Weekly Newsletter 002/2019

Weekly Newsletter 001/2019



Kenya Law

Weekly Newsletter


The Contempt of Court Act is unconstitutional.
Kenya Human Rights Commission v Attorney General & another
Constitutional Petition 87 of 2017
High Court at Nairobi
E C Mwita, J
November 9, 2018
Reported by Beryl A Ikamari
Download the Decision
 
Constitutional Law-national values and principles of governance-public participation-public participation in legislative processes-whether constitutional standards of public participation were met in the enactment of the Contempt of Court Act-Constitution of Kenya 2010, articles 10 & 118(b).
Constitutional Law-principles of interpretation-constitutional validity of a statute-presumption of constitutionality of a statute and determinations on the constitutionality of the purpose and effect of a statute-the principles applicable in determining whether the Contempt of Court Act was constitutional.
Contempt of Court -nature and purpose of contempt of court-difference between civil contempt and criminal contempt-whether the power of the Court to punish for contempt of court was inherent or it was granted by statute-Constitution of Kenya 2010, articles 159 & 2(1).
Statutes-constitutional validity of statutory provisions-constitutional validity of section 10 of the Contempt of Court Act-creation of a strict liability offence for publications about active proceedings made to the public, which created a substantial risk that could seriously impede or prejudice the course of justice-whether such a strict liability offence was justifiable as it limited defences that would otherwise have been available to a contemnor in a fair trial-Contempt of Court Act, No 46 of 2016, section 10.
Statutes-constitutional validity of statutory provisions-constitutional validity of section 19 of the Contempt of Court Act-claim that the prohibition of electronic recording of court proceedings violated the right to a fair trial-whether the prohibition was constitutional-Contempt of Court Act, No 46 of 2016, section 19.
Statutes-constitutional validity of statutory provisions-constitutional validity of section 30 of the Contempt of Court Act-claim that  section 30 of the Contempt of Court Act created differential treatment that favoured public officers as compared to private citizens-whether section 30 of the Contempt of Court Act was discriminatory and unconstitutional-Contempt of Court Act, No 46 of 2016, section 30.
Statutes-constitutional validity of statutory provisions-constitutional validity of section 34 of the Contempt of Court Act-limitation period-purpose of a limitation period-whether a statutory imposition of a 6 months limitation period for institution of contempt proceedings was reasonable, justifiable and constitutional-Contempt of Court Act, No 46 of 2016, section 34.
Statutes-constitutional validity of statutory provisions-constitutional validity of section 35 of the Contempt of Court Act-claim that section 35 elevated speakers of houses of parliament above the law by shielding them from contempt proceedings for decisions or directions made in the performance of official duties-whether the provision was constitutional-Contempt of Court Act, No 46 of 2016, section 35.
 
Brief facts:
The petitioner challenged the constitutionality of the Contempt of Court Act. It said that in purporting to limit the powers of the Court to punish for contempt, it took away power from the courts and eroded their independence. The petitioner added that the Act violated the constitutional principle wherein judicial power was vested in the judiciary and that the Act was enacted without public participation.
Specifically, the petitioner said that section 10 of the impugned Act was vague and it denied a contemnor defences available under the Act and it was therefore a violation of the right to a fair hearing. Section 30 of the Act, according to the petitioner, in shielding accounting officers of state organs and government departments, ministries or corporations by requiring courts to issue a show cause notice of not less than 30 days before contempt proceedings were commenced against them, violated the right of access to justice. Further, the petitioner faulted section 10 of the Act for creating inequality by providing that no state officer should be convicted for contempt for execution of his duties in good faith.
The petitioner said that section 34 of the Act limited the right to a fair hearing by stating that the limitation period for contempt proceedings was 6 months. Also, the petitioner contended that in disallowing proceedings for contempt in relation to decisions made by speakers in the performance of their official responsibilities, the Act elevated speakers above the law.

