Weekly Newsletter 041/2018

Weekly Newsletter 041/2018



Kenya Law

Weekly Newsletter


Requirements in the Mutunga Rules for litigants to pay court fees before instituting constitutional petitions to enforce the Bill of Rights are not unconstitutional.
Jacob Nyandega Osoro v Chief Justice of Kenya & another
Constitutional Petition 115 of 2017
High Court at Nairobi
E C Mwita, J
September 17, 2018
Reported by Beryl A Ikamari
Download the Decision
 
Constitutional Law-interpretation of constitutional provisions-interpretation of article 22(3)(c) of the Constitution-constitutionality of payment of court fees for purposes of instituting a constitutional petition for the enforcement of the Bill of Rights-whether the requirement that no fees may be paid was the equivalent to a requirement that no fees shall be paid, for purposes of institution of petitions for the enforcement of fundamental rights and freedoms-whether it was permissible for Rules promulgated by the Chief Justice under article 22(3) of the Constitution to provide for the payment of court fees for purposes of the institution of petitions for the enforcement of fundamental rights and freedoms-Constitution of Kenya 2010, article 22(3)(c); Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules), rules 3(5)(c), 33 and 34.
 
Brief facts:
The Petitioner challenged the constitutionality of rules 3(5)(c), 33 and 34 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules.) Those rules entailed stipulations on the payment of court fees for persons filing constitutional petitions for the enforcement of fundamental rights and freedoms. Rule 3(5)(c) of those Rules provided for the timely disposal of such proceedings at an affordable cost, rule 33 required parties to pay fees that were the same as those applicable to civil proceedings at the High Court and rule 34 provided for applications to the Registrar for purposes of seeking an exemption from paying court fees.
The Petitioner contended that the impugned rules violated his fundamental rights and freedoms guaranteed under articles 19(3)(a), 21(1), 22(1) and 22(3)(c) of the Constitution. Inter alia, the Petitioner sought court orders compelling the Chief Registrar of the Judiciary (the 2nd Respondent) and her agents to accept documents on the enforcement of the Bill of Rights and to undertake all the necessary procedures for the proper commencement of proceedings without court fees being paid.

 
Issues:
  1. Whether the provisions of rules 3(5)(c), 33 and 34 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules) in so far as they required litigants to pay court fees before instituting petitions for the enforcement of fundamental rights and freedoms, were inconsistent with article 22(3)(c) of the Constitution and were therefore unconstitutional.
  2. What principles of interpretation were applicable to a determination by the Court as concerned the constitutionality of a statute?
  3. What was the rationale of article 22(3)(c) of the Constitution which provided that no fees may be charged for commencing proceedings relating to the enforcement of the Bill of Rights?
Relevant provisions of the law.
Constitution of Kenya 2010
Article 22(3);

(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that––
(a) the rights of standing provided for in clause (2) are fully facilitated;
(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
(c) no fee may be charged for commencing the proceedings;
(d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and
(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.

 
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Rule 3(5);

(5) For the purpose of furthering the overriding objective, the Court shall handle all matters presented before it to achieve the—
(a) just determination of the proceedings;
(b) efficient use of the available and administrative resources;
(c) timely disposal of proceedings at a cost affordable by the respective parties; and
(d) use of appropriate technology.


Rule 33;
33. Court Fees
There shall be paid in respect of all proceedings under these Rules the same court fees as are payable in respect of civil proceedings in the High Court in so far as the same are applicable.


