Weekly Newsletter 041/2018

Weekly Newsletter 041/2018



Kenya Law

Weekly Newsletter


The likelihood of interference with witnesses and political influence cited as grounds for denial of bail for the Migori County Governor
Republic v Zacharia Okoth Obado [2018] eKLR
Criminal Case No. 46 of 2018
High Court at Nairobi
Lesiit, J
September 27, 2018.
Reported by Kakai Toili
Download the Decision
 
Criminal Procedure-bail and bond-application for bail-factors to consider in granting an application for bail-compelling reasons-political influence and status of an accused person in society-where there was a likelihood of witness interference-whether political influence and status of an accused person were compelling reasons to deny granting of bail on the basis of witness interference
Constitutional Law–fundamental rights and freedom–rights of arrested persons–right to fair trial–right to be presumed innocent until proven guilty-whether the opposition to granting of bail was a violation of the right to be presumed innocent until proven guilty-Constitution of Kenya, 2010, article 50
Evidence Law-witness statements-requirement to provide witness statements as part of evidence in bail applications-failure to provide witness statements and evidence-effect of-whether failure by the prosecution to provide witness statements and other relevant evidence meant that the prosecution had no case
Brief Facts:
The Applicant was charged with the offence of murder. He filed the instant Application seeking an order of bail/bond pending the hearing of the case based on the grounds that; the offence was bailable, the Applicant had a qualified constitutional right to be released on bond/bail on reasonable conditions and that the Applicant would avail himself to court as of when required to do so until the matter was concluded among others.
Issues:
  1. Whether political influence and status of an accused person were compelling reasons to deny granting of bail on the basis of witness interference.
  2. Whether the opposition to granting of bail was a violation of the right to be presumed innocent until proven guilty.
  3. Whether failure by the prosecution to provide witness statements and other relevant evidence meant that the prosecution had no case.
Held
  1. The Criminal Procedure Bench Book outlined compelling reasons as stated in various cases, policy guidelines and others. Those were the likelihood that the Accused could;
    1. fail to attend court;
    2. commit or abet the commission of a serious offence;
    3. endanger the safety of victims;
    4. interfere with witnesses or evidence;
    5. endanger national security or public safety;
    6. protection of the Accused person.

    That list was however not exhaustive.

  2. Under article 50 of the Constitution an accused person should be presumed innocent until proved guilty. The Accused person should be released on bail or bond whenever possible; those were the words from the Bail and Bond Policy Guidelines [BBPG]. Opposition to granting of bail was not a violation of that right. The Constitution used the words, unless there were compelling reasons, that put a duty on the Prosecution to place before the Court any relevant evidence they could have on compelling reasons for consideration by the Court.
  3. The Prosecution had the onus and burden to prove presence of compelling reasons to deny bail. It was also the reason the victims were given an opportunity to be heard before bail was considered and a mention made of the requirement for victim impact statement in the Criminal Procedure Code. In the instant Application, the victims were represented by Counsel and made submissions at the bail hearing. To argue that any opposition to a release of an accused person on bail was a violation of that right was erroneous.
  4. Dignity had to do with treatment of an accused, not his status. The binding constitutional principle of right to equal treatment before the law abode there. There could not be equal treatment before the law based on the status or lack of it of an accused person. The International Convention on Civic and Political Rights [ICCPR] provided that accused persons had to, save in exceptional circumstances, be segregated from convicted persons and had to be subject to separate treatment appropriate to their status as unconvicted persons.The segregation referred to did not mean that it could only be realized by the release of the Accused from remand. It meant the physical segregation within the place of detention. No complaint had been raised in that regard. If raised it could be dealt with at any stage of the proceedings.
  5. The Prosecution was yet to provide witness statements, documentary and other relevant evidence they intended to rely on at the trial. Failure to provide them could not be interpreted to mean that the Prosecution had no case at all, unless good grounds existed which could lead to such a conclusion.
  6. The seriousness of a charge and severity of the sentence to be meted out was a major consideration on issues of bail. It was however considered alongside other factors and could not, standing on their own be a ground to deny bail.
  7. It was not enough to say that the Accused influence was of a political nature and had nothing to do with the instant case. When a person was elected as a leader or a representative, he/she commanded a lot of power both within the confines of that particular area they represented and also outside of it. There were measures the Court could apply to ensure such power did not affect the instant case, for instance, by imposing strict terms.
  8. It was difficult to address the question of the likelihood of interference with the case, investigations and witnesses at that stage. The nature of the case had been changing and more and more additional persons were being brought and charged with the same offence. Interference with the case was not constructively by meddling with the witnesses in a case, it could be indirect by releasing some facing the same charge while others were being arrested.
  9. The issue of confession was a matter for trial as it was not before the Court. The issue of safety of a co-accused was not a matter the Court could decide at that stage as there were no co-accused in the information before Court. The issue of public safety and security was another the parties in the instant case could not comment on for lack of material to form a basis for an argument either way. There was a threat to security in the area the offence took place and that was what informed the arraignment of the case in Nairobi. Security was an issue, however, it was difficult to draw a conclusive finding at that stage.
  10. The Application could not be determined before witness statements and other relevant evidence were availed to all the parties. That was the only way that the Court could fully exercise its discretion, applying factors for consideration in determining whether or not a compelling reason existed to deny bail.
Application dismissed 
Kenya Law
Case Updates Issue 041/2018
Case Summaries

LAND LAW The Water Resources Management Authority has power to regulate the use of seawater on behalf of the State.