 
Issues:
  1. Whether there was public participation in the process leading to the enactment of the Contempt of Court Act.
  2. What were the principles applicable to a determination as whether a statute was constitutional?
  3. Whether a court's power to punish for contempt was inherent or it was granted by statute.
  4. What was the difference between civil contempt and criminal contempt?
  5. What was the purpose of punishment for contempt of court?
  6. Whether it was unconstitutional to limit the power of the court to punish for contempt of court via statutory provisions.
  7. Whether section 10 of the Contempt of Court Act was unconstitutional as it created strict liability for publications about active proceedings made to the public, which created a substantial risk that could seriously impede or prejudice the course of justice, and thereby denied an alleged contemnor defences that would otherwise have been available.
  8. Whether section 19 of the Contempt of Court Act which prohibited electronic recording of court proceedings was unconstitutional as it violated the right to a fair trial.
  9. Whether section 30 of the Contempt of Court Act was discriminatory as it provided for differential treatment of public officers as compared to private citizens.
  10. Whether section 34 of the Contempt of Court Act which provided for a 6 months limitation period for the institution of contempt proceedings was unconstitutional and violated the right to a fair hearing.
  11. Whether in disallowing the institution of contempt proceedings against a decision or direction given by speakers of legislative assemblies in the performance of official duty, section 35 of the Contempt of Court Act was unconstitutional as it purported to elevate speakers to a level above the law.
Held:
  1. Article 10(1) of the Constitution provided for public participation as one of the national values and principles of governance. In enacting the impugned Act the national assembly was bound to observe the principle of public participation as well as the principle of transparency and accountability. Under article 118 of the Constitution, Parliament was to conduct its business in an open manner and its sittings including the sittings of its committees were to be open to the public. Additionally, parliament should facilitate public participation and the people's involvement in its legislative work and other business including those of its committees.
  2. Where a petitioner made an allegation that a statute was enacted without public participation, the respondent was under a legal duty to demonstrate that the legislative process met constitutional standards of public participation. Since it was parliament's duty to ensure that there was public participation, the Attorney General, as the respondent had the legal burden to disprove the contention.
  3. The respondent merely stated orally that there was public participation and asked the Court to look at the entire legislative process undertaken in enacting the impugned Act and showed that the impugned Act was published on July 22, 2016. The respondent did not do anything or adduce any other evidence to demonstrate that public participation requirements were complied with during the enactment of the Act. The publication of the Act did not amount to public participation within the terms of article 118(1)(b).
  4. Public participation had to include and be seen to include the dissemination of information, invitation to participate in the legislative process and consultation on legislation. The people had to be accorded an opportunity to participate in the legislative process and that was a question of fact to be proved by the party which was required to comply with the constitutional requirement of public participation.
  5. Public participation was an important segment of the legislative process. There was no attempt by the respondent to show that there was public participation in the process leading to the enactment of the impugned Contempt of Court Act.
  6. There was a general rebuttable presumption that a statute or statutory provision was constitutional and the person alleging unconstitutionality had the burden of proving that the statute or its provisions were constitutionally invalid. That was because the legislature as the people's representative was presumed to understand the problems that the people they represented faced.
  7. One of the key principles in determining the constitutional validity of a statute was examining the statute's purpose or effect. The purpose of enacting legislation or the effect of implementing legislation could lead to the nullification of the statute or its provisions if it was found to be inconsistent with the Constitution.
  8. The long title of the Contempt of Court Act stated that it was intended to define and limit the powers of the Court in punishing for contempt of court. That long title seemed to contradict section 3 of the Act which stated that the objectives of the Act were to uphold the dignity and authority of the Court, ensure compliance with directions of the Court, observance and respect of the process of law, preserve an effective and impartial system of justice and maintain public confidence in the administration of justice as administered by the Court.
  9. Section 4 of the impugned Act defined both civil contempt and criminal contempt. Civil contempt was the wilful disobedience of any judgment, decree, directive, order or other process of court or wilful breach of an undertaking given to a court whereas criminal contempt was publication in any form whether by spoken or written words, visible signs or representation or conduct which tended to scandalize or lower the judicial authority of the Court or something that prejudiced or interfered with the course of justice.
  10. Disobedience and disregard of the authority of the courts would violate national values and the Constitution. In that regard, courts punished for contempt in order to maintain their dignity, authority, the rule of law, democracy and administration of justice as foundational values in the Constitution.
  11. Courts, under article 159 of the Constitution, made decisions for and on behalf of the people and those decisions had to be respected and obeyed in order to enhance public confidence in the judiciary and the preservation of constitutional democracy.
  12. Courts would punish contempt to insulate its processes for purposes of compliance to its orders so that the rule of law and administration of justice would not be undermined. Without that power or where it was limited or diminished, the court would be left helpless and its decisions would mean nothing.
  13. Courts had inherent power to punish for contempt. That power was part of the residual authority that courts were endowed with and it was not granted by statute. Courts used it to ensure that the ends of justice were met in the protection of society. Statute should only provide for how that power would be applied and it should make courts more effective but not limit their power. 
  14. Inherent power was the authority possessed by a court implicitly without it being derived from the Constitution or statute and that power enabled the judiciary to deliver on its constitutional mandate. Under article 159 of the Constitution, judicial authority was derived from and vested in the people and exercised on their behalf by courts and tribunals established by or under the Constitution. Therefore, the judiciary served the public and made pronouncements for and on behalf of the people. The powers of the Court had to be viewed in light of article 2(1) of the Constitution, and therefore any attempt to limit power to punish for contempt violated a foundational constitutional value on judicial authority. Any legislation on contempt had to be in addition to but not in derogation of the Constitution and derogation would be unconstitutional.
  15. The fact that the principle aim of the impugned Contempt of Court Act was to limit the power of courts to punish for contempt violated the letter and spirit of the Constitution. The Act could only aid but not stifle that power.
  16. Section 10 of the Act created strict liability contempt so that conduct would be treated as a contempt of court for tending to interfere with the course of justice in particular legal proceedings regardless of the intention to do so. The strict liability rule was applicable only to publications, including any speech, writing, broadcast or any other form of communication that was addressed to the public and only to publications relating to proceedings that were actively before court which created a substantial risk that could seriously impede or prejudice the course of justice. The provision aimed to protect the course of justice and it did not interfere with freedom of expression. It protected the integrity of judicial proceedings and the rights of those before the courts. Freedom of expression was not absolute and it could be limited to protect the right of others not to be vilified. The freedoms of others and the administration of justice were more important than the enjoyment of one's own freedoms.
  17. The limitation of the right to a fair hearing that section 10 of the impugned Act entailed was justifiable. Judicial officers would not be swayed by what they heard about a given party but the general public would be and that could prejudice the right to a fair trial. Restricting such publications as was done in section 10 of the Act ensured the right to an unbiased and fair public hearing. The limitation was justifiable in an open and democratic society.
  18. Section 19 of the impugned Act prohibited electronic recording of court proceedings by parties to the suit or case and made that recording a form of contempt of court. If one sought to record proceedings, provision was made for the court to exercise discretion whether to grant that leave. Recording court proceedings would not advance the right to a fair trial. It was not necessary to record proceedings and failure to record proceedings would not infringe on the parties' rights.
  19. Section 30(1) of the Act provided that if a state organ, government, department, ministry or corporation was guilty of contempt, the Court should serve a 30 days’ notice on the accounting officer requiring the accounting officer to show cause why contempt proceedings should not be commenced against him/her. The maximum fine for such officers for contempt of court was set at two hundred thousand Kenya shillings. Further the Act provided under section 30(6) that no state office would be convicted for contempt of court for execution of his duties in good faith. The provisions of section 30 were discriminatory and aimed at hampering the Court's ability to enforce its processes for the benefit of those it had awarded. There was no legitimate, reasonable or justifiable government purpose to be served by that differential treatment accorded to public officers as opposed to private citizens under the impugned provision.
  20. The fine imposed in section 30 of the Act was clearly protectionist in favour of government officials yet they could commit similar offences as other citizens. That was a form of unjustifiable discrimination that was outlawed by the Constitution.
  21. One could not act in good faith in wilfully disobeying or disrespecting court orders. Good faith could not be a defence for contempt of court. Section 30 of the impugned Act was therefore unconstitutional.
  22. Section 34 of the Act provided for 6 months as the limitation period for instituting contempt proceedings. Limitation periods served public interest. People were expected to pursue their claims with reasonable diligence and the lapse of time could mean that crucial evidence could be lost. The 6 months limitation period would not hinder the course of justice.
  23. Limitation periods had the purpose of ensuring that litigation was brought to a quick conclusion. Where a court order was violated, an aggrieved party could not wait for six months to commence contempt proceedings as in waiting for that long the aggrieved party would be deemed to have condoned the contemptuous act. There was no unconstitutional purpose or effect in the limitation period provided for in section 34 of the Act.
  24. Section 35 of the impugned Act disallowed the initiation of contempt proceedings in relation to a decision made or directions given by a speaker of a house of parliament in the performance of his or her official responsibilities. Courts punish for deliberate and wilful disobedience of their orders or processes and not for the mere discharge of duties or functions. The power to punish for contempt of court was a constitutional power and section 35 in so far as it attempted to limit that power was inconsistent with the Constitution and invalid.
Petition allowed.
Orders:-
  1. A declaration was issued to the effect that sections 30 and 35 of the impugned Contempt of Court Act, No 46 of 2016, were inconsistent with the Constitution and were therefore null and void.
  2. A declaration was issued to the effect that the entire Contempt of Court Act, No 46 of 2016, was invalid for lack of public participation as required by articles 10 and 118(b) of the Constitution and encroached on the independence of the judiciary.
  3. No order as to costs.
 