Rule 34;
34. Waiver of court fees
(1) A person who wishes to be exempted from paying court fees may apply to the Registrar.
(2) An application under sub-rule (1) may be made by informal documentation.
(3) The reasons for the Registrar’s decision shall be recorded.
Held:
  1. Article 22(3) gave the 1st Respondent power to make rules for the manner of initiating proceedings for the enforcement of the Bill of Rights and it provided in part that no fee may be charged for commencing such proceedings. Under that provision, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, the Mutunga Rules, were promulgated.
  2. The Mutunga Rules provided for court fees to be paid for constitutional petitions for the enforcement of fundamental rights and freedoms. Rule 3(5) of the Mutunga Rules, inter alia, provided that the Court should handle all matters presented before it for the purpose of achieving the timely disposal of proceedings at a cost affordable by the respective parties. Rule 33 of those rules was to the effect that the court fees payable in constitutional petitions for the enforcement of fundamental rights and freedoms would be the same as the fees payable for civil proceedings at the High Court. Rule 34 of the Mutunga Rules provided for applications for exemptions from the payment of court fees to be made to the Registrar.
  3. Rule 3(3) of the Mutunga Rules provided inter alia that the Rules would be interpreted in accordance with article 259(1) of the Constitution in order to advance the purposes and values that they stood for. Therefore, the Rules should be given a purposive interpretation in order to advance the values and principles in the Bill of Rights.
  4. A statute or statutory provision should be read in a way that would aid in achieving fundamental values. The reading of the statute or statutory provision should also include an examination of the object and purpose of the Act or statutory provision including rules. As far as possible the provisions should be read in conformity with the Constitution. A statute or statutory provision should be read to be consistent with the Constitution and it should only be declared unconstitutional or void where it was impossible to rationalize or reconcile it with the Constitution or the Act.
  5. Part of the criteria that the Rules made by the Chief Justice under article 22(3) of the Constitution had to satisfy was that no fees may be charged for commencing the proceedings. The Mutunga Rules required fees to be paid before a constitutional petition alleging violations of fundamental rights and freedoms was instituted. It was important to note that the provision provided that "no fees may be paid" and not that "no fees shall be paid." The words were permissive and they had to be interpreted to mean that fees should be paid except where the circumstances may not allow. Rule 34 of the Mutunga Rules made provision for an application for an exemption from paying court fees and that provision satisfied the requirements of article 22(3)(c) of the Constitution.
  6. In undertaking statutory interpretation, the Court had to look at both the text and context in order to ascertain the true legislative intent. Neither the text nor the context could be ignored as both were important and a statute would best be interpreted when there was an appreciation of why it was enacted.
  7. The payment of court fees should not be a hindrance to the right of access to justice as provided for in article 48 of the Constitution. The exemption provided for under rule 34 of the Mutunga Rules enabled those who were unable to pay court fees to access courts.
  8. The rationale of article 22(3)(c) of the Constitution was that all persons would exercise their right of access to justice regardless of their financial status. However, those who were able to pay court fees had to pay court fees while those that were unable, would not be denied the right to access courts.
Petition dismissed.
 
Kenya Law
Case Updates Issue 042/2018
Case Summaries

CONSTITUTIONAL LAW Supreme Court does not have jurisdiction to entertain appeals from the Political Parties Tribunal where the issue does not involve interpretation and application of the Constitution or a matter of general public importance

Olweny v James Onyango K’oyoo and 2 others [2018] eKLR
Supreme Court of Kenya
Petition No 12 of 2017
Consolidated with
Petition No 13 of 2017
D K Maraga, CJ & P,  P M Mwilu, DCJ & VP, J B Ojwang, S C Wanjala, & N S Ndungu, SCJJ
October 5, 2018
Reported by Ian Kiptoo

Download the Decision

Constitutional Law-jurisdiction of the Supreme Court-appellate jurisdiction-claim that section 41 (2) of the political parties Act conferred appellate jurisdiction to the Supreme Court on matters of law-where the matter did not involve interpretation or application of the Constitution-whether the Supreme Court had jurisdiction, under section 41 (2) of the Political Parties Act, to entertain appeals from the Political Parties Tribunal where the issue did not involve interpretation and application of the Constitution or was a matter of general public importance-Constitution of Kenya, 2010, article 163 (4) (a) and (b); Political Parties Act,  section 41 (2)

Brief facts:
The Appellant appealed against the Court of Appeal’s decision on the grounds that; there was erroneous reliance on fresh evidence; upset of election results without any material evidence; and relying on evidence which had been found not to be credible.
The 1st Respondent filed a preliminary objection to the effect that the Court had no jurisdiction to hear and determine the instant appeal since there was no certification and leave to appeal that had been granted and neither was there any matter involving the interpretation and application of the Constitution. In addition, it was stated that section 41 (2) of the Political Parties Act did not confer jurisdiction on the instant Court as Parliament could not confer jurisdiction upon a court of law beyond the scope permitted by the Constitution.
On the other hand, the Appellant opposed the preliminary objection on grounds that it did not meet the required threshold for preliminary objections. Further, that the Court of Appeal had violated the rights of the Appellant under articles 50(4) and 38 of the Constitution of Kenya, 2010 (Constitution) by relying on an impugned judgment to arrive at the decision that it did.