Water Resources Management Authority v Krystalline Salt Limited [2018] eKLR
E.L.C. Case No. 47 of 2015
High Court at Nairobi
J.K. Bor J.
April 5, 2018
Reported by Felix Okiri

Download the Decision

Land Law - sea water – ownership of sea water - extent of proprietary interest in sea waters at common law- whether seawater was res nullius and incapable of ownership at common law- whether the National Land Commission was mandated to levy charges for the use of seawater- National Land Commission Act
Land Law-National Land Commission-mandate of the National Land Commission- whether the National Land Commission was mandated to levy charges for the use of seawater- National Land Commission Act
Constitutional law- public land- the territorial sea and the sea bed-all land between the high and low water marks-claim that tideland constituted public land- whether tideland constituted public land-Constitution of Kenya,2010, Article 62(1)( j) ,(l)
Words and phrases – meaning of the term ‘seawater’- water from the sea or ocean that is salty- Oxford Advanced Learner’s Dictionary
Words and phrases – definitions- definition of the term ‘creek’- a narrow area of water where the sea flows into the land or a small river or stream - Oxford Advanced Learner’s Dictionary

Brief facts:
The Water Act and the Water Management Resources Rules of 2007 vested the Plaintiff (Water Resources Management Authority) with the power to issue water permits and charge water users for water use. Through Legal Notice No. 171 of September 28, 2007, water use charges were gazetted requiring water users to pay to the Plaintiff 50 cents/m3 for the raw water they abstracted for their use with effect from October 1, 2007. The Plaintiff argued that following the gazettement, the Defendant was under an obligation to pay it for the raw water it used for the commercial production of salt at the rate of 50 cents/m3 from October 1, 2007. The Plaintiff claimed that the Defendant had wilfully and deliberately refused to submit the self-assessment forms indicating the water it used for its commercial salt production forcing the Plaintiff to estimate the amount of water used by the Defendant in order to calculate the amount of water use charges due from the Defendant.
On its part, the Defendant contended that the Plaintiff had no power under the Water Act and the Water Resources Management Rules, 2007 to develop principles guidelines or procedures for the use of seawater, nor to receive nor determine applications for use of seawater.

Issues:

  1. Whether the Plaintiff had power under the Water Act 2002 and the Water Resources Management Rules of 2007 to develop principles and guidelines, and to monitor and regulate the use of seawater.
  2. Whether tideland constituted public land.
  3. Whether seawater was incapable of ownership (res nullius) at common law.
  4. Whether the National Land Commission was mandated to levy charges for the use of seawater.
  5. Whether the Water Resources Management Authority was legally mandated to charge Krystalline Salt Limited (the Defendant) for the use of seawater. Read More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 62(3)
Public land classified under clause (1)(f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission

United Nations Convention on the Law of the Sea
2)(1) "States Parties" means States which have consented to be bound by this Convention and for which this Convention is in force.
(2) This Convention applies mutatis mutandis to the entities referred to in article 305, paragraph l(b), (c), (d), (e) and (f), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent "States Parties" refers to those entities.

Held :