Kenya Law
Case Updates Issue 005/2019
Case Summaries

JURISDICTION The requirements to be fulfilled by a newspaper report on court proceedings before it could qualify as being absolute privileged information.

J.P. Machira t/a Machira & Co.Advocates v Wangethi Mwangi & another [2018] eKLR
HCCC 1338 of 2000
High Court at Nairobi
R Mwongo, J
September 27, 2018
Reported by Kakai Toili

Download the Decision

Tort Law-defamation-libel-defences-absolute privilege-where a newspaper published a report based on court proceedings-what were the requirements to be satisfied before absolute privilege could be established in a newspaper report on court proceedings-what was the purpose of the rule of absolute privilege-whether documents which had not been subject to a court’s attention were privileged information-whether findings made by a court after an alleged defamatory report had been made could be considered in determining a defamatory suit-what was the effect of publishing of a fair and accurate report after publishing a defamatory one-Defamation Act, section 6
Evidence Law-burden of proof-burden of proof in defamation cases-where a newspaper report was alleged to fall under the four-point test on absolute privilege in section 6 of the Defamation Act-who bore the burden of proof in determining whether a newspaper report fell under four-point test on absolute privilege in section 6 of the Defamation Act- Defamation Act, section 6

Brief facts:
On July 26, 2000, the defendants published a newspaper report entitled ‘Lawyer flattens his client’s house (report 1), the report explained that the plaintiff demolished the matrimonial home of his ailing client. The client was said to be of unsound mind and had been admitted at Mathari Mental Hospital. On July 27, 2000, the defendants published another report titled ‘Woman kept off disputed property’(report 2). The report stated that guards stationed over property stopped the client’s wife and caused the clients children to be evicted. On  August 1, 2000, the defendants published a report entitled ‘Court stops demolition of house’(report 3) stating that the plaintiff was stopped from demolishing more houses owned by a family he had evicted.
Aggrieved by the said reports the plaintiff, who was an advocate of the High Court, filed the instant defamation suit seeking general, aggravated and exemplary damages among other orders. According to the plaintiff, all the facts and matters which would have aided the defendants in publishing the truth were available in court records and in the judgment of the court in HCCC No 113 of 1999.

Issues:

  1. What were the requirements to be satisfied before absolute privilege could be established in a newspaper report on court proceedings?
  2. Who bore the burden of proof in determining whether a newspaper report fell under four-point test on absolute privilege in section 6 of the Defamation Act?
  3. What was the purpose of the rule of absolute privilege?
  4. Whether documents which had not been subject to a court’s attention were privileged information.
  5. What was the effect of publishing of a fair and accurate report after publishing a defamatory one?
  6. Whether findings made by a court after an alleged defamatory report had been made could be considered in determining a defamatory suit. Read More..

Relevant Provisions of the Law
Defamation Act
Section 6
 A fair and accurate report in any newspaper of proceedings heard before any court exercising judicial authority within Kenya shall be absolutely privileged; provided that nothing in this section shall authorise the publication of any blasphemous, seditious or indecent matter.