Issue:

  1. Whether the Supreme Court had jurisdiction, under section 41 (2) of the Political Parties Act, to entertain appeals from the Political Parties Tribunal where the issue did not involve interpretation and application of the Constitution or was a matter of general public importance.Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 163(3) (b) (ii)
“The Supreme Court shall have:
 (b) Subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from—

 (i) The Court of Appeal; and
  (ii) Any other court or tribunal as prescribed by national legislation.

Article 163 (4) (a) and (b)
“Appeals shall lie from the Court of Appeal to the Supreme Court—

 (a) As of right in any case involving the interpretation or application of this Constitution; and
 (b) In any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
 (5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”

Political Parties Act
Section 41(2)
“An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court.”

Held :

  1. The appellate jurisdiction of the Court under article 163 (4) (a) and (b) of the Constitution had been comprehensively addressed in various decisions of the Court.
  2. Where a court’s jurisdiction was objected to by any party to the proceedings before that court, such an objection had to be dealt with as a preliminary issue. Indeed, a jurisdictional issue was a question of law, to be answered before the meritorious determination of any cause. The preliminary objection in the instant case, fell squarely within the four corners of Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors (1969)EA 696 case and was therefore properly before the Court.
  3. An appeal to the Court from any other court or tribunal was still subject to article 163 (4) (a) and (b) of the Constitution. Therefore, section 41 (2) of the Political Parties Act could not support an appeal to the Supreme Court outside the strictures of article 163(4) (a) and (b) of the Constitution. The Appellant had to satisfy the Court that the appeal in question involved the interpretation or application of the Constitution; or that the said appeal had been certified as involving a matter of general public importance. As the appeal had not been certified as involving a matter of general public importance, its competence could only be considered under article 163 (4) (a) of the Constitution.
  4. What was disclosed from the record did not demonstrate that the judgments of the two superior courts turned on any question involving the interpretation or application of the Constitution.
  5. The argument that the Court of Appeal relied on an impugned judgment and in so doing infringed upon the Appellant’s rights to a fair hearing, without more, could not bring the appeal within the rubric of what was envisaged under article 163(4) (a) of the Constitution. The cause of action did not involve the application and interpretation of articles 50(4) and 38 of the Constitution; nor was the issue before any of the two superior Courts. Consequently, the appeal could not be admitted pursuant to the provisions of article 163 (4) (a) of the Constitution.

Appeal dismissed
Orders

  1. The Preliminary Objection was allowed.
  2. The Petitions of Appeal as consolidated were struck out.
  3. The Appellant would bear the costs of the Appeal.
JURISDICTION Supreme Court does not have jurisdiction to entertain an appeal that does not raise a question of constitutional interpretation or application

Rutongot Farm Ltd v Kenya Forest Service and 3 others [2018] eKLR
Supreme Court of Kenya
Petition No 2 of 2016
P M Mwilu, DCJ & VP; J B Ojwang, S C Wanjala, N S Ndung’u & I Lenaola, SCJJ
September 19, 2018
Reported by Ian Kiptoo

Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction-appellate jurisdiction on matters involving the interpretation or application of the Constitution-whether the Supreme Court had jurisdiction to entertain an appeal that did not raise a question of constitutional interpretation or application-Constitution of Kenya, 2010, article 163(4) (a)

Brief Facts:
The 1st Respondent contended that the Appellant could only approach the Court under article 163(4)(b) of the Constitution of Kenya, 2010 (Constitution) and as such, the Appellant ought to have first obtained certification, either from the Court of Appeal, or the instant Court, certifying that the appeal raised matters of general public importance. Furthermore, that the dispute arose out of a contractual claim based on the law of contract and which ought to be enforced within the domain of private law and not public law.
In opposing the Preliminary Objection, the Appellant contended that the jurisdiction of the Court was properly invoked through article 163(4) (a) of the Constitution, as the issues in contention revolved around the interpretation and application of the Constitution.

Issue:

  1. Whether the Supreme Court had jurisdiction to entertain an appeal that did not raise a question of constitutional interpretation or application. Read More...

