404 Of 2017
High Court at Nairobi
Constitutional and Human Rights Division
February 2, 2018
E.C Mwita, J
Reported By Felix Okiri

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Constitutional Law – fundamental rights and freedoms – right to fair administrative action - right to fair hearing – whether the Petitioner’s right to fair administrative action was violated where it was deregistered without being accorded an opportunity to be heard as required by article 47 of the Constitution - Constitution of Kenya, 2010, articles 27,28, 47 and 50
Administrative law – administrative functions – where the NGO Board advised and directed the Governor Central Bank of Kenya to freeze the accounts of the Petitioner, Commissioner General of KRA to collect taxes and Director of Immigration depot expatriates – whether that advise/direction was ultra vires – Constitution of Kenya, 2010, article 231 (3); Kenya Revenue Authority Act, section 3(1)
Statute law – procedure of deregistering an NGO - notice of the cancellation of a certificate of registration- whether such a notice was to be served on the Organisation in respect of whom such cancellation related- NGO Co-ordination Act, section 16

Brief Facts:
The 1st Petitioner Kenya Human Rights Commission was a body corporate registered under the Non-Governmental Organization Act, 1990. The Respondent was a Non-Governmental Agency established under the Non-Governmental Coordination Act, 1990 and exercised regulatory authority over all non-governmental organizations in Kenya.
The Executive Director of the Respondent circulated to the media a letter purporting to cancel the 1st Petitioner’s registration on grounds that the 1st Petitioner had committed some illegal acts including; operating illegal bank accounts, failing to pay tax and employing foreigners without valid work permits among other accusations. The 1st Petitioners stated that it was not aware of the allegations and that it was neither given notice of the allegations nor called upon to show cause.
The Petitioners stated that the Respondent’s actions contravened articles 27, 28, 47 and 50 of the Constitution. The Petitioners also stated that the Respondent’s action was ultra vires its powers by attempting to direct Kenya Revenue Authority, the Central Bank of Kenya, and Director of Immigration, independent Institutions on what to do in the performance of their duties.

Issue:

  1. Whether the Petitioner’s right to fair administrative action was violated where it was deregistered without being accorded an opportunity to be heard as required by article 47 of the Constitution
  2. Whether the actions of the NGO Board in advising and directing the Governor Central Bank of Kenya to freeze the accounts of the Petitioner, Commissioner General of KRA to collect taxes and Director of Immigration depot expatriates was ultra vires Read More...

Relevant provisions of the law
NGO Co-ordination Act.
Section 16
(1)The Board may cancel a certificate issued under this Part, if it is satisfied that—

(a) the terms or conditions attached to the certificate have been violated; or
(b) the organisation has breached this Act; or
(c) the Council has submitted a satisfactory recommendation for the cancellation of the certificate.

(2) Notice of the cancellation of a certificate shall be served on the Organisation in respect of whom such cancellation relates and shall take effect within fourteen days after the date of that notice.

Section 19 (1)
Any organization which is aggrieved by the decision of the Board
made under this Part may, within sixty days from the date of the
decision, appeal to the Minister.

Constitution of Kenya
Section 7(1) of the Sixth Schedule
all law in force immediately before the effective date continues to be in force but shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this constitution.

Held:

  1. It was apparent that the 1st Petitioner was deregistered without being accorded an opportunity to be heard as required by article 47 of the Constitution, despite the fact that it had been operating in Kenya for over 25 years and was in compliance with the law and regulations throughout its operations. The Respondent’s action to deregister or cancel the first Petitioner’s registration was an administrative action that affected the Petitioner’s right to exist and operate within the country.
  2. Section 16 of NGO Co-ordination Act was clear that the notice for cancellation of registration of an NGO had to be served to the NGO concerned and it was only to take effect after 14 days of the notice. Section 19(1) provided for the procedure for appealing against such a decision. Under section 19(3) the minister was required to issue a decision on such appeal within thirty days from the date of the appeal. Any aggrieved organization could thereafter appeal to the High Court and the Court’s decision was to be final.
  3. Any action taken against a non -governmental organization had to be in accordance with the law because it was only then that an aggrieved party could exercise the right of appeal provided for in the Act. Such actions being administrative in nature were also subject to the Constitution.
  4. Article 47(1) of the Constitution was in mandatory terms that every person had a right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) made it even more forceful that if a right or fundamental freedom of a person had been or was likely to be adversely affected by administrative action, the person had the right to be given written reasons for that action.
  5. Article 260 of the Constitution defined a ‘person’ to include a company, association or other body of persons whether incorporated or not. In that regard, the first Petitioner was a person for purposes of article 47 of the Constitution in that its right as an entity was adversely affected by the Respondent’s impugned decision and was therefore entitled to an administrative action that was not only procedurally fair and lawful but also reasonable. It was equally entitled to a hearing before the adverse action was taken against it.
  6. The Constitution was the supreme lawof the Republic and was decreed as such in article 2(1). It bound all persons and all state organs in the course of performing their duties. The provisions in article 47 to the extent that they required that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affected a person’s right or fundamental freedom, the affected person was entitled to be given written reasons for the action, was a constitutional control over administrative bodies to ensure that they did not abuse their power and that individuals concerned received fair treatment when actions were taken against them. Failure to observe that constitutional decree, undermined the rule of law and the value of article 19(1) of the Constitutionwhich stated that the Bill of Rights was an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies.
  7. Although the right to just administrative action was entrenched in Kenya’s Constitution in recognition of the importance of the common law governing administrative review, it was not correct to see the provisions on fair administrative actions as a mere codification of common law principles. The right to just administrative action was now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law were to be important though not necessarily decisive, in determining not only the scope of fair administrative actions but also its content. The principal function of fair administrative actions was to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affected or threatened individuals, the procedures followed complied with the constitutional standards of administrative justice. Those standards were to be informed by the common law principles developed over decades.
  8. Article 47(1) marked an important and transformative development of administrative justice for, it not only laid a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenched the right to fair administrative action in the Bill of Rights. The right to fair administrative action was a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies were now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.
  9. Article 47 was intended to subject administrative processes to constitutional discipline hence relief for administrative grievances was no longer left to the realm of common law or judicial review under the Law Reform Act but was to be measured against the standards established by the Constitution.
  10. The Respondent’s actions violated the 1st Petitioner’s right to a fair administrative action contrary to article 47 of the Constitution. Administrative actions that flowed from statutes had to meet the constitutional test of legality, reasonableness and procedural fairness. According a party a hearing before taking action against him was no longer discretionary. It was firmly entrenched Kenya’s Constitution as an inviolable right. It was an important safeguard against capricious and whimsical actions that led to abuse of authority by public bodies exercising administrative and quasi-judicial functions. Those no longer had place in Kenya’s constitutional dispensation.
  11. It was no longer even a mere legal requirement but a constitutional one that a person was entitled to be heard and that the action that was to be taken had to meet the constitutional test. Those taking administrative actions were bound by that constitutional decree failure of which rendered their actions unconstitutional, null and void.
  12. Any time the Respondent purported to exercise its powers under section 16 of the NGO Co-ordination Act, it had to realize that Kenya was in the post 2010 era and had to observe constitutional dictates, and the provisions of the Act and regulations made thereunder. The Respondent had to be alive to the provisions of section 7(1) of the Sixth Schedule to the Constitution.
  13. When applying the NGO Co-ordination Act, the Respondent had to act in a manner that was in conformity with and not in contravention of the Constitution. The Respondent purported to take action to cancel the first Petitioner’s registration in a raft of allegations but which it failed to defend in the instant petition. The purported notice of cancellation did not state when the alleged failures on the part of the 1st Petitioner took place. They were more of general than specific allegations to amount to a breach of the law.
  14. The notice itself did not even state if and when the Respondent carried out investigations and came to the conclusion that the first Petitioner’s conduct violated the conditions upon which it was registered. It was only after investigations and the 1st Petitioner given a chance to rebut any allegations made against it about certain failures, that the Respondent could make a determinate conclusion in the nature of blame against the first Petitioner. The Respondent’s action therefore violated the first Petitioner’s right to fair administrative action contrary to article 47 of the Constitution, the Fair Administrative Action Act and the NGO Co- ordination Act.
  15. Central Bank of Kenya was established under article 231(1) of the Constitution. Article 231 (3) was clear that the Central Bank of Kenya was not to be under the direction or control of any person or authority in the exercise of its powers or in the performance of its functions. The Respondent acted outside his mandate in advising the Central Bank to freeze the 1st Petitioner’s bank accounts.
  16. Just like the Central Bank, the Commissioner General of KRA did not require advice from the Respondent on how to recover taxes and from whom. KRA was established under section 3(1) of the KRA Act and had its own legal framework through which it determined whether or not tax was due, from which tax payer and how to collect it. The Respondent could also not advice the Director of Immigration to deport unknown and unidentified persons who were said to be working with the first Petitioner without valid work permits as had not conducted any investigations on the 1st Petitioner’s operations and staff.
  17. Article 21(1) of Kenya’s Constitution stated in plain language that it was a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.
  18. The Bill of Rights was said to be integral to the country’s democratic state and was the framework of all the policies touching on the populace. It was the foundation on which the nation state was built. There was a duty to recognize, enhance and protect the human rights and fundamental freedoms found in the Bill of Rights. The state organs, administrative bodies or public officers were not to act in flagrant disobedience and or violation of the Constitution and laws of the land. They had an obligation to obey the Constitutional command and the law. That was why article 23 of the Constitution granted Kenyan courts authority to step in whenever there was allegation of violation or threat to violation of rights and fundamental freedoms in the Bill of Rights and grant appropriate reliefs.
  19. Where there was a breach of fundamental rights and or abuse of power, the Court had the authority to grant compensation by exercising its jurisdiction under article 23 (3) (b) of the Constitution a demonstration that Courts frowned upon violation of the law and abuse of power reposed on public officers.
  20. The Petitioners had succeeded in establishing that there was breach of a fundamental right beyond reasonable doubt. They had also established that the Respondent had taken an action against the 1st Petitioner similar to one that had been nullified by the Court in Petition No. 495 of 2015. Despite that fact, the Respondent purported to take similar action, the judgment in Petition No. 495 of 2015 notwithstanding. Such conduct was inexcusable, amounted to abuse of power and was not to be allowed in a democratic state founded on national values and principles of governance in Kenya’s Constitution. It undermined the rule of law and constitutionalism.