  1. The Water Act defined “use” in relation to water in or forming part of water resource to mean abstraction, obstruction or diversion of the water; or discharge of materials or substances into the water. Water resource was defined to mean, lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin or any other water flowing or standing whether above or below the ground.
  2. The Water Act allowed water users to fill self-assessment forms which the Defendant declined to fill. Without filling the self-assessment forms and in the absence of evidence of the amount of seawater the Defendant used in its manufacture of salt. The Plaintiff was entitled to calculate the water charges the Defendant ought to pay based on the amount of salt the Defendant indicated on its website that it was producing. No evidence was led by the Defendant to show that the information on its website was erroneously put there by its IT officers. It could have done that by adducing evidence on the actual amounts of salt it extracted from its salt works in Magarini from 2007 to 2017.
  3. All land between the high and low water marks constituted public land under article 62(1) (l) of the Constitution. The Defendant did not therefore own the tideland as it argued.
  4. The United Nations Convention on the Law of the Sea (UNCLOS), defined the rights and responsibilities of nations with respect to their use of the world's oceans and established guidelines for businesses, the environment, and the management of marine natural resources. Section 2 of the Convention on the limits of the territorial sea provided that waters on the landward side of the baseline of the territorial sea formed part of the internal waters of the State. The Coastal State was free to set laws, regulate use, and use any resource within its internal waters.
  5. Article 2 of the Convention stated that the sovereignty of a Coastal State extended beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. The sovereignty extended to the air space over the territorial sea as well as to its bed and subsoil. The sovereignty over the territorial sea was exercised subject to the Convention and to other rules of international law. Under article 3, every State had the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the Convention.
  6. Article 62(1) (i) and (j) of the Constitution defined public land to include all rivers, lakes and other water bodies as defined by an Act of Parliament (such as the Water Act) as well as the territorial sea, the exclusive economic zone and the sea bed. Article 260 of the Constitution defined land to include any body of water on or under the surface as well as the marine waters in the territorial sea and exclusive economic zone; while natural resources was defined as the physical non-human factors and components including surface and ground water. From that Constitutional definition, seawater constituted public land.
  7. Article 62(3) of the Constitution stipulated that all rivers, lakes and other water bodies as defined by an Act of Parliament; the territorial sea, the exclusive economic zone and the seabed; and all land between the high and low water marks vested in the national government to hold in trust for the people of Kenya and were administered by the National Land Commission. Seawater being public land, the State had control over it. Based on the United Nations Convention on the Law of the Sea and articles 62 and 260 of the Constitution, seawater was not res nullius. It vested in the National Government and would not be excluded from the meaning of ‘natural resources’ which were to be utilised for the benefit of the people of Kenya.
  8. There was nothing to show that under the Constitution, the mandate and powers which were being exercised by the Plaintiff were transferred to the National Land Commission. The National Land Commission Act did not mandate the Commission to levy charges for the use of seawater.
  9. Article 67 of the Constitution created the National Land Commission and clothed it with the power to manage public land and regulate the use of land on behalf of the State. That would include regulating the use of seawater as an integral component of land. The Constitution recognised that the National Land Commission had to work with other authorities and that was why article 67(f) tasked the Commission to conduct research related to land and the use of natural resources and made recommendations to appropriate authorities. Such authorities would include the Plaintiff.
  10. Article 69 (1)(h) of the Constitution enjoined the State to utilise the environment and natural resources for the benefit of the people of Kenya. That was the basis for charges imposed by the State on water use and other natural resources for the benefit of the people of Kenya. The Constitution did not envisage a situation in which the National Land Commission would levy charges or taxes. Articles 209 and 210 of the Constitution made the imposition of taxes and other charges the preserve of the national government and the county government in specified instances. No tax could be imposed, waived or varied except as provided by legislation.
  11. Article 66 of the Constitution provided that the State could regulate the use of any land or any interest in or right over any land. It was the State which regulated use of land including seawater, and not the National Land Commission. To ‘regulate’ was to control something by means of rules. The Water Act and the Water Management Resources Rules of 2007 empowered the Plaintiff to issue water permits and charge water users for water use in line with the State’s mandate pursuant to article 66 of the Constitution. The Plaintiff which was a creature of Statute, had power under the Water Act 2002 and the Water Resources Management Rules of 2007 to regulate the use of seawater on behalf of the State.
  12. Prior to the promulgation of the Constitution in 2010, the State through the Plaintiff, was well within its statutory mandate to charge the Defendant for the seawater it abstracted for salt extraction because under article 193 of the UN Convention on the Law of the Sea, States had the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.
  13. The Plaintiff was legally mandated to charge the Defendant for the use of seawater it abstracted for the salt extraction with effect from Octobet 1, 2007 when water use charges were gazetted requiring water users to pay to the Plaintiff 50 cents/m3 for the raw water they abstracted for their use until April 19, 2017 when the Water Act of 2016 was amended to expressly remove the obligation to obtain a permit or pay water use charges with regard to abstraction and or use of seawater to extract salt.
  14. The Defendant was also enjoined to pay compound interest on the sum due at the rate of 2%. The Defendant was also obligated to pay a fixed permit fee of Kshs. 135,000/= per year to the Plaintiff during that period.

Judgement entered for the Plaintiff with costs

CIVIL PRACTICE AND PROCEDURE Even though preliminary objections were to be preferably raised early during the proceedings, they could be raised at any time while the suit was still active.

Jackson Koome v M’limongi M’ikuamba & 2 others [2018] eKLR
ELC Appeal No. 1 of 2018
Environment and Land Court at Meru
M. Njoroge, J
June 29, 2018
Reported by Felix Okiri

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Civil practice and procedure -preliminary objection- time of raising a preliminary objection- where a preliminary objection was raised after 12 years of filing a suit - whether a preliminary objection on points of law could be raised by the objector at any point of the proceeding
Civil practice and procedure - institution of suits – prerequisites of institution of civil proceedings concerning an interest in land in an adjudication section – where the Respondent had filed a suit at the Trial Court without obtaining a consent from Land Adjudication Officer – a what time was such consent to be filed - Land Consolidation Act, section 8; Land Adjudication Act, section 30

Brief Facts:
The Defendants in the Trial Court filed their respective defences to the suit and later filed a notice of preliminary objection to the effect that the suit offended the provisions of section 8 of Land Consolidation Act as read with section 30 of Land Adjudication Act and sought that the suit be struck out with costs.
Upon the hearing of the preliminary objection, the Trial Court struck out the plaint. The Appellant being dissatisfied with the whole of that decision on the preliminary objection lodged the instant appeal contending that the Trial Court erred in law in finding that consent of the Land Adjudication Officer was to be filed at the time the suit was instituted.

Issue:

  1. Whether the consent of the Land Adjudication Officer was to be filed at the time of institution of suit; Whether a consent not so filed at the time of institution of suit but produced by the Plaintiff’s counsel at the hearing of the preliminary objection should be considered or acknowledged by the court.
  2. Whether it was proper to entertain and uphold a preliminary objection raised 12 years after the institution of a suit. Read More...