Held:

  1. The question whether a litigant had properly invoked the Court’s jurisdiction under article 163(4) (a) of the Constitution had been determined time and again by the Court. The established guiding principles were indeed pronounced in various cases.
  2. In order to evaluate the jurisdictional standing, the test was whether the appeal raised a question of constitutional interpretation or application and whether such a constitutional issue had been canvassed in the Superior Courts leading to the instant appeal. In order to establish that fact, the Court needed to ask itself the following questions:
    1. What was the question in issue at the High Court and the Court of Appeal?
    2. Did the superior Courts dispose of the matter after interpreting or applying the Constitution?
    3. Did the instant appeal raise a question of constitutional interpretation or application, which was the subject of judicial determination at the High Court and the Court of Appeal?
  3. It was apparent from a reading of the record that both the High Court and the Court of Appeal were called upon to determine the rightful owner of the suit land. Neither Court was confronted with a specific question of constitutional interpretation or application as the dispute revolved around analyzing the factual evidence presented and based on the law, determining the ownership of the suit land.
  4. Once proprietary interest had been lawfully acquired, the guarantee to protection of the right to property under article 40 of the Constitution was then expressed in the terms that no person shall be arbitrarily deprived of property. The same guarantee existed in section 75 of the Constitution of Kenya, 1963 (repealed).
  5. The Court in Hassan Ali Joho and Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board SC Petition No.5 of 2012; [2012]eKLR, stated that an appeal lay to the Court under article 163(4)(a) if the issues placed before it revolved around the interpretation and application of the Constitution, and that the interpretation or application of the Constitution had formed the basis for the determinations at the superior Courts below the Court and the same issue had therefore progressed through the normal appellate mechanism to reach the Court.
  6. In Gitarau Peter Munya and Hassan Ali Joho, it was stated that the lower Court’s determination of an issue appealed had to have taken a trajectory of constitutional application or interpretation and an appeal within the ambit of article 163(4)(a) was one founded on cogent issues of constitutional controversy.
  7. The Appellant faulted the Court of Appeal for allegedly violating various provisions of the Constitution such as articles 21, 25, 27, 40, and 68 of the Constitution. It thus contended infringement of the right to fair hearing and trial and alleged discrimination for being denied an opportunity to exercise the right to acquire the suit land. Even though the Appellant alluded to infringement of its constitutional rights, the issue for the Superior Court’s determination was who the rightful owner of the suit land was. That would entail examination of the facts on record and based on the governing laws, deciding on who between the 1st Respondent and the Appellant was entitled to the suit land. No question of constitutional interpretation or application was therefore before those Courts or the instant Court. Neither was such an issue canvassed at the superior Courts.
  8. The Appellant having not sustained a case that raised any constitutional issues, the Court was not vested with the jurisdiction to hear and determine the instant appeal pursuant to the provisions of article 163(4) (a) of the Constitution. The concept of abuse of the process of the Court bore no fixed meaning, but had to do with the motives behind the guilty party’s actions; and with a perceived attempt to manoeuvre the Court’s jurisdiction in a manner incompatible with the goals of justice. The bottom line in a case of abuse of Court process was that, it appeared so hopeless that it plainly and obviously disclosed no reasonable cause of action and was so weak to be beyond redemption. Beyond that threshold, lay an unlimited range of conduct by a party that may more clearly point to an instance of abuse of Court process.
  9. The mere clothing of an appeal or intended appeal as a question of constitutional interpretation or application did not grant jurisdiction to the Court. Hope was that litigants would take time to acquaint themselves with the now almost settled jurisprudence on the issue and always endevour to rightly approach the Court, in order to save the Court’s time.

Application allowed
Orders

  1. The Preliminary Objection dated April 19, 2016 was upheld.
  2. The Petition of Appeal dated January 22, 2016 was struck out.
  3. The Appellant would bear the costs of the Appeal as costs follow the event.
CIVIL PRACTICE AND PROCEDURE Supreme Court denies application for stay declaring section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015 unconstitutional

Malindi Law Society v Law Society of Kenya, Nairobi Branch and 5 others [2018] eKLR
Civil Application No 20 of 2017
Supreme Court at Nairobi
D K Maraga, CJ & P; P M Mwilu, DCJ & VP; M K Ibrahim, J B Ojwang & S N Ndung’u, SCJJ
September 19, 2018
Reported by Ian Kiptoo