Petition allowed
Orders

  1. A declaration was issued that the adverse actions taken by the Respondent in cancelling the first Petitioner’s registration, ordering the freezing of its bank accounts, ordering recovery of none-existent taxes from the first Petitioner and the purported directive for deportation of the first Petitioner’s foreign staff was unconstitutional and therefore null and void.
  2. An order of certiorari was issued quashing the respondent’s letter dated August 14, 2017 cancelling the first Petitioner’s registration.
  3. The Respondent ordered to pay General damages of Ksh 2,000,000 to the first Petitioner.
  4. Costs and interest to the first Petitioner.
COMPANY LAW A Resulting Trust Arises where Property is Transferred under Circumstances which the Transferor does not Intend to Confer a Beneficial Interest upon the Transferee

Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR
Civil Appeal No. 75 of 2016
Court of Appeal at Mombasa
Alnashir Visram, W. Karanja & M. K. Koome JJA
November 23, 2017.
Reported by Kakai Toili

Download the Decision

Company law – derivative suits – circumstances where one could institute a derivative suit – what were the circumstances where one could institute a derivative suit.
Property law – trusts – resulting trusts –where property was transferred under circumstances which suggested that the transferor did not intend to confer a beneficial interest upon the transferee - whether a resulting trust arose where property was transferred under circumstances which suggested that the transferor did not intend to confer a beneficial interest upon the transferee.
Property law – trusts – constructive trusts – circumstances where a court could presume a constructive trust - what were the circumstances where a court could presume a constructive trust.
Property law – trusts – constructive trusts vis a vis resulting trusts – what was the distinction between a constructive trust and a resulting trust.
Civil Practice and Procedure – pleadings – plaint – particulars of claims in a plaint – failure to list particulars of a claim in a plaint – effect of failure to list particulars of a claim in a plaint - what was the effect of not listing particulars of a claim in a plaint - Civil Procedure Rules, 2010, order 2 rule 10
Locus standi – definition of locus standi - The right to bring an action or to be heard in a given forum-Black’s Law Dictionary, 9th Edition at page 1026
Trust – definition of trust - the right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary) - Black’s Law Dictionary, 9th Edition

Brief facts:
The 1st Appellant was incorporated on June 28, 2006, The Respondent held 60% of the shareholding while the 2nd Appellant held 40%. Both the 2nd Appellant and the Respondent agreed that the 2nd Appellant would take charge of the business operations as well as management of the 1st Appellant. It was further agreed that the Respondent would provide the initial capital of running the company which he did by depositing the amount into the 2nd Appellant’s wife, bank account.
In the year 2007, the 2nd Appellant informed the Respondent that the 1st Appellant was in need of a four wheel drive vehicle in order to conduct its business properly. The Respondent credited 15,500 into the 1st Appellant’s account at Imperial Bank Limited for the said purchase. The said sum was advanced to the 1st Appellant and it was agreed that it would be offset by the 1st Appellant paying him 50% of its profits until the same was paid in full. It was pursuant to the said advance that motor vehicle registration number KAM 634J was purchased and registered in the 1st Appellant’s name. Nevertheless, no payments were ever made to the Respondent.
Still in 2007 the Respondent requested the 2nd Appellant to help him identify a suitable parcel of land in Diani to purchase. The Respondent made substantial deposits into the 1st Appellant’s account for that purpose and requested the 2nd Appellant to undertake the transaction on his behalf. However, when the purchase was completed the 2nd Appellant registered the parcel in favour of the 1st Appellant instead of the Respondent.
Thereafter, the Respondent learnt that the 2nd Appellant and his wife had opened a parallel competing company and that the vehicle which had been purchased for the 1st Appellant’s purposes had been converted to the said competing business. The Respondent requested the 2nd Appellant to release the logbook of the vehicle and the title deed of the parcel with a view of facilitating the transfer of the said properties to him. Despite the 2nd Appellant agreeing to do so he failed and refused to honour his word.
Perturbed by the 2nd Appellant’s actions the Respondent filed a suit in the High Court claiming among others that the 1st Appellant was holding the properties in trust for him. The Trial Court in a judgment dated August 21, 2015 allowed the Respondent’s suit. Aggrieved by the decision the Appellants filed the Appeal

Issues:

  1. What were the circumstances where one could institute a derivative suit?
  2. What were the circumstances where a court could presume a constructive trust?
  3. Whether a resulting trust arose where property was transferred under circumstances which suggested that the transferor did not intend to confer a beneficial interest upon the transferee
  4. What was the distinction between a constructive trust and a resulting trust?
  5. What was the effect of not listing particulars of a claim in a plaint? Read More..

Held:

  1. On a first appeal from the High Court, the Court of Appeal had to reconsider the evidence, evaluate it itself and draw its own conclusions though it had to always bear in mind that it had neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the Court was to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.
  2. Whether or not the Respondent had the requisite standing turned on the nature of the claim before the Trial Court. By dint of the rule in Foss vs. Harbottle there was no argument that the proper Plaintiff in any proceedings or action in respect of a wrong done to a company was the company itself. That was based on the principle that a company was a legal personality distinct from its directors and shareholders. However, there were exceptions to the rule which allowed a person to sue on behalf of the company.
  3. There were four exceptions to the rule in Foss vs. Harbottle
    1. Where the directors or a shareholding majority used their control of the company to paper over actions which would be ultra vires to the company or illegal.
    2. If some special voting procedure would be necessary under the company’s constitution or under the Companies Act, it would defeat both if they could be sidestepped by ordinary resolutions of a simple majority, and no redress for aggrieved minorities would be allowed.
    3. Where there was invasion of individual rights, such as voting rights.
    4. Where a fraud on the minority was being committed.
    In all those cases, a derivative action could be brought before the Court on behalf of the company where the wrongdoer was in control of the company or by the individual shareholder where his personal right was violated.
  4. A derivative suit was basically brought on behalf of a company for wrongs committed against it or in other words for the benefit of the company. The nature of the suit instituted by the Respondent was not a derivative suit.
  5. The Respondent did not institute the suit on behalf or for the benefit of the 1st Appellant for perceived wrong(s) against it. Rather, he filed the suit for his own benefit for wrongs committed against him by the Appellants, to wit, breach of trust. The Respondent did not require leave before instituting the suit.
  6. What led the Defendants to submit that the Plaintiff’s claim did not have particulars as required under order 2 rule 10 of the Civil Procedure Rules, 2010 was because the Plaintiff did not draw out the Plaint as traditionally done by practitioners, where certain paragraphs were clustered together under the heading ‘particulars’. That practice had indeed become the norm form of usage but it did not mean that if one did not draw his claim in that manner his claim failed.
  7. The onus lay on a party relying on the existence of a trust to prove it through evidence. The law never implies, the Court never presumes, a trust, but in case of absolute necessity. The Courts could not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust had to be clearly determined before a trust would be implied.
  8. The 1st Appellant held the vehicle in trust for the Respondent. There was a detailed account and paper trail of the funds the Respondent had transferred to the 1st Appellant’s account in respect of the motor vehicle and parcel of land. It was clear that the Respondent’s intention with respect to the funds transferred for the car was that the same was to be paid back by the 1st Appellant. The Respondent had purchased the parcel of land for his own benefit. The fact that it was later registered in favour of the 1st Appellant didn’t divest him of his interest thereon.
  9. In the absence of an express trust, there are trusts created by operation of the law. They fell within two categories; constructive and resulting trusts. Given that the two were closely interlinked, it was pertinent to look at each of them in relation to the matter at hand.
  10. A constructive trust was an equitable remedy imposed by the Court against one who had acquired property by wrong doing. It arose where the intention of the parties could not be ascertained. If the circumstances of the case were such as would demand that equity treats the legal owner as a trustee, the law would impose a trust. A constructive trust would thus automatically arise where a person who was already a trustee took advantage of his position for his own benefit.
  11. Proof of parties’ intention was immaterial in constructive trusts, for the trust would nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust was thus meant to guard against unjust enrichment.
  12. A resulting trust was a remedy imposed by equity where property was transferred under circumstances which suggested that the transferor did not intend to confer a beneficial interest upon the transferee. That trust could arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention.
  13. Unlike constructive trusts where unknown intentions could be left unexplored, with resulting trusts, courts would readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule is that a resulting trust will automatically arise in favour of the person who advanced the purchase money. Whether or not the property was registered in his name or that of another, was immaterial.
  14. All indications were that a resulting trust arose as between the Respondent and the 1st Appellant. A resulting trust automatically arose in favour of the person who advanced the purchase money. Whether or not the property was registered in his name or that of another, was immaterial. It was common ground that all the purchase money for both the vehicle and the parcel was advanced by the Respondent. The parcel and vehicle were therefore held in trust for the Respondent by the 1st Appellant.

Appeal dismissed with costs

LIMITATION ACTIONS Order 50 rule 4 of the Civil Procedure Rules on exclusion of Christmas recess from the computation of time, does not apply to limitation periods provided for under the Limitation of Actions Act.

Maersk Kenya Limited v Murabu Chaka Tsuma
Civil Appeal No 209 of 2015
Court of Appeal at Nairobi
Asike-Makhandia, W Ouko & A K Murgor, JJ A
November 10, 2017
Reported by Beryl A Ikamari
Download the Decision

Limitation of Actions-actions founded on contracts-computation of limitation periods for actions founded on contracts-whether the applicable six years limitation period, under the Limitation of Actions Act, could be extended by exclusion of the Christmas recess period provided for in order 50 rule 4 of the Civil Procedure Rules-Limitation of Actions Act (Cap 22), section 4(1)(a); Civil Procedure Rules 2010, order 50 rule 4.
Statutes-interpretation of statutory provisions-the running of time for purposes of limitation of actions-actions founded on contracts-whether order 50 rule 4, of the Civil Procedure Rules, could exclude the Christmas recess period from the computation of the six years limitation period applicable to contracts, under the Limitation of Actions Act-Limitation of Actions Act (Cap 22), section 4(1)(a); Civil Procedure Rules 2010, order 50 rule 4.
Statutes-interpretation of statutory provisions-circumstances under which a party would be precluded from pleading limitation of actions-interpretation of section 39 of the Limitation of Actions Act-existence of a contract not to plead limitation and existence of an estoppel preventing a party from pleading limitation-Limitation of Actions Act (Cap 22,) section 39.

Brief facts:
The Appellant employed the Respondent as a Security and Safety Coordinator. The contract stated that the Respondent could be summarily dismissed without the issuance of notice if his conduct justified such dismissal. On September 20, 2006, the Respondent was charged with the offence of stealing contrary to section 275 of the Penal Code in Criminal Case No 1723 of 2006. After being suspended from work on September 11, 2005, he was summarily dismissed from employment on November 20, 2006. Subsequently he was cleared of the criminal charges. He instituted the claim on March 21, 2013 seeking reliefs against wrongful dismissal from work by the Appellant.
Before the hearing of the suit began, a preliminary objection was raised by the Appellant. The preliminary objection was based on an assertion that the suit was time barred as it was instituted outside the 3 years’ time limit provided for under section 90 of the Employment Act. In his grounds of opposition, the Respondent argued that the Employment Act 2007 was inapplicable to his employment contract as it was dated September 20, 2005. In response, the Appellant filed another preliminary objection stating that the Respondent's claim was outside the six year limitation period set out in section 4 (1) (a) of the Limitation of Actions Act and it ought to be struck out.
In making its ruling the Employment and Labour Relations Court relied on order 50 rule 4 of the Civil Procedure Rules and excluded the period between the 21st day of December in any year and the 13th day of January in the following year (both days included) in each year commencing November 20, 2006 to November 19, 2012 totalling 210 days. The Employment and Labour Relations Court excluded that period and concluded that the Respondent would have been time barred if he had filed his claim after June 2013. The preliminary objection was dismissed. The Appellant lodged an appeal against the ruling.