Held :

  1. To qualify for the protection of absolute privilege under section 6 of the Defamation Act (the Act), a newspaper report had to have the following characteristics:
    1. it had to be a report of proceedings heard before a court exercising judicial authority;
    2. it had to be a fair report of those proceedings;
    3. it had to be an accurate report of those proceedings and
    4. it should not contain any blasphemous, seditious or indecent matter.
    If that four-point section 6 test was satisfied by the newspaper report, absolute privilege automatically attached.
  2. The essence of the rule as to absolute privilege was that anything stated by parties in court and which could therefore be seized of in the court record, could, subject to other legal qualifications such as in camera proceedings, be the subject of a newspaper report provided that it was a fair and accurate report. It was necessary to carefully look at the statements published, compare and contrast them with the court record to assess the four point test under section 6 of the Act.
  3. It was for the party that sought to rely on the provisions of section 6 of the Act to prove that the report qualified under the four-point test. The defendants did not take any serious steps to prove that their report was fair and accurate other than asserting so in their defence and attaching the proceedings alongside their reports.
  4. There were critical discrepancies and differences between report 1 and the proceedings; report 1 was generally inaccurate and exaggerated. Report 2 was also inaccurate and exaggerated. Report 3 generally covered what transpired in the proceedings, but in far less detail. That report was not either generally exaggerated or an inaccurate report of what transpired in the proceedings.
  5. The object of the rule on absolute privilege was that it was intended to protect newspapers that report the content of what happened or was said in court during proceedings. It was not intended to give protection regarding material which had not been heard by or put to the court during the judicial proceedings. In the instant case, the affidavits of the client’s wife from which the defendant reporter mined information for his reports before the chamber summons application had been fixed for hearing, were reported upon prematurely and without privilege.
  6. Reports 1 and 2 had more information than had been raised before the Trial Court on July 25 and 26, 2000, according to the record of proceedings prior to the hearing of the actual application. That resulted in the substantial inaccuracies and differences between the two reports and the proceedings, and led to the overall misreporting and appearance of unfairness and bias towards the plaintiff.
  7. Until documents were formally put on the floor or raised in open court, or became the subject of the attention of the court, they would generally not be amenable to publication in a newspaper. As such, they would not be entitled to privilege. Accordingly, the proceedings which the defendants reported on were court proceedings in terms of section 6 of the Act, but reports 1 and 2 were not privileged, as they were not fair and accurate. Report 3 was a fair representation of the proceedings that occurred in court and though not restated in the same words as the proceedings, it was nevertheless in consonance with them.
  8. Some of the evidence that the Court could not take into account included findings that were subsequently made by the Trial Court long after the fact of publication of the reports and which were supportive of the plaintiff.
  9. Reports 1 and 2 were biased, unfair, and had false reporting that resulted in defaming the plaintiff by painting him in a light that was unsavoury and demeaning. The defendants were under duty to give fair and accurate coverage of the proceedings. The plaintiff was injured in his reputation as an advocate of many years’ standing. An advocate depended on his professional reputation for a continued flow of clients and hence his livelihood. The defendant newspaper had a national circulation and therefore numerous people had access to information published by them.
  10. There was no set formula for assessing damages. The common method appreciated in practice was to compare cases of similar nature and to take a perspective of damages based on such comparisons. Reports 1 and 2 contained defamatory material. Those reports were published on July 26 and 27, 2000. On July 31, 2000, report 3 was published that reiterated all the material in reports 1 and 2, but being a fair record of the court’s proceedings, privilege was attached to it under section 6 of the Act. The defamatory effect was watered down and diminished by the latter privileged material. There remained defamation for a period, in respect of reports 1 and 2, but its full effect was watered down by report 3 which was privileged and thus diminished the injury and damage to the plaintiff and therefore reduced damages.

Suit partly allowed

  1. Defendant to pay the plaintiff a composite figure of damages of Kshs 5,000,000/=.
  2. Plaintiff awarded costs of the proceedings, with interest at court rates.
CRIMINAL LAW Requirements to be met before a suspended sentence could be issued.

Wilson Gathungu Chuchu v Republic [2018] eKLR
Criminal Appeal Number 30 of 2016
High Court at Nairobi
G W Ngenye-Macharia
October 24, 2018.
Reported by Kakai Toili

Download the Decision

Criminal Law-sentences-suspended sentences-what were the requirements to be met before a suspended sentence could be issued-what was the effect of committing an offence while serving a suspended sentence and when did the suspended sentence stop running- Criminal Procedure Code, section 15
Criminal Law- malicious damage to property- elements of malicious damage to property- what were the elements of malicious damage to property-whether cutting down of branches of a fence trespassing on another person’s land amounted to malicious damage to property and therefore unlawful- Penal Code, section 339 (1)
Words and Phrases-malice-definition of malice- the intent, without justification or excuse, to commit a wrongful act or reckless disregard of the law or of a person’s legal right-Black’s Law Dictionary, 9th Edition

Brief Facts:
The appellant was charged with the offence of malicious damage to property, the particulars of the offence were that the appellant willfully and unlawfully damaged a Kei Apple fence (fence) and one indigenous tree(tree) belonging to the complainant. The Trial Court found the appellant guilty and sentenced him to serve a two year suspended sentence. Aggrieved by the conviction and sentence, he filed the instant appeal.

Issues:

  1. What were the requirements to be met before a suspended sentence could be issued?
  2. What was the effect of committing an offence while serving a suspended sentence and when did the suspended sentence stop running?
  3. What are the elements of malicious damage to property?
  4. Whether cutting down of branches of a fence trespassing on another person’s land amounted to malicious damage to property and therefore unlawful.  Read More...

Relevant Provisions of the Law
Penal Code
Section 339 
(1)  “Any person who willfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanor, and is liable, if no other punishment is provided, to imprisonment for five years.”

Criminal Procedure Code
Section 15
(1)  Any court which passes a sentence of imprisonment for a term of not more than two years for any offence may order that the sentence shall not take effect unless during the period specified by the court (herein called the “operational period”) the offender commits another offence, whether that offence is punishable by imprisonment, corporal punishment or by a fine.
(2)  (2)Where the offender is convicted of an offence during the operational period the sentence for the first offence in respect of which the offender was convicted under subsection (1) shall thereupon take effect.
(3)  Where under subsection (2) the sentence passed for the first offence under subsection (1) takes effect the sentence passed for the subsequent offence shall run consecutively to the sentence passed for the first offence.”