Download the Decision

Civil Practice and Procedure-execution of Judgement-stay of execution-stay of execution pending determination of an appeal-whether the Application that sought to stay the Judgement of the Court of Appeal setting aside the decision of the High Court declaring section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015 unconstitutional, insofar as it related to the transfer of Judges from proceedings of the High Court to those of the Specialized Courts, or vice versa; and insofar as it related to the role of Subordinate Courts with regard to environment and land, had merit

Brief facts:
The Matter arose as a result of the Court of Appeal setting aside the decision of the High Court declaring unconstitutional section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015, insofar as it related to the transfer of Judges from proceedings of the High Court to those of the Specialized Courts, or vice versa; and insofar as it related to the role of Subordinate Courts with regard to environment and land. 
The Applicant moved the Court by Notice of Motion under certificate of urgency seeking Orders that pending the hearing and determination of the intended appeal against the said Judgment, its execution be stayed as the intended appeal was arguable, and would be rendered nugatory if it were in the end to succeed.

Issues:

  1. Whether the Application that sought to stay the Judgement of the Court of Appeal setting aside the decision of the High Court declaring section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015 unconstitutional, insofar as it related to the transfer of Judges from proceedings of the High Court to those of the Specialized Courts, or vice versa; and insofar as it related to the role of Subordinate Courts with regard to environment and land, had merit. Read More..

Held:

  1. The Court had authority to issue Orders for the preservation, in an interim period, of a subject-matter of appeal. In the circumstances, the Court would expect an appeal on a significant question, and would endeavour to determine it appropriately.
  2. The grounds that precious judicial time would have been lost, and costly legal services would have to be engaged, in the event the Court were to allow the forthcoming appeal were not compelling grounds rendering an appeal nugatory – especially as the appeal cause remained only conjectural.
  3. The Applicant had not yet filed a substantive appeal before the Court, since filing the notice of appeal on October 30, 2017.  Under section 33 (1) of the Supreme Court Rules, 2012 an appeal should be lodged within 30 days of the date of filing the notice on appeal – more than 7 months had expired since the filing of notice – and with no application seeking extension of time.
  4. Grant of Stay of existing orders could not be a matter of course.  It rested upon genuine conditions of urgency, merit and dispatch – which were missing in the instance. Hence there was no valid basis for the grant of stay orders.

Application dismissed
Orders

  1. There were no Orders of stay against the Judgment of the Appellate Court.
  2. No order as to costs;
STATUTES Ingredients needed to be satisfied to prove common intention in an offence

Stephen Ariga v Republic [2018] eKLR
Court of Appeal at Nairobi
Criminal Appeal No 49 ‘A’ of 2017
Consolidated with
Criminal Appeal No 49’b’ of 2017
R N Nambuye, M Warsame & A K Murgor
September 21, 2018
Reported by Ian Kiptoo

Download the Decision

Statutes-interpretation of statutes-interpretation of section 21 of the Penal Code-common intention-ingredients of common intention-what were the ingredients needed to be satisfied to prove common intention in an offence-Penal Code, section 21
Criminal Law-common intention-ingredients of common intention in an offence-where it was held Appellants had a common intention in the commission of the offence of manslaughter-what were the ingredients needed to be satisfied to prove common intention in an offence-Penal Code, section 21

Brief facts:
The Appellants were jointly charged before the High Court with four (4) others for the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63), Laws of Kenya. The Appellants appealed against the High Court’s Judgement and conviction for the lesser offence of Manslaughter contrary to section 202 of the Penal Code, and sentence of three (3) years imprisonment each.
The Appellants contended that the Trial Court erred in finding the Appellants guilty of the disclosed offence of manslaughter contrary to section 202 of the penal code; holding that the Appellants had a common intention in the commission of the offence they were ultimately found guilty of and convicted of, namely, manslaughter.

Issues:

  1. What were the ingredients needed to be satisfied to prove common intention in an offence? Read More..

Relevant Provisions of the Law
Penal Code
Section 21
“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purposes an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”.