Issues:

  1. Whether order 50 rule 4 of the Civil Procedure Rules, which provided for the exclusion of the Christmas recess from the computation of time, was applicable to the provisions of section 4(1)(a) of the Limitation of Actions Act which provided for a six year limitation period for actions founded on contract.
  2. When would section 39 of the Limitation of Actions Act, with respect to an estoppel not to plead limitation, be applicable to a suit? Read More...

Held:

  1. The cause of action arose on November 20, 2006, when the Respondent was dismissed from work. That was before the enactment of the Employment Act, 2007. The applicable law in computing the applicable limitation period was section 4(1)(a) of the Limitation of Actions Act which provided that actions founded on contract could not be brought after the expiry of six years from the date which the cause of action arose.
  2. Six years computed from a cause of action arising on November 20, 2006 would mean that the suit ought to have been filed latest before November 19, 2012. Instead, the suit was filed on March 21, 2013. However, the Employment and Labour Relations Court applied order 50 rule 4 of the Civil Procedure Rules and excluded the Christmas recess period for each year commencing in the year 2006 until the year 2012 and the effect was that the limitation period was extended by 210 days.
  3. Order 50 rule 4 of the Civil Procedure Rules was applicable to computation of time under the Civil Procedure Rules or in accordance with an order of the Court. The rule did not indicate that it was intended to be applied to fix time limits set by the Limitation of Actions Act which was different from the Civil Procedure Act and the Civil Procedure Rules.
  4. Part III of the Limitation of Actions Act which was titled, “extension of the period of limitation,” set out the manner and the circumstances under which periods of limitation could be extended. That part did not make reference to the Civil Procedure Rules or order 50 rule 4. Without such an enabling power, an order or rule was incapable of augmenting the absolute period of limitation stipulated under an Act of Parliament.
  5. The conclusion reached at by the Employment and Labour Relations Court that the period between November 20, 2006 and November 19, 2012, could be extended by 210 days and therefore an extension of about 7 months could be made to the limitation period provided for in section 4(1)(a) of the Limitation of Actions Act, did not have any support in law.
  6. Section 39 of the Limitation of Actions Act provided that a period of limitation would not run if there was a contract not to plead limitation or where the person attempting to plead limitation was estopped from doing so. The documents tendered did not disclose the existence of a contract wherein the Appellant could not plead limitation and the Respondent did demonstrate that the Appellant was estopped from pleading limitation.

Appeal allowed. (Ruling dismissing the preliminary objection dated July 9, 2014, set aside. Industrial Cause No 374 of 2013 struck out with costs to the Appellant.)

LAND LAW Failure to Obtain the Consent of the Land Control Board Within The Stipulated Time Merely Rendered a Controlled Dealing Voidable as Opposed to Being Void.

Isaac Ngatia Kihagi v Paul Kaiga Githui [2017] eKLR
ELCA 56 of 2014
Environment and Land Court at Nyeri
L. N. Waithaka, J
December 19, 2017
Reported by Ribia John
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Land Law – controlled dealings - Land Control Board (LCB) – consent from the LCB – effect of not obtaining a consent from the LCB within the stipulated statutory time lines - whether the import of failure to obtain the consent of the Land Control Board within the stipulated time as required under section 6(1) of the Land Control Act was to render the controlled dealing void – Land Control Act section 6(1).
Jurisdiction – jurisdiction of the Magistrate’s Court – jurisdiction of the Magistrate Court over matters touching on land – jurisdiction to interpret sale agreements - where the claimant had entered into a void sale agreement - whether the Magistrates Courts had the jurisdiction to evict a Plaintiff; who inter alia approached the Court for the completion of a sale agreement so as to validate his occupation of the land; where it found that the sale agreement was void.

Brief Facts:
The Appellant had entered into a sale agreement in which the Respondent was to sell to him a portion of the Respondent’s parcel of land. The agreement provided that the buyer would take possession of the portion sold immediately after paying the deposit, which the buyer subsequently paid.
It was the Appellant’s case that despite having met his obligations under the sale agreement and being ready and willing to fulfil other obligations under the agreement, the Respondent failed, refused and neglected to divide the suit property. For those reasons the Appellant filed the instant suit at the Subordinate Court seeking orders of specific performance to enforce the agreement or to order reimbursement of the monies paid due to the agreement.
The Subordinate Court heard the matter and held that the transaction was void; as a result the Plaintiff was evicted from the suit land. However the Subordinate Court held that the Plaintiff was entitled to a refund of the deposit. Aggrieved by the decision the Appellant filed the instant appeal in which he claimed that the Court had no jurisdiction to entertain a claim of eviction and that the Subordinate Court erred by shifting the burden of proof.