Relevant provisions of the law
Land Consolidation Act (Cap 283)
Section 8
Staying of land suits
8.(1)Subject to the provisions of this section, no person shall institute and no court whatever shall take cognisance of, or proceed with or continue to hear and determine, any proceedings in which the ownership or the existence under native law and custom of any right or interest whatsoever in, to or over any land in an adjudication area is called in question or is alleged to be in dispute unless the prior consent in writing of the Adjudication Officer to the institution or continuance of such proceedings has been given.
(2)No officer of any court whatever shall issue any plaint or other legal process for the institution or continuance of any proceedings which by virtue of the provisions of subsection (1) of this section are for the time being prohibited, except upon being satisfied that the consent required by those provisions has been given.
(3)Nothing in the foregoing provisions of this section shall prevent the enforcement or execution of any final order or decision given or made in any proceedings in respect of any land in an adjudication area, where such order or decision is not the subject of a pending appeal at the time of the application of this Act to such land.
(4)A certificate signed by an Adjudication Officer certifying any parcel of land to be, or to have become on a specified date, land within an adjudication area shall be conclusive evidence that the land is such land.
(5)Every certificate purporting to be signed by an Adjudication Officer shall be received in evidence and be deemed to be so signed without further proof, unless the contrary is shown.

Land Adjudication Act (Cap 284)
Section 30
Staying of land suits
30(1) Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act.
(2) Where any such proceedings were begun before the publication of the notice under section 5 of this Act, they shall be discontinued, unless the adjudication officer, having regard to the stage which the proceedings have reached, otherwise directs.
(3) Any person who is aggrieved by the refusal of the adjudication officer to give consent or make a direction under subsection (1) or (2) of this section may, within twenty-eight days after the refusal, appeal in writing to the Minister whose decision shall be final.
(4) The foregoing provisions of this section do not prevent a final order or decision of a court made or given in proceedings concerning land in an adjudication section being enforced or executed, if at the time this Act is applied to the land the order or decision is not the subject of an appeal and the time for appeal has expired.
(5) A certificate signed by an adjudication officer certifying land to be, or to have become on a particular date, land within an adjudication section shall be conclusive evidence that the land is such land.
(6) Every certificate purporting to be signed by an adjudication officer shall be presumed to be so signed unless the contrary is shown.

Held:

  1. The mandatory terms and language employed in section 8 of Cap 283 and section 30 of Cap 284 was that the provisions of the two Acts were an absolute bar and they made the suit incompetent from its inception if no consent was filed with the suit and that implementation of that law was placed on the litigants and the Court, with additional remedial safeguards applicable where a violation of those provisions was noted.
  2. The burden of preventing the institution of the prohibited proceedings was distributed twofold: first, before the institution of proceedings. It was cast upon both the person intending to commence any proceedings and the court. Both had to ensure that the consent had been obtained beforehand. The intending litigant was to desist, and the court was to decline, the institution of a suit before consent was issued. The other measures of barring any hearing of the matter were merely supplemental to the main bar which was that no person was to institute any proceedings.
  3. The Act also recognized the probability of instances where a litigant had managed to institute the proceedings for one reason or another, including human error, notwithstanding that such a litigant had failed to obtain consent. The burden in such instances was shifted to the Court to take appropriate action to bar issuance of process, or if process had issued, to bar such suit from proceeding to hearing and determination. The suit before the Trial Court fell into that last category. Section 8 of Cap 283 and section 30 of Cap 284 opened up a window through which a preliminary objection could be raised against the suit.
  4. Proof of the obtainance of the consent had to be furnished at the time the suit was being instituted. Nullity of the suit begun at inception of the proceedings if no prior consent had been obtained and the jurisdiction of the court had not been properly invoked.
  5. Jurisdiction was everything, without which, a court of law was to down its tools in respect of a matter before it the moment it held the opinion that it was without it. Want of consent warranted the court to determine that it had no jurisdiction from the commencement of the suit, and to dismiss or strike it out.
  6. The production of such a consent at the hearing of the preliminary objection did not save the suit from dismissal as it was the production at the commencement and the satisfaction of the Court that consent had been issued at that stage, that made it possible to deem the legal requirements in either of the two sections as having been met at the time of the filing of the suit.
  7. When the suit was already rendered a nullity by reason of default of the plaintiff to satisfy the Court at the commencement of the suit, no subsequent production of a consent could redeem it.
  8. Preliminary objections on points of law could be raised at any stage of the proceedings.Whereas they were to be preferably raised early during the proceedings, they could be raised at any time while the suit was still active.
  9. There was no merit in the ground that the preliminary objection was raised after 12 years.

Appeal dismissed with costs to the Respondent.

JURISDICTION The Constitution does not envisage the creation of the position of Deputy Speaker of a County Assembly and the creation of such a position would be unconstitutional.