Held:

  1. The Court had to bear in mind that it had neither seen nor heard the witnesses. The offence of malicious damage to property was defined under section 339 (1) of the Penal Code. Under the definition in section 339(1), the elements of the offence could be dissected as:
    1. proof of ownership of the property,
    2. proof that the property was destroyed or damaged,
    3. proof that the destruction or damage was occasioned by the accused, and
    4. proof that the destruction was willful and unlawful.
  2.  It was the onus of the prosecution to discharge the burden of demonstrating that it was the appellant who willfully and unlawfully damaged the identified property. While PW4, a forest officer who visited the scene, was an expert witness, his suspicion that chemicals were used to cause the damage was not corroborated by tests to ascertain the same. The tree was within the complainant’s compound and none of the witnesses testified to the appellant having access to the tree. The evidence of PW4 was clearly not based on any scientific evidence. He did not adduce any iota of evidence that his observations were consistent with a chemical attack.
  3. While the appellant did not deny pruning the fence, there was no evidence that he interfered with the tree. The appellant simply pruned the fence that was adjacent to his land. No evidence was provided that the appellant crossed over the boundary of barbed wire marking the two parcels of land. It was therefore untenable to arrive at a conclusion based on visual observation that a chemical was used to damage the tree or the fence. There was no nexus between the appellant and the destruction of the tree. Any reliance on its damage to his culpability was not plausible.
  4. The fence was trespassing into the appellant’s land and causing a nuisance. The law of nuisance allowed the appellant to quell the persisting nuisance. The manner in which such a nuisance could be abated varied and the need to involve the party from whom the nuisance emanated before determining to quell it was necessary in most cases. However, an exception existed with regards to tree branches.
  5. In the instant case, the appellant merely cut down the branches of the fence that were on his property whilst trying to quell a persisting nuisance due to the continued encroachment of the fence onto his property. His actions were not inherently unlawful; they affected the fence but were not done with malice. That could not be deemed as unlawful within the definition accorded to the word malice in the Black’s Law Dictionary.
  6. Suspended sentences were legal as set out in section 15 of the Criminal Procedure Code. From section 15, the trial court before suspending the sentence had to first impose it. It applied to where the sentence imposed was not more than two years imprisonment. It was applied as a contingent discretionary measure premised on the circumstances of a case.
  7. Section 15 of the Criminal Procedure Code provided that the suspended sentence was conditional, that implied that it served as a grace period within which the accused should not commit an offence. Conditions had to be set by the trial court in the event that the accused committed an offence during the period the sentence was suspended, paramount being that the suspension period stopped running if he committed another offence and that he served the sentence imposed. The court had to state the period of the suspension. It also had to spell out that the subsequent sentence should run consecutively to the first sentence.
  8.  The Trial Court did not follow the laid down procedure in suspending the sentence, it suspended the sentence without first imposing it. The Trial Court erred in failing to state the period the suspension would remain in operation.

Appeal allowed

  1. Appellant’s conviction quashed, appellant’s sentence set aside and an order issued that the appellant be set free unless lawfully held.
CRIMINAL LAW A charge that revealed two independent offences was not curable as such an irregularity occasioned a failure of justice under section 382 of the Criminal Procedure Code.

Hassan Jillo Bwanamaka & another v Republic [2018] eKLR
Criminal Appeal 1 of 2017
High Court at Mombasa
P Nyamweya, J
November 27, 2018
Reported by Kakai Toili

Download the Decision

Criminal Law-unlawful possession-possession of explosives- ingredients of the offence of possession of explosives-what were the ingredients of the offence of being in possession of explosives-whether the mere possession of an explosive was sufficient to prove the offence of possession or control of an unauthorized explosive-Explosives Act, section 6
Criminal Procedure-charges-defective charges-where a charge  revealed two independent offences-where a charge was not disclosed by evidence-whether a charge which was not disclosed by evidence was defective-whether a charge that revealed two independent offences was curable under section 382 of the Criminal Procedure Code which provided that no sentence or finding of a competent court could be reversed unless the error, omission or irregularity occasioned a failure of justice - Explosives Act, section 29; Criminal Procedure Code, section 382
Criminal Procedure–retrial–factors to consider before ordering a retrial-what were the factors to be considered before ordering a retrial

Brief facts:
The 1st appellant was charged with four counts in the Trial Court. The four counts were; being in possession of unauthorized explosive, being a member of an unlawful society, being in possession of paper or implements of forgery and incitement to violence. The 2nd appellant on the other hand was charged with being in possession of unauthorized explosive and incitement to violence. Upon trial, the appellants were both convicted of being in possession of unauthorized explosive and were each sentenced to seven years imprisonment. They were acquitted of the other charges. Aggrieved by the Trial Court’s decision they filed the instant appeal on the ground that they were convicted based on a count that was duplex and that the prosecution had failed to prove their case beyond reasonable doubt among other grounds. The 1st appellant died while undergoing treatment before the instant case had been finalized therefore his appeal abated.

Issues:

  1. What are the ingredients of the offence of being in possession of explosives?
  2. Whether a charge which was not disclosed by evidence was defective.
  3. Whether a charge that revealed two independent offences was curable under section 382 of the Criminal Procedure Code which provided that no sentence or finding of a competent court could be reversed unless the error, omission or irregularity occasioned a failure of justice.
  4. What were the factors to be considered before ordering a retrial?
  5. Whether the mere possession of an explosive was sufficient to prove the offence of possession or control of an unauthorized explosive.Read More..

Relevant Provisions of the Law
Explosives Act
Section 2
“explosives” means—

(a)      gunpowder, nitro-glycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those herein or not, which is used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect;
(b)      any fuse, rocket, detonator or cartridge, and every adaptation or preparation of an explosive as herein defined; or
(c)      any other substance which the Minister may, by notice in the Gazette, declare to be an explosive, but does not include ammunition as defined in the Firearms Act (Cap. 114).”