Issues:

  1. Whether the import of failure to obtain the consent of the Land Control Board within the stipulated time as required under section 6(1) of the Land Control Act was to render the controlled dealing void.
  2. Whether the Magistrates Courts had the jurisdiction to evict a Plaintiff; who inter alia approached the Court for the completion of a sale agreement so as to validate his occupation of the land; where it found that the sale agreement was void. Read More...

Relevant Provisions of the Law
Land Control Act
Section 6(1)
6. Transactions affecting agricultural land
(1) Each of the following transactions that is to say—

(a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area;
(b) the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 (L.N. 516/1961) for the time being apply;
(c) the issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which for the time being owns agricultural land situated within a land control area, is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.

Section 8(1)
8. Application for consent
(1) An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto:

Provided that the High Court may, notwithstanding that the period of six months may have expired, extend that period where it considers that there is sufficient reason so to do, upon such conditions, if any, as it may think fit.

Section 9(2)(a)
9. Granting or refusal of consent
(2) Where an application for the consent of a land control board has been refused, then the agreement for a controlled transaction shall become void—

(a) on the expiry of the time limited for appeal under section 11; or

Held:

  1. The duty of the first Appellate Court is to evaluate afresh the evidence adduced before the Subordinate Court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
  2. The order for eviction was incidental to the issue raised in the suit. That being the case, the Subordinate Court had the power to order for eviction of the Appellant once it found his occupation of the suit property was unlawful. The cases cited in support of the Appellant’s contention that the Court had no jurisdiction to grant an order for eviction were distinguishable from the circumstances obtaining in the instant case in that the claim herein was not merely for eviction of the Appellant but for determination of the rights of the parties to the suit property. Once the Court found that the Appellant’s right to the suit property was limited to refund of the consideration that passed between the parties, in line with the Court’s overriding objective under section 1A of the Civil Procedure Rules, the Court was justified in entering judgment for the Respondent as dictated by the circumstances of the case.
  3. It beat logic for the Appellant who had moved the Court either for an order of specific performance or refund of the consideration he had paid in respect of the sale agreement to argue that he would still be entitled to occupy the suit property even after having received a refund of his consideration. If the Court were to do such a thing, it would be tantamount to telling the Appellant that he could eat his cake and still have it; an impossibility.
  4. Whilst the Court had reservations as to whether failure to obtain the Consent of the Land Control Board (LCB) within the time stipulated in law for doing so, owing to existence of many Court of Appeal decisions to the effect that failure to obtain consent within the time stipulated in section 6(1) of the Land Control Act and that either party in a controlled transaction could apply for the consent of the LCB, the Trial Court did not misconstrue the provisions of the Land Control Act and the rules made thereunder but it instead made a proper interpretation of the law.
  5. Although both the High Court and the Court of Appeal had in many decisions held that the import of failure to obtain the consent required under section 6(1) of the Land Control Act was to render the controlled dealing void, the instant Court was of the view, which view owing to the binding nature of decisions of the Court of Appeal had to bow to the decisions of the Court of Appeal, was that the failure of obtain the consent of the LCB within the stipulated time merely rendered a controlled dealing voidable as opposed to being void. A reading of the provisions of the said section 6(1) with the provisions of sections 8 and 9 of the Act made it improbable that it was the failure to obtain the consent of the LCB within 6 months of entering into the controlled dealing which made the dealing void.
  6. Section 6(1) did not provide that the otherwise voided controlled dealing would become void by dint of the provisions of that section but by dint of the provisions of the Act.
  7. Whereas section 8(1) of the Land Control Act required that the application for the consent be made in the prescribed form to the relevant land control board within 6 months of the making of the agreement for the controlled transaction by a party thereto, the proviso under that subsection of the law provided an avenue for breathing life into an otherwise dead transaction; that was not possible.
  8. Since section 8(1) of the Land Control Act recognised that it was possible to breathe life to the otherwise voided transaction, the only reasonable construction that could flow from section 8 of the law giving the High Court power to revive the otherwise voided transaction was that the transaction did not become void but voidable at the lapse of the time provided in section 6(1) of the Land Control Act.
  9. Section 9 appeared to amplify the above interpretation of the law by inter alia providing that where an application for consent of a LCB had been refused, then the agreement for a controlled transaction shall become void on the expiry of the time limited for appeal.
  10. The foregoing notwithstanding, the Court having determined that the position held by the Court of Appeal on the matter was binding on the instant matter, the Court’s interpretation of those provisions of the law was just but food for thought in prospective considerations of the import and purport of section 6 of the Land Control Act as read with section 8 and 9 of the Act by the Courts, especially the Court of Appeal.
  11. An appellate court would not differ with the Subordinate Court on a question of fact unless such finding was based on no evidence or on a misapprehension of the evidence or the Court was shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court was not bound to accept the Subordinate Court’s finding of fact if it appeared either that the Court had clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness was inconsistent with the evidence in the case generally.
  12. The finding of the Subordinate Court was not based on any evidence or misapprehension of the evidence presented before it to warrant interference by the instant Court. A review of the pleadings filed in the instant Court showed that the Respondent had on the onset denied having received the said amount of money and put the Appellant to strict proof of the allegation that he had paid the said amount and that the payment was acknowledged by the Defendant before his advocate. The evidence adduced before the Subordinate Court showed that despite having been given an opportunity to prove that the Defendant indeed received the said amount, the Plaintiff failed to do so by failing to call the advocate who allegedly endorsed the document through which the Respondent allegedly acknowledged having received the said amount, he was unable to name any person who witnessed payment of the money or any instalment in respect thereof. He also gave contradictory evidence concerning payment of that amount of money.
  13. It was expected that the Appellant would at least produce some document(s) concerning its alleged payment of the Kshs. 200,000/- to the Respondent and even name or avail some people who witnessed the payment of the money. The Subordinate Court was justified in holding that failure by the Plaintiff to call the advocate in whose presence the acknowledgement note relied on by the Appellant was signed by the Respondent left the Court with the evidence of the Appellant and the Respondent. The Subordinate Court was also justified in holding that the burden of proving that the Respondent received the Kshs. 200,000/= lay with the Appellant, which burden he failed to satisfy to the satisfaction of the Court.
  14. The burden to proof that the document was forged would only have shifted to the Respondent if and only if the Appellant had discharged the burden of proving that the Respondent indeed placed his signature on the document. Since neither the Appellant nor the Respondent adduced evidence capable of proving the issue raised concerning that acknowledgement note, the matter was left unproven.
  15. The Appellant’s case did not turn on the existence or non-existence of the encumbrance but on the question as to whether parties to the suit fulfilled their respective obligation under the agreement they had entered into.