Douglas Bundi Kirimi v Joseph Kaberia Arimba, Speaker County Assembly of Meru & 3 others
Constitutional Reference No 26 of 2017
High Court at Meru
F Gikonyo, J
May 31, 2018
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the High Court-jurisdiction over matters relating to Standing Orders-whether the High Court had jurisdiction over a matter in which the constitutionality of the provisions of Standing Orders was questioned-Constitution of Kenya 2010, article 165(3).
Devolution Law-County Assembly-Speaker of the County Assembly-temporary absence of the Speaker of the County Assembly-whether a permanent position of Deputy Speaker could be created by Standing Orders in order to deal with the absence of the Speaker, in spite of constitutional provisions requiring the election of a temporary appointee from the membership of the County Assembly in order to deal with the Speaker's absence-Constitution of Kenya 2010, article 178(2)(b); County Governments Act, No 17 of 2012, section 9.
Constitutional Law-constitutional interpretation-interpretation of article 178(2)(b) of the Constitution-how the absence of the Speaker of a County Assembly would be dealt with-whether the Constitution would allow for such an absence to be dealt with by the creation of a permanent position of the Deputy Speaker via County Assembly Standing Orders-Constitution of Kenya 2010, article 106, 107 & 178(2)(b); County Governments Act, No 17 of 2012, section 9.

Brief facts:
The Petitioner challenged the constitutionality of the office of Deputy Speaker provided for in Standing Orders 4, 14 and 15 of the County Assembly of Meru. He stated that the Constitution recognized the office of the Speaker in article 177 and provided in article 178(2)(b) that in the absence of the Speaker, the County Assembly would appoint any other member of the County Assembly to serve in his place. He further elaborated that section 9 of the County Governments Act referred to the stated article 178(2)(b) of the Constitution. The Petitioner's case was that there was no constitutional or statutory provision that allowed for the existence of the office of the Deputy Speaker of a County Assembly. The Petitioner stated that the illegal position of Deputy Speaker in Meru County continued to attract benefits, emoluments and special allowances at public expense.

Issues:

  1. Whether the High Court had jurisdiction over a matter relating to County Assembly Standing Orders.
  2. Whether in providing for the position of Deputy Speaker, despite the fact that the Constitution did not contemplate the existence of such a position, Standing Order 14 of the Meru County Assembly was unconstitutional. Read More..

Held:

  1. A court's jurisdiction flowed from the Constitution or legislation or both and it could only exercise jurisdiction as conferred by the Constitution or written law. The Court could not arrogate to itself jurisdiction which exceeded that which was conferred upon it by law.
  2. The constitutional reference was about a matter of constitutional interpretation and a determination as to whether something done under the authority of the Constitution was or was not consistent with the Constitution. The High Court's jurisdiction to make determinations on such matters was provided for in article 165(3) of the Constitution.
  3. Standing Orders were made by the County Assembly under the authority of the Constitution and enabling legislation. They had to be consistent with the Constitution and the enabling legislation, which was the County Governments Act.
  4. Standing Order 14 of the Meru County Assembly drew its authority from article 178(2)(b) of the Constitution. Article 178(2)(b) of the Constitution provided for the election by the County Assembly of a member of the County Assembly to serve the role of the Speaker in the absence of the Speaker. Only persons elected in accordance with article 178(1) and 178(2)(b) of the Constitution were capable of exercising the functions of the Speaker. Any other person by whatever name called could only pretend to exercise the power and duties of Speaker; and of course, in violation of the Constitution.
  5. Articles 106 & 107 of the Constitution provided for Speakers and Deputy Speakers of the House of Parliament. Those provisions expressly provided for the position of Deputy Speaker with a clear procedure of appointment and the relevant duties.
  6. Standing Order 14 of the Meru County Assembly proclaimed that it gave effect to article 178(2) (b) of the Constitution. While the person elected as Speaker under article 178(2) (b) of the Constitution would serve as Speaker only for a particular time, the Deputy Speaker contemplated under the Standing Orders had a procedure for appointment and replacement in case of a vacancy in the office of Deputy Speaker. The person elected under article 178(2)(b) would not be referred to as Deputy Speaker and would only serve in the absence of the Speaker for a particular period.
  7. The drafters of Standing Order 14 attempted to borrow from constitutional provisions relating to the Speakers and the Deputy Speakers of the House of Parliament. That kind of transposition was not permissible where there was no lacuna or gap in the Constitution. Article 178 of the Constitution was clear in providing that the only person who would otherwise perform the functions of the office of the Speaker was the person elected in accordance with article 178(2)(b) of the Constitution. The County Government Act, which was in line with the Constitution, did not envisage or authorize the creation of the office of Deputy Speaker for a County Assembly.