Section 4
(1)  No person shall manufacture any unauthorized explosive unless—

(a)   it is manufactured solely for the purposes of chemical experiment and not for sale, and in quantities not exceeding five hundred grams in weight at any one time, or two kilograms in all; or
(b)   it is manufactured solely for practical trial as an explosive and not for sale, and in such quantities and under such conditions as may be specified in writing by an inspector.

(2)  Any person who contravenes the provisions of this section or any conditions imposed under the powers thereof shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or, in default of payment, to imprisonment for a term not exceeding two years, and the explosive in respect of which the contravention has taken place shall be forfeited.
(3)  The owner and the occupier of any premises in or on which an unauthorized explosive has been manufactured in contravention of this section shall be deemed to be the manufacturer, unless such owner or occupier (as the case may be) satisfies the Court before which he is charged that he was unaware that any such contravention was occurring or had occurred.
(4)  The burden of proving that any manufacture of an unauthorized explosive was solely for purposes of chemical experiment or practical trial and not for sale shall, in any prosecution under this section, be upon the accused.”

Section 6
1)     No person shall keep, store or be in possession of any unauthorized explosive—

(a)   unless it has been manufactured as provided by section 4(1)(a), and does not exceed two kilograms in weight; or
(b)   unless it has been manufactured as provided by section 4(1)(b), and is kept, stored or possessed in such manner and in such quantities as have been approved in writing by an inspector.

2)     Subsections (2), (3) and (4) of section 4 shall apply mutatis mutandis in the event of any contravention of this section or of any of the conditions imposed thereunder.

Section 29
“Any person who makes or knowingly has in his possession or under his control any explosive, in circumstances which give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence and liable to imprisonment for a term not exceeding seven years, and the explosive shall be forfeited.”

Firearms Act
Section 2
 “ammunition” means any cartridge, whether a blank, tracer, explosive, incendiary, gas-diffusing, signalling or any other cartridge of any other kind capable of being discharged from or used with a firearm and includes—

(a)   any grenade, bomb or other missile whether explosive or not and whether or not capable of or intended for use with a firearm;
(b)   any mine whether for use on land or at sea, depth-charge or other explosive charge;
(c)   any other container or thing designed or adapted for use in or as weapon for the discharge of any noxious liquid, gas or other substance;
(d)   any projectile, powder or other charge, primer, fuse or bursting charge forming part of any cartridge or any component part thereof; and
(e)   any ammunition or pellets for use in an airgun, air rifle or air pistol;”

Criminal Procedure Code
Section 134
 “Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature  of the offence charged.”

Section 382
Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

Held:

  1. The rule against duplicity provided that the prosecution should not allege the commission of two or more offences in a single charge in a charge-sheet.  Such a charge was sometimes said to be duplex or duplicitous. The rule stemmed from two important principles:
    1. As a matter of fairness, a person charged with a criminal offence was entitled to know the crime that they were alleged to have committed, so that they could either prepare and/or present the appropriate defence. 
    2. The court hearing the charge had to know what was alleged so that it could determine the relevant evidence, consider any possible defences and determine the appropriate punishment in the event of a conviction.
  2. The ingredients of the offence of being in possession of unlawful explosives in section 6 of the Act  was being in possession of explosive which:
    1.  had not been manufactured solely for the purposes of chemical experiment and  were not for sale, and
    2. did not exceed two kilograms in weight; or
    3. had been manufactured solely for the purposes of chemical experiment and  were not for sale and were kept, stored or possessed in such manner and in such quantities that had not been approved in writing by an inspector.
  3. There was a defect that was apparent in the charge, the particulars of the charge indicated that the 2nd appellant was found in possession of explosives namely three hand grenades, which did not disclose an offence under section 6 of the Act. A grenade was not an explosive under section 6. The law on the framing of charges required clarity in the charge as stated in section 134 of the Criminal Procedure Code.
  4. A charge that was not disclosed by evidence was defective. Section 29 of the Act provided for the offence of possession or control of an explosive for an unlawful object. In addition to being in possession of an explosive, an additional ingredient required to be proved in the said offence was that the said possession was for purposes of perpetrating an unlawful object, which the Trial Court found was not proved. The charge in the instant case also suffered from the defect that it was not supported by the particulars as a grenade was not an explosive.
  5. If the charge revealed two independent offences where one could not be subsumed in the other in the sense of all the ingredients of one of the offences being included in the other offence, and the evidence adduced pursuant to such a charge did not disclose any of the offences, then that was a defect that was not curable under section 382 of the Criminal Procedure Code.
  6. The defect in the instant appeal was not one that was curable under section 382 of the Criminal Procedure Code, as there were two offences disclosed by the charge, which offences required specific and separate ingredients to be proved, and which attracted different penalties under the law.  In addition, those offences were not supported by the particulars. There was prejudice caused to the 2nd appellant as it would not have been clear what offence or sentence was applicable to her.
  7.  Given that the proceedings were based on a defective charge, it was not prudent in the circumstances to consider the remaining issues which would go into the merits of the findings of the Trial Court.
  8. A retrial would be ordered only when the original trial was illegal or defective. It would not be ordered where the conviction was set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where a conviction was vitiated by a mistake of the trial court for which the prosecution was not to blame, it did not necessarily follow that a retrial should be ordered. Each case depended on its particular facts and circumstances and an order for retrial should only be made where the interests of justice required it and should not be ordered where it was likely to cause injustice to the accused person.
  9. The instant case was not a proper case for retrial, there were gaps in the evidence as to the 2nd appellant’s possession of the grenades, especially as it was all circumstantial and inconsistent. In addition, a retrial would be prejudicial to the 2nd appellant, who had spent close to two years in custody.