Appeal dismissed, costs to the Respondent.

CRIMINAL LAW A Complainant’s Representations at the Time of Commission of the Offence to the Effect that She was an Adult, is a Defence to the Offence of Defilement.

Joseph Kaya Omollo v Republic
Criminal Appeal No 37 of 2016
High Court at Kitale
H K Chemitei, J
April 12, 2018
Reported by Beryl A Ikamari

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Criminal Law-defilement-defences to the offence of defilement-apparent age of the Complainant-where a Complainant had presented herself as an adult who was capable of marriage-whether such representations from the Complainant could constitute a defence to the offence of defilement-Sexual Offences Act, No. 3 of 2006, section 8(5).
Criminal Law-defilement-proof of the commission of the offence of defilement-ingredients of the offence of defilement-age of the Complainant, identity of the perpetrator and penetration-effect of representations from the Complainant, at the time of the commission of the offence, that she was an adult capable of marriage-Sexual Offences Act, No. 3 of 2006, sections 8(1), 8(3) & 8(5).

Brief Facts:
The Accused was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. He was accused of intentionally causing his penis to penetrate the vagina of a child aged 15 years.
On July 27, 2014, the Complainant went to the barber shop where she got shaved and was seduced by the Accused after the shaving. She went back to the barber shop on August 7, 2014 and talked to the Accused and went with him to his house where they had protected sex. On August 16, 2014 she had sex again with the Appellant at 11 a.m. When she went home at 7 p.m., she was sent away by her sister who demanded to know where she was. The Complainant went back to the Appellant's house where she cooked, stayed overnight and had sex with the Appellant. In the morning, the Complainant's sister, father and the Appellant came to the house. They were arrested by vigilantes and taken to police custody for a day and later underwent medical examination.

Issues:

  1. What were the ingredients to the offence of defilement?
  2. Whether the fact that a Complainant presented herself as an adult capable of marriage was a defence to the offence of defilement. Read More..

Held:

  1. The ingredients of the offence of defilement were well-established. They included proof of the age of the victim, the identity of the perpetrator and penetration.
  2. The Complainant's birth certificate was produced. It was shown that at the time of the commission of the offence, she was 15 years old.
  3. The evidence of PW1, PW2 and PW3 placed the Appellant at the scene of crime. Evidence which showed a clear chronology of events, including the fact that the Complainant was found at the Appellant's house, was tendered. There was no doubt that the Appellant engaged in sexual intercourse with the Complainant on several occasions.
  4. The Complainant's conduct showed that she knew that what she was doing was wrong. Despite warnings from her sister she persisted in going to the Appellant's house. She stayed and cooked at the house twice.
  5. It was a defence to the offence of defilement, under section of the 8(5) of the Sexual Offences Act, to show that the Complainant deceived the Accused person by stating that he/she was an adult or that the Accused reasonably believed that the Complainant was an adult. For purposes of the defence, it was necessary, while having regard to all the circumstances of the case, to establish any steps that the Accused took to establish the age of the Complainant.
  6. There was no reason to believe that the Appellant did not believe that the Complainant was underage. There was nothing to show that the Appellant took steps to ascertain whether the Complainant was below 18 years of age.
  7. With the existing dietary system some juveniles were known to grow physically and appear to be adults while in fact they were minors. Therefore, the judicial system and officer ought to be wary but at the same time protect innocent Accused persons. Each case ought to be treated independently.
  8. Part of the Complainant's conduct was that she presented herself as an adult who was capable of marriage. The Appellant would therefore be granted the benefit of doubt and be released unless lawfully held.

Appeal allowed.

JURISDICTION The Appeals that Lie as of Right from the Court of Appeal to the Supreme Court are those Concerning Questions of Interpretation and Application of the Constitution.

CMAW-M v PAW-M
Petition No 7 of 2015
Supreme Court at Nairobi
D K Maraga, CJ, J B Ojwang, S C Wanjala N S Ndungu & I Lenaola, SCJJ
May 11, 2018
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-right of appeal-appeals relating to questions on the application and interpretation of the Constitution-where it was alleged, in an appeal, that an award of alimony by the High Court discriminated against the Petitioner as it failed to consider the Respondent's financial means and was based on an assumption that the Petitioner had to pay alimony-whether such allegations raised questions of constitutional interpretation or application-Constitution of Kenya 2010, article 163(4)(a).