Petition allowed.
Orders:-

  1. Judgment to be served upon the Speaker as well as the County Assembly of Meru for appropriate action.
  2. No orders as to costs.
JURISDICTION The test of whether a question was one of law or of fact was whether the appellate court could determine the issue raised without reviewing or evaluating the evidence

Sumra Irshadali Mohammed v Independent Electoral and Boundaries Commission & another [2018] eKLR
Election Petition Appeal No.22 of 2018
Court Of Appeal
At Nairobi
M. Warsame, A. Makhandia & J.O Odek, JJ.A
July 6, 2018.
Reported by Felix Okiri

Download the Decision

Jurisdiction-appellate jurisdiction-jurisdiction of the Court of Appeal - jurisdiction of the Court of Appeal in election petition appeals - appeals relating to matters of law - where the phrase ‘erred in law and fact was inserted in the Memorandum of Appeal – whether the Memorandum of Appeal called the Court to determine matters of fact and as a result deprived the Court Jurisdiction to entertain a matter - Elections Act, section 85A
Statutes-interpretation of statutory provisions-section 85A of the Elections Act-appellate jurisdiction in election petitions-appeals from the High Court to the Court of Appeal-the requirement that election petition appeals to the Court of Appeal were to be founded on questions of law only-the nature of questions that would constitute questions of law- the test of determining what was a matter of law in an election petition appeal -Elections Act, No 24 of 2011, section 85A.
Electoral Law – elections – election documents – Form 35B – the absence of 35B– what was the effect of the absence of Form 35B which was a material document
Electoral Law – election petition – joinder of parties – scope of parties who can be joined as respondents in an election petition – where the Returning Officer (R.O) was not enjoined as a Respondent - whether the R.O who conducted the election that was complained of was supposed to be a mandatory party to the petition –whether the non-joinder of the R.O was fatal - Elections (Parliamentary and County Elections) Petition Rules, Rule 2
Election law- election petition-scrutiny and recount of votes – where scrutiny report indicated that the original form 35B was not presented by the 1st Respondent for scrutiny due to the reason that the initial R.O had since left office and the subsequent R.O could not trace Form 35B - what was the purpose for an order of scrutiny and recount?
Judicial Officer - judge – recusal of a judge of the Court of Appeal – application for the recusal of a judge of the Court of Appeal - principles for determining the recusal of a judge – what was the test of determining bias where an application was made for the disqualification of a person from acting in a judicial or quasi-judicial capacity on the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding

Brief facts:
The Appellant was aggrieved by the conduct of the elections and the results declared by the 1st Respondent. The Appellant alleged that there were different sets of results, including: those that were announced by the returning officer (R.O); those that were shown on the public portal; and the others that were published in the Kenya Gazette. It was contended that each of those results showed different discrepancies and therefore, it was impossible to ascertain the actual results declared after the elections in Embakasi South Constituency.
The Appellant sought declarations that the 2nd Respondent was not validly elected; and that the Appellant was the validly elected Member of National Assembly for Embakasi South Constituency.

Issues:

  1. What was the jurisdiction of the Court of Appeal in appeals from election petitions?
  2. What was the test in determining whether a question was one of law or of fact?
  3. the R.O who conducted the election that was complained of was supposed to be a mandatory party to the petition or whether his non-joinder was fatal.
  4. Whether it was incumbent upon the Independent Electoral and Boundaries Commission (the 1st Respondent) to transmit results for all the elective positions.
  5. What was the authoritative set of results between the results in - 1st Respondent public portal; those published in the Kenya Gazette; and those announced by the returning officer where there was inconsistency in those different results?
  6. What was the effect of the absence of Form 35B which was a material document in parliamentary elections?
  7. What was the purpose for an order of scrutiny and recount?
  8. What was the test of determining bias where an application was made for the disqualification of a person from acting in a judicial or quasi-judicial capacity on the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding?
  9. When was the issue of margins relevant in an election other than a Presidential election? Read More..

Held:

  1. The Court’s jurisdiction was limited by section 85A of the Elections Act (the Act). The jurisdiction of the Court in appeals from election petitions was limited to only matters of law. A matter of law was that which contained any of the following elements:
    1. the technical element: involving the interpretation of a constitutional or statutory provision; the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;
    2. the evidentiary element: involving the evaluation of the conclusions of a Trial Court on the basis of the evidence on record.
  2. With specific reference to section 85A of the Act, a question of law was one involving:
    1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, subsidiary legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor; the application of a provision of the Constitution, an Act of Parliament, subsidiary legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;
    2. The conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the Appellant claimed that such conclusions were based on no evidence, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable tribunal would arrive at the same. It was not enough for the Appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.
  3. Under section 85A of the Act, a petition which required the Appellate Court to re-examine the probative value of the evidence tendered at the Trial Court, or invited the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, was not to be admitted.
  4. The Court was a court of justice, and where the grounds raised in the memorandum of appeal disclosed that the Court was asked to consider a matter of law, then the Court ought to consider the ground raised despite the fact that the first words as set out in the memorandum included the phrase ‘erred in law and fact.’The test of whether a question was one of law or of fact was not the appellation given to such question by the party raising the same; rather, it was whether the appellate court could determine the issue raised without reviewing or evaluating the evidence, in which case, it was a question of law.
  5. Drafting of pleadings was a technical matter. If the judge had deduced an unknown legal principle from the facts of the case to arrive at his decision, it would be preposterous to shut out a litigant simply on account of inelegance in drafting. The Court had to ensure that justice prevailed at all times and that section 85A of the Act was not used as a roadblock to shut out genuine grounds of appeal on account of poor drafting of the grounds of appeal. The memorandum of appeal clearly set out various issues of law upon which the Appellant had challenged the judgment of the Trial Court.
  6. In line with section 85A(1)(a) of the Elections Act, any record of appeal was to be filed within thirty days of the judgment sought to be appealed from. In the instant appeal, the judgment of the High Court was delivered on March 22, 2018. Rule 9 of the Court of Appeal (Election Petition) Rules also required that the record of appeal be filed within thirty days from the date of the judgment of the High Court.
  7. The record of appeal contained 14 volumes. The first 8 volumes were filed on the March 29, 2018. Those volumes were therefore within time. However, the remaining 6 volumes were out of time as they were filed between the April 2, 2018 and the April 5, 2018. The failure to file the remaining volumes was not an omission that went to the root of the appeal or in any way affected the jurisdiction of the Court. A court dealing with a question of procedure, where jurisdiction was not expressly limited in scope – as in the case of articles 87(2) and 105(1) (a) of the Constitution could exercise discretion to ensure that any procedural failing that lent itself to cure under article 159, was cured.
  8. Certain procedural shortfalls did not have a bearing on the jurisdiction of judicial power to consider a particular matter. Procedural shortcomings only affected the competence of the cause before a Court without affecting that Court’s jurisdiction to entertain them. A Court could cure such a defect, taking into account the relevant facts and circumstances.
  9. Deviations from and lapses in form and procedures which did not go to the jurisdiction of the Court, or to the root of the dispute or which did not at all occasion prejudice or miscarriage of justice to the opposite party were not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who might in many cases be innocent since the rules of procedure were complex and technical. Instead, in such instances, the Court should do justice by sparing the parties the draconian approach of striking out pleadings.
  10. While it was good practice to seek leave to file documents out of time when filing a memorandum of appeal, in the instant appeal, it was only the supplementary record of appeal that was filed late. That was the kind of defect that article 159 of the Constitution mandated the Court to cure. There was no merit in the complaint.
  11. The fact that the R.O was not joined, yet he was alleged to have participated in a scheme to rig in the 2nd Respondent amounted to condemning him unheard and would go against the rules of natural justice. It was necessary to make the R.O a party to the petition. However, the contention that the Appellant exposed himself to any risk by the said omission was not right. That was because the issue was moot having been conclusively determined as a preliminary issue and no appeal had been preferred against the said decision.
  12. The Trial Court failed to take into consideration the provisions of section 106, 107 and 110 of the Evidence Act. The said provisions bestowed upon the Respondents the duty to answer to the case of the Appellant. That was not done.
  13. While pleadings played a pivotal role, they did not lead to the conclusion that elegant or well drafted pleadings would automatically guarantee a success in a case. What guaranteed success was the evidence tendered by the parties and application of the facts on the law.
  14. Rule 2 of the Elections (Parliamentary and County Elections) Petition Rules defined a ‘Respondent’ in an election petition as including the R.O who conducted the election that was complained of. Rule 14 of those Rules further required a Respondent to file affidavits sworn by him as well as each of the witnesses that he intended to call during hearing of the petition. However, the election court had canvassed that issue and found out that the R.O was not a mandatory party to the petition.
  15. Section 39 of the Elections Act did not require the 1st Respondent to transmit results for all the elective positions, only for the presidential election. However, for reasons best known to itself, the 1st Respondent opted to electronically submit the results of the election that was subject of the appeal, and as conceded by it, made various errors in that transmission. That of itself was not a ground to vitiate an election.
  16. The results contained in the form 35A were the final results that ought to be declared. It was incumbent upon the R.O to count, collate, tabulate and declare the winner after an election. That exercise had to be based on the results contained and captured in Forms 35A from all polling stations. The tallying, tabulation and collation had to be accurate, verifiable and secure in order to meet the constitutional threshold set out under article 81 and 86 of the Constitution. That position was fortified under section 39 (1) of the Election Petition Act, which provided that the R.O was responsible for tallying, announcement and declaration of the results in the prescribed form.
  17. Free and fair elections was the fountain source of parliamentary democracy. The attempt of the R.O to use two different and divergent results to declare and gazette the winner and the Trial Court’s attempt to chart the easy course of sustaining an invalid and unsustainable results, unsupportable by evidence was a clear manifestation of dereliction of constitutional obligation and duty on the 1st Respondent and Trial Court. The R.O, as well as the Trial Court did not exercise their jurisdiction, prudently reasonably and unfortunately arrived at a perverse conclusion.