2nd appellant’s appeal allowed,

  1. The 2nd appellant’s conviction for the offence of being in possession of unauthorized explosive contrary to section 6(1)(a) as read with section 29 of the Explosives Act was quashed.
  2. The sentence of seven years imprisonment imposed upon the 2nd appellant for this conviction was set aside and the 2nd appellant was set at liberty unless otherwise lawfully held.
CONSTITUTIONAL LAW Nature and scope of conduct that is protected by parliamentary privilege.

Republic v Ethics and Anti-Corruption Commission Ex parte Nairobi City County Assembly & 13 others
Miscellaneous Civil Application 383 of 2018
High Court at Nairobi
John M Mativo, J
January 17, 2019
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-parliament-privileges, powers and immunities of parliament-parliamentary privilege-scope and extent of parliamentary privilege-conduct by members of a county assembly that could give rise to criminal culpability-claim that members of a county assembly went to the speaker's office, wailed, shouted and engaged in violent conduct towards her and her staff-whether such conduct was within the scope of conduct protected in parliamentary privilege.
Statutes-interpretation of statutory provisions-interpretation of sections 15, 16 & 17(2) of the County Assemblies Powers and Privileges Act-matters of misconduct referable to the Powers and Privileges Committee of a county assembly-whether a matter which could be referred to the Powers and Privileges Committee could form the subject of criminal investigations and criminal proceedings-County Assemblies Powers and Privileges Act, No 6 of 2017, sections 15, 16 & 17(2).
Constitutional Law-leadership and integrity-mandate of the Ethics and Anti-Corruption Commission (EACC)-alleged misconduct by members of a county assembly in breach of constitutional provisions on leadership and integrity-whether the EACC had the mandate to summon and investigate members of a county assembly who had engaged in misconduct-Constitution of Kenya 2010, article 252; Anti-Corruption and Economic Crimes Act (Cap 65), section 11(1)(d).

Brief facts:
The ex parte applicant with other members of the County Assembly of Nairobi, participated in impeachment proceedings relating to the speaker of the County Assembly. Despite the existence of a resolution in favour of her impeachment, the speaker reported to duty on September 10, 2018. At around 11:30a.m., on the day the speaker reported to work, the ex parte applicants were involved in a fracas at the speaker’s office wherein they wailed, shouted and engaged in violent conduct directed at the speaker and her staff.
On September 11, 2018, the EACC (Ethics and Anti-Corruption Commission) wrote to the 2nd to 14th ex parte applicants to summon them to appear before it at 2pm on September 13, 2018 and also wrote another letter to the Clerk of the County Assembly asking for the Hansard and other relevant documents and information about the impeachment. The ex parte applicants sought orders of certiorari to quash the EACC'S decision to summon them and to ask for information from the Clerk of the County Assembly. They also sought orders of prohibition to prevent the investigation of the 2nd to 14th ex parte applicants on account of the impeachment proceedings.
The ex parte applicants explained that the impeachment was conducted as part of their legislative duties. They said that there was immunity attached to such proceedings under the provisions of article 196(3) of the Constitution which provided for powers, privileges and immunities of County Assemblies, their Committees and Members. Additionally, the ex parte applicants stated that the EACC was acting ultra vires when it purported to investigate them as it had no powers to question the legislative proceedings of a county assembly.
The ex parte applicants said that the solution offered to a violation of privilege by a member of a county assembly, under sections 15, 16 and 17 of the County Assemblies Powers and Privileges Act, was referral of the matter to the Committee of Powers and Privileges. They said that in failing to follow that procedure, the EACC was usurping the role of the Committee of Powers and Privileges and acting ultra vires.
The respondent stated that the conduct under investigation was an incident on September 10, 2018, outside of the debating chambers, wherein the ex parte applicants shouted, wailed and engaged in violent conduct directed at the Speaker and her staff. Such conduct, according to the respondent, could be compared to the provisions of articles 73(1)(a)(ii)(iii) and (vi) and 75(1)(c) of the  Constitution which regulated the conduct of state officers.

Issues:

  1. Whether a scuffle outside a speaker's office where members of a county assembly wailed, shouted and engaged in violent conduct towards the speaker and her staff, was within the category of conduct that was protected by parliamentary privilege.
  2. What was the extent and scope of parliamentary privilege?
  3. Whether a matter which could be referred to the Powers and Privileges Committee of a county assembly was one that could not form the subject of criminal investigations or criminal proceedings.
  4. Whether the EACC had the mandate to investigate and summon members of a county assembly who were alleged to have engaged in misconduct which violated constitutional provisions on leadership and integrity. Read More..

Held:

  1. Legislative bodies enjoyed certain legal privileges, powers and immunities known as parliamentary privilege. Parliamentary privilege was designed to remove impediments or restraints to the legislature going about its work and to enable it deal with challenges to its authority. Its justification in law included separation of powers i.e. freedom from control by the executive and the courts, giving the legislature power to facilitate it to undertake its functions and for its members and other participants in its proceedings to enjoy certain immunities for the legislature to discharge its functions effectively.
  2. The ex parte applicants did not deny engaging in the scuffle under investigation nor did they explain how such a scuffle formed part of a privileged legislative process. The details of the scuffle that occurred at around 11:30am on September 10, 2018 were that the ex parte applicants shouted, wailed and engaged in violent conduct directed at the speaker and staff in the speaker's office.
  3. The allegation that the investigation related to a legislative process was not supported by the ex parte applicants' documents. The letter exhibited by the ex parte applicants showed that the investigation related to the scuffle and not the impeachment process. The letters summoning them clearly stated the reason why they were being summoned.
  4. Privilege essentially belonged to the house as a whole; individual members could only claim privilege insofar as any denial of their rights, or threat made to them, would impede the functioning of the house. In addition, individual members could not claim privilege or immunity for matters that were unrelated to their functions in the house.
  5. The conduct that the EACC sought to investigate was not established in any civilized parliamentary system as capable of being within the category and scope of matters that could be accorded parliamentary privilege and it could not pass the test of the doctrine of necessity or be claimed to be closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative or a deliberative body. An honourable member was not reasonably expected to stoop so low and engage in a despicable fracas and such a fracas could not be construed as part of the legislative process and qualify for legislative immunity.
  6. Parliamentary privilege would not exist "at large" but it would apply only in context, which usually meant within the confines of the parliamentary precincts and a "proceeding in parliament." The fracas in question, was not part of proceedings of the county assembly or part of the legislative process, proceedings or deliberations of the county assembly.
  7. The gist of the established principles relating to the scope/span/range/extent/reach of parliamentary privileges in common law countries over the centuries were summarised as follows:-
    1. parliamentary privileges were privileges of the house as a whole.
    2. Individual members could make claims of privilege in so far as any denial of their rights or threats made to them would impede the functioning of the house.
    3. The method for ascertaining the scope or range of parliamentary privileges was to consult the records of the house and relative case laws in which a claim of privilege had been made, and to examine whether it had been admitted or refused.
    4. A parliamentary privilege would not be allowed in cases between non-members of parliament or the cases between the members of parliament outside the area of parliamentary proceedings in their individual capacity.
    5. Parliamentary privileges were only such rights and immunities which were necessarily connected and were reasonably necessary for the smooth functioning of any legislative body.
    6. Parliamentary privileges included statements by members of the legislature in the course of its proceedings, and the right to remove, suspend or even expel a member for disorderly conduct.
    7. Parliamentary privileges did not include suspension or even expulsion of a member for disorderly conduct, for an indefinite period, or punishment by arrest and commitment.
    8. The right to punish contempt which did not obstruct its proceedings was not within the scope of any parliament of the common law.
    9. The courts could not intervene in matters affecting regularity of the parliamentary procedure and the actions of officers in carrying out the procedure of parliament.
    10. Houses of parliament could not extend their privileges.
    11. Houses of parliament could not claim for themselves new privileges.
    12. Only an Act of Parliament could create a new privilege or extend an old privilege.  Parliament could apply its rights to new circumstances.
  8. The fracas in question, if proved, could result in criminal culpability and it therefore could not constitute part of the legislative process. The immunity contemplated under the law could not be stretched to protect such conduct.
  9. Section 17(2) of the County Assemblies Powers and Privileges Act, did not preclude criminal investigation or criminal proceedings against a Member in relation to a matter under inquiry before a County Assembly. The fact that the issue could be referred to the Powers and Privileges Committee did not preclude the EACC from investigating it.
  10. In judicial review, the Court would be concerned with the lawfulness of the process used to arrive at a decision and could only set aside that decision if the process was flawed. The Court would not act as an appellate court. As long as the processes followed by the decision-maker were proper and the decision was within the confines of the law, a court would not interfere.
  11. The task for the courts in evaluating whether a decision was illegal was essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker and under the circumstances, the following factors were relevant:-
    1. the summons complained of have not been shown to be illegal or ultra vires or outside the functions and constitutional and statutory mandate of EACC;
    2. no abuse of power was proved and it had not been shown that power was not exercised as provided under the law; and, 
    3. an administrative or quasi-judicial decision could only be challenged  for illegality, irrationality and procedural impropriety.
  12. Statutes did not exist in a vacuum-they were located in the context of contemporary democracy and the rule of law and other fundamental principles of democratic constitutionalism should be presumed to inform the exercise of all official powers unless Parliament expressly excluded them.
  13. In chapter six of the Constitution provisions related to leadership and integrity for all public officers were made. Under those provisions conduct that did not bring honour, public confidence and integrity had no place in the management of public affairs. Article 73 of the Constitution provided that authority assigned to a state officer was a public trust to be exercised in a manner that was consistent with the purposes and objects of the Constitution, demonstrated respect for the people, brought honour to the nation and dignity to the office and promoted public confidence in the integrity of the office.
  14. The EACC was established pursuant to article 79 of the Constitution. Section 11(1)(d) of the Anti-Corruption and Economic Crimes Act gave the EACC the mandate to investigate and recommend to the DPP the prosecution of any acts of corruption or violation of codes of ethics or other matters prescribed under that Act or any other laws enacted pursuant to chapter six of the Constitution.
  15. Under chapter six of the Constitution, a state officer, whether in public and official life or in private life, was required to behave in a manner that avoided demeaning the office that the officer held. The Court could not accept an invitation to grant orders that were not in line with clear constitutional provisions.
  16. Article 252 of the Constitution mandated the EACC to invite or summon any person for purposes of undertaking its investigations. The Court was inclined to respect the EACC's decision for four reasons:-
    1. it was a constitutional imperative that the constitutional role  EACC had to be respected;
    2. for the Court to intervene, there had to be clear evidence of breach of a constitutional duty to act fairly and legally on the part of EACC or clear abuse or misuse of discretion;
    3. the Court had a constitutional obligation to foster a culture of integrity in public service by requiring state officers to exhibit high standards of ethical conduct both in public and private; and,
    4. the Constitution provided in peremptory terms that every person had an obligation to respect, uphold and defend the Constitution.
  17. Judicial review remedies were discretionary. Even if the Court found that a public body acted wrongfully, it had the discretion not to grant a judicial review remedy. Discretion could be exercised against an applicant, for example, where the applicant's conduct was unmeritorious or unreasonable or the applicant did not act in good faith or where the remedy would impede on an authority's ability to deliver fair administration or legally discharge its mandate or where the Court was of the opinion that an alternative remedy could have been pursued.
  18. The ex parte applicants ought to have subjected themselves to the EACC process and then challenge it if they were aggrieved. Provided that the EACC acted within its mandate, the Court would not interfere with it. Additionally, the law did not permit the ex parte applicants to use immunity as a shield against criminal culpability.

Application dismissed.

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