Brief Facts:
The Petitioner and the Respondent married on May 31, 1997 in London, England. They resided in England until the year 2007 when they relocated to Kilifi, Kenya. In March 2009, the Petitioner left Kenya to attend a wedding in England but never returned. Via a petition dated February 26, 2009, the Respondent sought the dissolution of the marriage and she also sought alimony of at least Kshs. 250, 000/= per month, a variation of marriage settlement and costs. On the other hand, the Petitioner made an application seeking 1,000 Great British pounds as monthly maintenance. The High Court awarded the Respondent interim alimony in the sum of Ksh. 127,000 per month. Against the ruling on alimony an appeal was lodged at the Court of Appeal. The Court of Appeal dismissed the appeal.
The petition filed at the Supreme Court was based on grounds similar to those raised at the Court of Appeal. The Petitioner's assertion was that the High Court and Court of Appeal violated articles 25 and 27 of the Constitution by assuming that the Petitioner had to pay alimony while not considering the Respondent's affidavit of means. The Petitioner's contention was also that the Court of Appeal wrongfully found that the Petitioner abandoned grounds 1 to 4 of the memorandum of appeal and yet he had not.

The Petition was opposed by the Respondent who contended that the Petitioner did not have a right of appeal to the Supreme Court under article 163(4)(a) of the Constitution and that the petition did not raise matters of general public importance. The Respondent said that it was necessary for the Petitioner to obtain certification that the petition raised matters of general public importance over which the Supreme Court could assume jurisdiction under article 163(4)(b). The Respondent denied that the Petitioner's right to be heard was violated and stated that the right to privacy was not absolute as the right to information was recognized by the Constitution. The Respondent also stated that the Petitioner was not discriminated against in the making of the award of alimony as the Court took into account the financial capacity of the spouses.

Issue:

  1. Whether the Supreme Court had jurisdiction to entertain and determine the appeal. Read More...

Held:

  1. Article 163 (4) (a) of the Constitution provided that appeals founded on interpretation or application of the Constitution would lie as of right from the Court of Appeal to the Supreme Court. Mere allegations that clothe an appeal with attributes of constitutional interpretation and application would not suffice. The appeal had to originate from a Court of Appeal case where the issues revolved around the application and interpretation of the Constitution.
  2. The appeal had nothing to do with the interpretation or application of the Constitution as contemplated by article 163 (4) (a) of the Constitution. The appeal was about a family dispute revolving around the question of alimony. The issue did not transmute into a constitutional question.

Appeal struck out with costs.

STATUTES Interpretation of the phrase “be required” under section 81 of the Election Act

Mohamed Mahamud Ali v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR
Election Petition No. 7 Of 2017
Ruling No. 3
High Court at Mombasa
November 1, 2017.
N. Mwangi, J
Reported By Felix Okiri

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Statutes interpretation of statutes - section 81 Elections Act- what was the implication of the phrase ‘be required’- Elections Act, 2011, section 81
Words and phrases – require – to have need of; depend upon; want; to impose as a necessity; make necessary; to make formal request for; insist upon; to call upon or oblige a person authoritatively; order or command - Collins Concise Dictionary 21st century edition

Brief Facts:
The application concerned an objection by the Respondents on the basis of paragraphs 7(a) and (b) of the affidavit of PW 22 and PW24. The Respondents contended that the witness who was a voter had disclosed the candidate she wanted to vote for in the electoral position of the President of Kenya and the Member of Parliament for Changamwe Constituency contrary to section 81 of the Elections Act, 2011.

Issues:

  1. Whether the phrase ‘be required’ under section 81 of the Elections Act, 2011 proscribed a litigant from disclosing the candidate he/she voted for in an election
  2. What was the standard of proof in an election petitionRead More...

Relevant provision of the law
The Elections Act
Section 81
A voter who has voted at an election shall not, in the proceedings of an election petition, be required to state whom they voted for.”

Held:

  1. An interpretation of section 81 of the Elections Act as a whole, while applying the above definition of the word “require” meant that a voter who testified in proceedings of an election petition was not to be called upon authoritatively, commanded, ordered or be imposed upon by anyone on the need to disclose the candidate he/she voted for in an election.
  2. Had Parliament intended to shut out a voter completely from disclosing whom he/she voted for or whom he had an intention to vote for, the wording of the provisions of section 81 of the Elections Act would have been drafted in strict terms by stating that a voter who had voted at an election petition ‘shall not’ in the proceedings of an election petition state whom they voted for. The use of the word “be required brought a different trajectory to the interpretation of the said provisions other than that suggested by the Petitioners. The correct interpretation was that a voter was not be compelled to disclose whom he/she voted for, during election petition proceedings.
  3. Election petitions were not ordinary suits where a party was enforcing a right that accrued to him as a person. The court had to take cognizance of the fact that an election was a signification of the exercise of the democratic rights of the people to have a person of their choice represent them in the National Assembly.
  4. In an adversarial system of settling disputes like that in Kenya, each party brought to court witnesses that were to build and advance their cases, while the other party called witnesses to counteract the evidence that had been adduced for the party who had brought the dispute in court. An election petition was no different; the Petitioner had a duty to discharge the burden of proof which was above the threshold of a balance of probabilities.
  5. Interpretation of the provisions of Section 81 of the Elections Act in the manner propounded by the Respondents could have denied the adversaries herein a level playing field. The Respondents had lined up quite a number of witnesses to call to controvert the allegations of electoral malpractices leveled against them. They were slated to have their day in court.

Orders

  1. Respondent’s objection dismissed
  2. PW22 and PW24 were set at liberty to testify as per the depositions in their affidavits.

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