Held:

  1. Being a first appeal, the Court had a duty to re-hear and reconsider the case that was before the Trial Court and arrive at its own conclusion thereon, bearing in mind that it neither saw nor heard the evidence by the prosecution’s witnesses. It would not be sufficient for the Court to merely scrutinize the evidence to see if there was some evidence to support the Trial Court’s findings and conviction. Furthermore, when it came to a question arising as to which witness should be believed rather than another and that question turned on the manner and demeanor of such a witness, the Court had to be guided by the impressions made by the Trial Court who saw and heard the witnesses who testified.
  2. The Trial Court correctly found that the Appellants and their colleagues were present at the scene of the second shooting incident and that the unlawful cause of death of the deceased was attributable to the Appellants only.
  3. It was plausible that the deceased who was seated in the back seat of PW2’s vehicle as per the uncontroverted testimony of PW 1, 2 and 5 definitely turned as it was humanly probable to face the direction of the shooting and that was how the fatal bullet entered his body through the front of his chest. Therefore, it was the Appellants who shot the deceased from the front.
  4. Section 21 of the Penal Code defined common intention. Common intention generally implied premeditated plan, but that did not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with. Therefore, in line with the definition and principle, the Appellants’ meeting at the scene of the second shooting incident was not for an unlawful purpose. Neither was it for purposes of targeting PW 2’s vehicle as they were neither aware of its approach in the vicinity nor did they have any prior anticipation that their colleagues in the police Land Cruiser ahead of them would flag it down to stop for whatever reason, or that PW 2 would defy the orders to stop. Furthermore, there was no evidence that the Appellants consulted each other before directing their firearms at the rear of PW 2’s vehicle as borne out from their own testimonies.
  5. The ingredients of common intention were as follows:-
    1. There had to be two or more persons;
    2. The persons had to form a common intention;
    3. The common intention had to be towards prosecuting an unlawful purpose in conjunction with one another;
    4. An offence had to be committed in the process;
    5. The offence had to be of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

    Applying the ingredients of the elements of common intention as against the Appellants. It was not disputed that the Appellants were the only members of the patrol crew who shot at PW 2’s vehicle during the second shooting incident. That satisfied the first ingredient of the need of two or more persons being participants in the execution of the act complained of.

  6. The second ingredient required the forming of the common intention. It did not state that the said forming of a common intention had to be before the execution of the act complained of. Both Appellants were categorical in their testimonies and correctly so, that their sole but separately formed reason for shooting at PW 2’s vehicle from the rear was to immobilize it. There was no evidence that the two consulted each other before firing at PW 2’s vehicle. The common intention which was to immobilize the vehicle was formed in the course of their separately intending to shoot at the rear of the vehicle with a view to immobilizing it. Ingredient two (2) was therefore also satisfied.
  7. As for the third ingredient, the unlawful purpose in the instant appeal did not result from the decision to shoot but from the end result of the shooting act complained of. There was nothing in the said ingredient to suggest that the unlawfulness of the act complained of could only result from factors that went to prove the onset of the action and not from the end result of the action. Thus, ingredient three (3) was satisfied.
  8. As for the fourth ingredient, it was undisputed and as correctly found by the Trial Court that the action resulting in the fatal shooting was not premeditated. That was why the Trial Court termed it unlawful, because it was unintentional. What the Appellants intended by shooting at the rear of PW2’s vehicle, which was accepted by the Trial Court was to immobilize the vehicle. Unfortunately for them, one bullet fatally injured the deceased. Therefore, Ingredient four (4) was satisfied.
  9. As for the fifth ingredient, PW2’s vehicle was in motion. The intention to fire at PW2’s vehicle was on impulse, allegedly provoked by the alleged failure by PW2 to stop. The Appellants ought to have known that since it was at night, there was the possibility of their ability to focus only on the rear tires of the vehicle could have been impaired, resulting in the bullets landing on other parts of PW2’s vehicle as it in fact did happen. That was why there were bullet holes at the rear of the vehicle instead of those being concentrated on the tires as the Appellants intended target. In that regard, the very fact that PW2’s vehicle was in motion should have been warning enough for the Appellants to anticipate the possibility of the presence of a person or persons other than the one propelling it. Likewise, there was the possibility of the occupants of PW2’s vehicle being injured in the process of the Appellants’ attempt to immobilize it which was not also remote and could not be ruled out. Therefore, the Appellants had to be taken to have intended the consequences of their actions, and especially for their failure to exercise some restraint when discharging their firearms, especially at night and directed at a moving vehicle.
  10. Upon consideration of the record and the rival submission, the Appellants were rightly convicted and sentenced. There was no basis to interfere and disturb the findings of the Trial Court which were based on sound evidence and correct application of the law to that evidence.

Appeal dismissed; both the conviction and sentences as handed down by the Trial Court were upheld.

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