  18. The absence of Form 35B which was a material document was fatal. It was impossible to say with certainty and precision that the 2nd Respondent was the winner. Once the validity of the declaration of results of the 2nd Respondent was in question, clear doubt was created, it was mandatory to place material to persuade the Trial Court that the results, declaration and gazettement were legitimate. That was not done. The explanation proffered and decision arrived at by the Trial Court could not stand judicial scrutiny and reasoning. The results given by the 1st Respondent were not verifiable and were in violation of the mandatory requirements of articles 81 and 86 of the Constitution, section 39 and regulation 83 of the Elections Act and General Regulation.
  19. The purpose for an order of scrutiny and recount was to:
    1. Assist the court to investigate if the allegations of irregularities and breaches of the law complained of were valid. Assist the court in determining the valid votes in favour of each candidate.
    2. Assist the court to better understand the vital details of the electoral process and gain impressions on the integrity of the electoral process.
  20. In the instant matter, the findings of the scrutiny report indicated that the original form 35B was not presented by the 1st Respondent for scrutiny due to the reason that the initial R.O had since left office and the subsequent R.O could not trace Form 35B. Form 35B was therefore not scrutinized as per the orders of the court. The statutory documents used in the conduct of the election belonged to the 1st Respondent, and were not personal property of the various officials who were employed for the purpose of the election. The fact that an officer had left employment was therefore not ground for refusing to avail the necessary documents pursuant to court orders.
  21. Section 39(1A)(1) of the Act made it mandatory for the R.O to tally, announce and declare in the prescribed form, the final results from each polling station in the constituency for the election of a member of the National Assembly. That information had to be captured in the Form 35B and in the manner prescribed.
  22. The only way that the Court could have verified the results of the election was by determining what the results in the original forms were; however, those were not availed and as such, it could not be said that the Appellant failed to meet the burden of proof to the required standard. The 1st Respondent failed to fully and candidly discharge its duty to bring before the Court all evidence in its possession, control and within its ability to enable the Court to decide the petition. In the absence of the validated form 35B from the 1st Respondent, there was no verifiability of Form 35C.
  23. The Court had no jurisdiction to re-evaluate a factual determination unless such conclusions were based on no evidence or not supported or arising from the evidence on record or that the conclusions were so perverse, or illegal that no reasonable Court addressing its mind and wearing its judicial lenses and being conscious to the applicable legal principles would arrive at such conclusion.That was the only acceptable and required standard that inhibited the jurisdiction of the Court.
  24. With 4 different sets of results, absence of all forms 35A and refusal of the 1st Respondent to avail the original Form 35B, it was against or contrary to fair play and in negation of the principles of accuracy, verifiability and transparency to say that the 2nd Respondent legally and legitimately won the election. The Appellant placed enough and adequate material to nullify the election of the 2nd Respondent.
  25. To disqualify a person from acting in a judicial or quasi-judicial capacity on the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding, a real likelihood of bias had to be shown. A real likelihood of bias had to be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as one might readily have ascertained and easily verified in the course of his inquiries. A real likelihood of bias had to be proved to exist before proceedings were vitiated.
  26. The apprehension of bias had to be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test was what would an informed person, viewing the matter realistically and practically and having thought the matter through, conclude. That test contained a two-fold objective element:
    1. The person considering the alleged bias had to be reasonable and the apprehension of bias itself had to be reasonable in the circumstances of the case. The reasonable person had to be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that formed part of the background and apprised also of the fact that impartiality was one of the duties the judges swore to uphold.
    2. The reasonable person was also to be taken to be aware of the social reality that formed the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.
  27. A real likelihood or probability of bias had to be demonstrated and a mere suspicion was not enough. The existence of a reasonable apprehension of bias depended entirely on the facts. The threshold for such a finding was high and the onus of demonstrating bias lay with the person who was alleging its existence.
  28. To a reasonable man, it appeared that a party who had an interest in the outcome of the election was employed by the 1st Respondent, who had a constitutional edict to remain impartial. That not only gave rise to the apprehension of bias, but also showed that there was a real likelihood of bias. The election in that tallying center was not conducted in a free and fair manner.
  29. The margin of votes between the Appellant and the 2nd Respondent was a mere 165 votes. The issue of margins in an election other than a Presidential election, could only bear transient relevance and only where it was alleged that there were counting, and tallying errors or other irregularities that affected the final result. A narrow margin between the declared winner and the runner-up beckoned as a red flag where the results were contested on allegations of counting and tallying errors at specified polling stations. Where a re-count, re-tally or scrutiny did not change the final result as to the gaining of votes by candidates, the percentage or margin of victory however narrow, was immaterial as a factor in the proper election-outcome. To nullify an election in such a context would contradict article 180 (4) of the Constitution. The mere description of a percentage or margin as small or wide was of no legal import, unless it was inextricably linked to a definite uncertainty as to who won an election.
  30. The election for the Member of National Assembly for Embakasi South Constituency was not conducted in accordance with the law.

Appeal allowed with costs to the Appellant
Orders

  1. The judgment of the election Court dated March 2, 2018 and the subsequent orders were set aside in their entirety;
  2. The 2nd Respondent’s application dated April 10, 2018 seeking to strike out the appeal was dismissed with costs to the Appellant;
  3. The certificate issued by the Election Court pursuant to section 86 of the Elections Act was set aside and substituted with a Certificate that the 2nd Respondent was not validly declared as having been elected as Member of National Assembly for Embakasi South Constituency during the elections held on the August 8, 2017;
  4. The 1st Respondent was directed to organize and conduct a fresh election for the position of Member of National Assembly for Embakasi South Constituency in conformity with the Constitution and the Elections Act;
  5. The Appellant was to have costs of the petition before the High Court, which costs were to be taxed by the Deputy Registrar, but in any event not to exceed the sum of Ksh.1,500,000/= to be paid equally by the Respondents;
  6. The costs to be paid to the Appellant with respect to the application as well as the appeal were not to exceed the sum of Kshs.1,000,000/= to be paid equally by the Respondents.

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